Fair Work Act 2009

s.185 - Enterprise agreement

SPOTLESS CENTRAL QUEENSLAND COAL FACILITIES MANAGEMENT ENTERPRISE AGREEMENT 2018

Application for approval of the Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018 (the Agreement) by Spotless Facility Services Pty Ltd (Spotless or Applicant).

[2] The Agreement, if approved, will apply to employees of Spotless performing work at eight coal mines in Queensland or at the camps, houses and town services that support those coal mines.

[3] The Construction, Forestry, Mining, Maritime and Energy Union QLD - Mining and Energy Division (CFMMEU), the Australian Workers' Union Queensland Branch, United Voice and the Communication, Electrical and Plumbing Union Queensland Branch are the union parties to the Agreement. Save for the CFMMEU, the other union parties supported the approval of the Agreement and indicated so in their respective Form F18's filed with the Commission.

[4] Appendix D of the Agreement outlines the classification structure of the employees engaged to perform work under the Agreement, including; Service Attendant; Cook; Chef; Security Guard; Administration Officer; Tec Trades (i.e. Licensed/Registered Electrician, Refrigeration Mechanic and Plumber); Trades (i.e. all trades other than Tec Trades); Non-Trades (i.e. Trades Assistant); Level 1 - Light Industrial Cleaner; and Level 2 - Heavy Industrial Cleaner.

[5] On 11 April 2019 the CFMMEU provided an undertaking to the Fair Work Commission (FWC) and to Spotless in the following terms:

"The CFMMEU undertakes that the only issue it seeks to raise in the application for approval of the Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018 is whether the Black Coal Mining Industry Award 2010 is the appropriate reference instrument (for the purpose of the BOOT [Better Off Overall Test]) in relation to the Level 2 - Heavy Industrial Cleaners."[1]

[6] The CFMMEU thereafter submitted that the relevant modern award for Level 2 - Heavy Industrial Cleaners (Heavy Industrial Cleaners) under the Agreement is the Black Coal Mining Industry Award 2010 (BCMI Award) and that the BCMI Award covers the work of a Heavy Industrial Cleaner under the Agreement.[2]

[7] The CFMMEU submitted that if it is correct in the above proposition (at [6]) then Heavy Industrial Cleaners are not better off overall under the terms of the Agreement when compared to the BCMI Award.[3]

[8] The CFMMEU conceded, however, that even if it is correct in the proposition (at [6]), it would not necessarily be fatal to the approval of the Agreement, and that an undertaking may be able to resolve the issue.[4]

[9] Spotless submitted that the relevant modern award for a Heavy Industrial Cleaner is the Cleaning Industry Award 2010 (Cleaning Award) and disputed the CFMMEU's submission that the BCMI Award covers the work of a Heavy Industrial Cleaner.[5]

[10] In the alternative, Spotless submitted that even if the BCMI covers some of the work performed by a Heavy Industrial Cleaner, the Cleaning Award is the proper relevant Award for the purposes of the Better Off Overall Test (BOOT) as it is the classifications in the Cleaning Award which best match the major, principal or substantial purpose for which Heavy Industrial Cleaners have been employed.[6]

[11] The only question that remains in this application for approval is whether or not the BCMI Award or the Cleaning Award is the appropriate reference instrument (for the purpose of the BOOT) in relation to the Heavy Industrial Cleaners.

[12] Prior to the hearing, at a conference convened on 10 May 2019, I granted permission pursuant to the factors under s.596 of the Act for the Applicant in this proceeding to be represented by Ashurst. The CFMMEU was represented by Mr Walkaden, National Legal Officer for the CFMMEU.

[13] The matter was set down for hearing on 28 June 2019 in Brisbane before me to determine the relevant industry award for assessing the BOOT in relation to Heavy Industrial Cleaners. I reserved my determination following that hearing.

[14] Relevantly, with respect to coverage, clause 4 of the BCMI Award says:

(a) employers of coal mining employees as defined in clause 4.1(b); and

(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

[15] And relevantly, with respect to coverage, clause 4 of the Cleaning Award says:

4.1 This industry award covers employers throughout Australian 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: cleaning (including event cleaning, trolley collection and hygiene and pollution control but excluding trolley collection covered by the General Retail Industry Award 2010); and

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

4.7 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions of coverage in the award."

