Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services Pty Ltd [2020] FWCFB 1235 (12 March 2020)

[2020] FWCFB 1235

The attached document replaces the document previously issued with the above code on 12 March 2020.

[2020] FWCFB 1235

Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [[2019] FWC 5890] of Deputy President Lake at Brisbane on 23 August 2019 in matter number AG2018/5225.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Lake on 23 August 2019[1] (decision) in which he approved the Spotless Central Queensland Coal Facilities Management Enterprise Agreement (Agreement). The CFMMEU contends that the decision was made in error because, in respect of the classification of Level 2 - Heavy Cleaner provided for in the Agreement, the Agreement did not pass the better off overall test (BOOT).

[2] It is a requirement for approval of an enterprise agreement under s 186(2)(d) of the Fair Work Act 2009 (FW Act) that, subject to the operation of ss 189 and 190, the Commission must be satisfied that the Agreement passes the BOOT. The content of the BOOT in respect of non-greenfields agreement is provided for in s 193(1) as follows:

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee .

[3] Under s 193(1), a comparison is required to be made between the enterprise agreement in question and the "relevant modern award" in respect of "award covered employees" and "prospective award covered employees" in order to determine if the BOOT is passed. The definition of the expression "award covered employee" in s 193(4) makes it apparent that a "relevant modern award" is one that at "test time" is in operation, covers the employee in relation to the work they are required to perform under the agreement, and covers their employer. An equivalent definition is contained in the definition of "prospective award covered employee" in s 193(5). The "test time" is, under s 193(6), the time the application for approval of the agreement is made. It is therefore necessary for the relevant modern award(s) to be identified in order to correctly assess whether an agreement passes the BOOT.

[4] Spotless Facility Services Pty Ltd (Spotless) is the employer bound by the Agreement, and it made the application for approval of the Agreement on 17 September 2018. The Form F17 statutory declaration which accompanied the application for approval of the Agreement identified (at paragraph 3.1) eight awards as being the relevant modern awards for the purpose of the BOOT. These included the Cleaning Services Award 2010 (Cleaning Award), but did not include the Black Coal Mining Industry Award (BCMI Award). On 2 October 2018 the CFMMEU wrote to the Commission indicating that it was a bargaining representative for the Agreement, that it sought permission to be heard in relation to the approval of the Agreement and, if such permission was granted, it would oppose the approval of the Agreement. The CFMMEU ultimately pressed only one issue in relation to the Agreement, namely that the BCMI Award and not the Cleaning Award was the relevant modern award for the purpose of the BOOT in respect of the Level 2 - Heavy Cleaner classification. It appears to have been common ground that if the CFMMEU's contention was correct, the Agreement would not pass the BOOT, but that otherwise there was no difficulty with the BOOT. This issue, which was the only contested issue, was eventually the subject of a hearing before the Deputy President on 28 June 2019.

c) Employees of the Company engaged in the classifications set out in Appendix D to provide services at the following coal mine operations, and the associated accommodation villages servicing these mine operations:

This Agreement applies to Employees engaged to perform work in the classifications set out in Appendix D, who are employed by the Company in relation to work performed at coal mine operations and associated village, housing and town services in Queensland.

[7] In general terms, the classifications in Appendix D encompass persons performing food preparation, food service, cleaning (including industrial cleaning), security, administrative and maintenance functions. The two industrial cleaning classifications are as follows:

An Employee in this classification is one who has proven skills and performs those tasks customarily performed by cleaners utilising a range of materials and equipment to clean a range of surfaces in order to restore or maintain buildings including offices/ crib rooms/ workshops / tool stores / bathhouse / wash bays / load out plants in a clean and hygienic condition.