[16] Succinctly, the CFMMEU's argument was that Heavy Industrial Cleaner employees are covered under the BCMI Award by virtue and operation of clause 4.1(b)(ii) of the BCMI Award because they are coal mining employees.[7]

[17] The CFMMEU submitted that that clause 4.1(b)(ii) of the BCMI Award was more expansive than clause 4.1(b)(i) of the BCMI Award in determining who are coal mining employees and cited the decision of Deputy President Asbury in CQ Industries Pty Ltd t/a CQ Field Mining Services [2017] FWC 5667 where the Deputy President held (at [47] - [48])[8]:"

"[47] On the evidence before me I am satisfied that CQFMS employs or will employ during the term of the Agreement, employees who are covered by the Black Coal Award. I have reached this conclusion for the following reasons. The Black Coal Award has application to employers who employ persons in the black coal industry and does not exclude employers who employ persons in other industries even where the majority of employees may be in other industries. This is apparent from clause 4.1(a) and (b)(ii), which read together, make it clear that it is not necessary that an employer of an employee in the black coal mining industry is also in that industry, or substantially or principally within that industry.

[48] An employee may be in the black coal industry regardless of the industry of his or her employer, in circumstances where the employee meets the definition in clause 4.1(b)(ii) of the Black Coal Award. The coverage clause of the Black Coal Award recognises that an employer may be in more than one industry and by virtue of clause 4.8 of the Black Coal Award, where this is so, employees are covered by the award classification most appropriate to the work the employee performs ..."

[18] However, the CFMMEU has more work to do to prove that a Heavy Industrial Cleaner is necessarily a coal mining employee covered by the BCMI Award.

[19] According to the CFMMEU's own submissions, a coal mining employee must be employed in the coal mining industry, meaning that they need to "directly connected with the day to day operations of black coal mining and must be employed in a classification or class of work in Schedule A - Production and Engineering Employees or Schedule B - Staff Employees of this award (being the BCMI Award) ..."[9]

[20] This is therefore a two-step test which I will now consider.

[21] Both parties made reference to the decision in Australian Collieries Staff Association and Queensland Coal Owners Association (Staff Head Office Decision)[10] which the BCMI Award refers to in a note below clause 4.3 in that award as a relevant authority (and the Court decisions that the Staff Head Office Decision cites as relevant authorities) when considering black coal mining industry coverage matters.

[22] The CFMMEU is correct in its submission that the question of whether an employee is employed in the black coal mining industry is one of fact.[11]

[23] One factor is where the work is carried out. In this regard, the CFMMEU submitted that all of the work of Level 2 Industrial Cleaners is performed on a black coal mine and that while this is not a determinative factor, this is nevertheless a "decisive factor".[12]

[24] This submission was consistent with what the Tribunal expressed in the Staff Head Office Decision wherein, citing another decision in the Tribunal, Westcliff, and his Honour Dixon J's reasoning in the High Court decision of R v Central Reference Board; Ex parte Theiss (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 it was said that:

'... the fact that the activity is being carried on at the project which falls within the definition of a coal mine under the Coal Mines Regulation Act is not the sole determinant of the issue, although it is one of the many facts that have to be taken into account. In this connection Dixon J. as he then was said at p. 141 of the Thiess (Repairs) 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".'[13]

[25] Therefore, in summary, the consideration of whether an employee is a coal mining employee can be summarised by:

• where the work is carried out (place);

• the separateness of establishments in;

  • point of control (as between the mine operator and the contractor);

  • who organises the employees (as between the mine operator or the contractor);

  • the interest in mining operations (as between the mine operator and the contractor);

  • who provides the personnel (as between the mine operator and the contractor); and

  • who owns and provides the equipment (as between the mine operator and the contractor).

[26] The CFMMEU submitted that Heavy Industrial Cleaners are coal mining employees.[14]

[27] To support this submission, the CFMMEU relied on the evidence of Mr Russell Tanzer (Mr Tanzer), Heavy Industrial Cleaner, and Mr Shane Brunker (Mr Brunker), CFMMEU Official. Mr Tanzer prepared two witness statements in these proceedings; one dated 28 May 2019 (First Tanzer Statement) and the other dated 24 June 2019 (Second Tanzer Statement). Mr Brunker prepared one witness statement dated 29 May 2019.

[28] Mr Tanzer presented as a generally credible witness and mostly answered questions put to him directly under cross-examination.