Indicative tasks and duties which an Employee at this level may perform, on a daily or periodic basis are:

a) Maintenance of hard and soft floors including steam cleaning of carpet, stripping and sealing of hard floors, sweeping, mopping and buffing using industrial machinery;

b) Cleaning of glass of both internal and external windows;

c) High pressure washing, rubbish collection and recycling;

e) all other cleaning tasks such as dusting, vacuuming, toilet and ablution cleaning

a) The use of heavy duty high pressure wash equipment

b) Industrial cleaning in relation to shut downs and maintenance on draglines and face shovels.

c) Cleaning duties in relation to coal washeries and maintenance workshops including operation of light equipment including forklifts, utilities and SUV vehicles, small front end loaders, bobcat and dingo. Use of mining equipment- Spotless commits that Spotless Employees will not operate mining equipment and heavy vehicles. Equipment and vehicles operated will be only those that are required for carrying out the duties of the classifications in the Agreement. (See Appendix D level 2 - Heavy equipment)

[8] The evidence before the Deputy President demonstrated that Spotless only engages heavy industrial cleaners at two of the mine sites covered by the Agreement, namely Callide and Dawson, and focused on the work of four employees at the Callide Mine. The following matters were not in dispute in this connection:

• the Spotless Group is a contract services provider, which provides services including cleaning services to a wide range of clients on a contract basis;

• Spotless is an employing entity in the Spotless Group;

• Spotless entered into a contract with Anglo American Metallurgical Coal Pty Ltd (AAMC) and associated entities in 2010 to provide facility management services, including industrial cleaning services, at a number of mine sites and associated accommodation villages including the Callide Mine;

• in 2016 Batchfire Resources Pty Ltd (Batchfire) acquired the Callide Mine, and Spotless continued to provide services on an uninterrupted basis;

• there are five industrial cleaning positions provided by Spotless, of which one position consists of a majority of light industrial cleaning covered by the Level 1 - Light Industrial classification in the Agreement;

• the other four positions are two field maintenance industrial cleaners and two workshop industrial cleaners;

• the field maintenance industrial cleaners perform heavy duty high pressure washing of digger and drilling machines in the pit, cleaning of coal handling and preparation plants, cleaning of draglines and ground maintenance and garden work, and this work is covered by the Level 2 - Heavy Industrial classification in the Agreement;

• the workshop industrial cleaners perform heavy duty high pressure washing of production equipment at the heavy vehicle wash pad, and also perform additional cleaning duties in and around the workshop, and this work is also covered by the Level 2 classification; and

• there is a roster by which Spotless personnel are assigned to these positions on various shifts.

[9] Clause 4.1 of the BCMI Award provides that it covers "... ". Clause 4.1(b) defines "" in the following way:

(i) employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of this award;

(ii) employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of this award; and

(iii) employees employed by a mines rescue service.

[10] Clause 4.2 defines "black coal mining industry" as follows

4.2 For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:

(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;

(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;

(c) the transportation of black coal on a coal mining lease; and

(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.

[11] Clause 4.3 excludes from the above definition a number of specified categories of work, none of which are referable to the work of the heavy industrial cleaners. Clause 4.8 provides:

4.8 Subject to clauses 4.1 and 4.2, where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[12] The CFMMEU contended that the heavy industrial cleaners at the Callide Mine were covered by the "Mineworker" classification in the BCMI Award. The definition of this classification in clause A.2.3 of Schedule A of the award is as follows:

A Mineworker is an employee who is assessed by the employer as competent to perform the required tasks in a variety of operating circumstances and under limited supervision. An employee continues in this classification until assessed for advancement to Mineworker - Advanced.

[13] The CFMMEU did not dispute the proposition that the work performed by the heavy industrial cleaners at the Callide Mine fell with the coverage of the Cleaning Award. Clauses 4.1, 4.2 and 4.8 of the Cleaning Award are relevant in this connection and provide:

4.1 This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D - Classifications to the exclusion of any other modern award.

4.2 The contract cleaning services industry means the business of providing cleaning services under a contract and includes:

(a) cleaning (including event cleaning, trolley collection and hygiene and pollution control but excluding trolley collection covered by the General Retail Industry Award 2010); and

(b) minor property maintenance which is incidental or peripheral to cleaning.

4.9 To avoid doubt this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another award has employees who perform functions referred to in clause 4.2 or in the classification descriptions referred to in Schedule D.

NOTE: Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[14] Spotless contended before the Deputy President and without contradiction from the CFMMEU that the heavy industrial cleaners fell within the scope of the classification "Cleaning Services Employee Level Two" (CSE 2) in the Cleaning Award. That classification is defined in clause D.2 of Schedule D of the award as follows:

D.2 A Cleaning Services Employee Level Two (CSE 2) is an employee who at the completion of training is capable of performing work within the scope of this level. Such an employee performs work above and beyond the skills of an employee at CSE 1 level and:

• works from complex instructions and procedures;
• assists in the provision of on-the-job training;
• works under general supervision either individually or in a team;
• is responsible for assuring the quality of their own work; and
• performs those tasks customarily performed by cleaners.

D.2.1 A CSE 2 may be required to perform any duties of a CSE 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks, for the greater part of each day or shift:

• routine repair work and/or building maintenance (of a non-trade nature) in or about the facility;
• ordering and distribution of toilet and other requisites and cleaning materials;
• customer or public relations duties as required;
• carrying out those roles expected of a leading hand (and is paid the allowance as stipulated in clause 17.5);
• carpet cleaning;
• cleaning windows on the exterior of multi-storied buildings from swing scaffolds, boatswain's chairs, hydraulic bucket trucks or similar devices;
• operating ride-on powered machinery;
• operating steam cleaning and pressure washing equipment;
• maintaining gardens, lawns and rockeries;
• trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading fertiliser, clearing shrubs and trimming hedges;
• vehicular rubbish collection and operating mobile compaction units; and
• specialist computer cleaning.

[15] After setting out the background to the matter, the Deputy President first addressed whether the Heavy Industrial Cleaners in question were covered by the BCMI Award. The Deputy President noted that the CFMMEU (relying on paragraph (ii) of the definition of "coal mining employees" in clause 4.1(b) of the BCMI Award) had contended that the employees in question were directly connected with the day to day operations of black coal mining and were employed in a classification in Schedule A of the award. The Deputy President described this as a "two-step test" which he would need to consider.[2]

[16] However the Deputy President then referred to a passage from the judgment of Dixon J in R v Central Reference Board; Ex parte Theiss (Repairs) Pty Ltd[3] in which his Honour distinguished between the repair and overhaul of earth-moving and excavating equipment used in open-cut coal mining being conducted "as an integral part of the operations of open cut-mining so as to form an indivisible element of the undertaking" or as part of a "separate and independent engineering operations outside the undertaking", and said "[t]he difference must depend on circumstances the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment. It must in the end come down to a matter of degree". The Deputy President then treated the considerations identified by Dixon J, together with the place where the work was performed,[4] as the criteria by which he would determine whether the heavy industrial cleaners were "coal mining employees" within paragraph (ii) of the clause 4.1(b) definition.[5] After referring to some of the evidence, the Deputy President found that while the criteria of place of work and possibly equipment favoured the CFMMEU's position, the criteria of point of control, organisation, interest, personnel and equipment favoured Spotless' position.[6] The Deputy President then concluded that, on the basis of these criteria, the heavy industrial cleaners were not, on balance, in the coal mining industry and were therefore not covered by the BCMI Award.

[19] The CFMMEU's appeal grounds and submissions contended that:

• paragraph (ii) of the definition of "coal mining employees" in clause 4.1 of the BCMI Award required the Deputy President to consider whether the duties of the heavy industrial cleaners were "directly connected with the day to day duties of a black coal mine", but he gave no consideration to this but rather erroneously focused on the industry of the employer which was relevant only to paragraph (i) of the definition;

• the evidence showed that the work of the heavy industrial cleaners was an essential part of the maintenance process for mining equipment, was undertaken day in, day out and thus was directly connected to production;

• on the plain and ordinary meaning of the words used in Schedule A of the BCMI Award, the classification of mineworker covered the heavy industrial cleaners;

• alternatively, the basis upon which the Deputy President determined that the BCMI Award did not cover the heavy industrial cleaners was based on a number of errors of fact, including as to the degree of control exercised by Batchfire, the degree of organisational separation between Spotless and Batchfire, the commonality of interest between the heavy industrial cleaners and Batchfire, the degree of personnel separation as between Batchfire and Spotless and the identity of the provider of the equipment; and

• further in the alternative, the Deputy President erred in his consideration as to which was the more appropriate award in that he failed to take into account the position of prospective award covered employees, made incorrect findings of fact as to the amount of heavy industrial work performed, wrongly characterised the primary purpose of the heavy industrial cleaners' work as cleaning work, and failed to take into account the status quo as to award coverage which existed prior to the commencement of the BCMI Award and which was expressly preserved in the note appearing after clause 4.2 of the BCMI Award.

[20] Spotless submitted that the CFMMEU's appeal would necessarily fail unless it could demonstrate error in the Deputy President's finding that the Cleaning Award was the most appropriate pursuant to the note to clause 4.9 of that award and clause 4.8 of the BCMI Award. The Cleaning Award, Spotless submitted, was clearly the most appropriate award because the Level 2 - Heavy Industrial classification under the Agreement incorporated the duties of the Level 1 - Light Industrial classification, which the CFMMEU accepted was solely covered by the Cleaning Award. Apart from the fact that the work of the heavy industrial cleaners was undertaken at a black coal mining site, which was a given if it was covered by the BCMI Award as well as the Cleaning Award, the CFMMEU had advanced no substantive response to this. The CFMMEU had made no submission at first instance concerning prospective award covered employees, there was no evident error in the Deputy President's characterisation of the purpose of the work, and the status quo as to coverage prior to the commencement of the BCMI Award was a consideration irrelevant to the issue of the most appropriate award coverage.

[22] We consider that permission to appeal should be refused because it is clear that the Cleaning Award and not the BCMI Award covers the work of the heavy industrial cleaners in question. The CFMMEU's appeal submissions, and the Deputy President's reasons, attempt to resolve the question of award coverage by reference to the coverage provisions of the BCMI Award. That is, with respect, the wrong starting point.

[23] As we have earlier stated, there was no dispute before the Deputy President, or before us, that the work of the heavy industrial cleaners fell within the coverage of the Cleaning Award. That agreed position was undoubtedly correct. Spotless is in the business of, among other things, providing cleaning services under contract to other businesses, and the duties of the Level 2 - Heavy Industrial classification under the Agreement as well as the actual duties of the heavy industrial cleaners at the Callide Mine involve employment within that aspect of Spotless' business. The work of the cleaners also falls within the plain words of the definition of the classification of CSE 2 in Schedule 2 of the Cleaning Award, which we have earlier set out. That means that the work of the employees in question comfortably fits within the coverage delineated by clause 4.2 of the Cleaning Award.

[24] Beyond that point, there is no need to consider whether the work in question falls within the coverage provisions in clause 4 of the BCMI Award, or whether pursuant to the note to clause 4.9 of the Cleaning Award or clause 4.8 of the BCMI Award the former or the latter award provides the most appropriate classification for the work. That is because clause 4.1 of the Cleaning Award provides that its coverage operates "to the exclusion of any other modern award". To the extent that there is any possibility of overlapping coverage by the Cleaning Award and the BCMI Award, these words resolve this in favour of sole coverage by the Cleaning Award. By contrast, the coverage provisions in clause 4 of the BCMI Award contain no provisions excluding the coverage of the Cleaning Award.

[25] The Cleaning Award is therefore the relevant modern award for the purpose of the application of the BOOT to the heavy industrial cleaners covered by the Agreement. The conclusion reached by the Deputy President was correct, albeit that it was reached for the wrong reasons. The CFMMEU's appeal grounds, although they raise a number of matters of substantial merit in their criticism of the Deputy President's reasoning, are ultimately incapable of altering the outcome even if upheld because they do not address the exclusionary words in clause 4.1 of the Cleaning Award. There is therefore no utility in giving them further consideration.

A Walkaden with S Brunker on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.

S Meehan of counsel with E Mayr on behalf of Spotless Facility Services Pty Ltd.

[1] [2019] FWC 5890

[3] [1948] HCA 9; (1948) 77 CLR 123 at 140-141

[4] See Australian Collieries Staff Association and Queensland Coal Owners Association No 20 of 1980, 22 February 1982 Print CR 2997 at [16]

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