[29] Mr Tanzer presented evidence of internal communications as annexures to the Second Tanzer Statement[15] drafted by mine operator (Batchfire) supervisory employees which indicated that Heavy Industrial Cleaners were given at least some direction with respect to work that ought to be performed by them.[16] Mr Tanzer also provided evidence that at least some direction was given by the workshop manager as to what work should be performed by the Heavy Industrial Cleaners.[17]

[30] Mr Tanzer also gave evidence that while work was being performed, supervisory employees from Batchfire would provide direction, answer questions or clarify issues about the work.[18] Further, Mr Tanzer said that issues or complaints about work performed were raised directly with Heavy Industrial Cleaners by supervisory employees of Batchfire.[19]

[31] Mr Tanzer also presented evidence in the Second Tanzer Statement that a number of equipment items, including; personal protective equipment (PPE), swipe cards, the heavy duty wash equipment, vehicle chocks, signage, engine degreaser, oil pumps, absorbent pads, rags, industrial sweepers, forklifts, scrapers, elevated work platforms and shovels, were provided by the mine operator.[20]

[32] At the hearing, a concession was made by the Applicant's witness under cross-examination, Mr Alan Barnes (Mr Barnes), Contract Manager for Spotless, on a number of occasions that where his (that is, Mr Barnes') evidence contradicts that of Mr Tanzer's, Mr Tanzer's evidence is to be preferred due to his experience.[21]

[33] In response the Applicant submitted Heavy Industrial Cleaners are not coal mining employees.[22]

[34] To support this submission the Applicant relied on the evidence of Mr Barnes, Contract Manager for Spotless.[23]

[35] Mr Barnes provided evidence about the Applicant as a corporate entity, the history of the work Spotless has performed for the mine operator, the cleaning services provided in accordance with the contract and an overview of the work performed under the contract among other matters.

[36] Relevantly, Mr Barnes provided evidence with respect to Spotless engaging the services of a labour hire company, Propest, when sufficient Spotless employees are not available to perform the facilities services in accordance with its contract obligations.[24]

[37] Mr Barnes also provided evidence about the equipment that is provided to Spotless [cleaning] employees.[25]

[38] Under cross-examination, the Applicant was successfully able to bring forward a number of concessions from Mr Tanzer which I now confirm as findings of fact that:

• at the beginning of each shift (generally commencing at 4:00am) Spotless [cleaning] employees congregate at the Spotless office;[26]

• a whiteboard located the Spotless office allocates the [cleaning] work that is to be performed at that shift and likely some subsequent shifts;[27]

• Ms Reynolds, the Spotless supervisor at the Callide Mine, while not present at these 4:00am meetings, fills out the work that is to be performed by each [cleaning] employee of Spotless on that whiteboard;[28]

• there are no Batchfire supervisors, managers or employees at the meeting where Spotless [cleaning] employees congregate before their shift;[29]

• the shift times as between the production and engineering workforce of the mine operator are different to that of the Spotless [cleaning] employees;[30]

• planned and unplanned leave and coverage for such leave is dealt with by Ms Reynolds, the Spotless supervisor;[31]

• in the case of unplanned leave, Ms Reynolds communicates changes to the work roster to the Spotless employees via the whiteboard or by another means of communication;[32]

• where cleaning tasks arise on an ad hoc basis under the direction of a Batchfire's workshop supervisor these tasks are performed consistent with the requirements of Spotless;[33]

• disciplinary processes, as they arise for the Spotless [cleaning] employees, are undertaken by Spotless;[34] and

• the communication that was sent out by Batchfire to Spotless [cleaning] employees regarding the Bird Control and Cleaning Update was a matter that was already communicated to Spotless management by Batchfire and had been already - by inference - communicated to the Spotless [cleaning] employees by Spotless.[35]

[39] Clearly, this is a factor which weighs in the CFMMEU's favour. All work performed by the Heavy Industrial Cleaners is undertaken at a coal mining site.

[40] The CFMMEU has the better argument on this point.

[41] On balance, I have found that this criterion weighs in the Applicant's favour in establishing separateness in the point of control as between the mine operator and the contractor, Spotless. While the evidence presented does indicate some degree of control on the part of the mine operator, that control is exercised in either an ad hoc way (as part of the overall direction from Spotless to perform ad hoc tasks from time-to-time on general requests from Batchfire supervisory employees)[36], or alternatively as general focus points for the cleaning (c.f. the Bird Control and Cleaning Update and the Crib Hunt Cleaning Standards communications).[37]

[42] These communications from Batchfire were not put as a direct instruction to an individual employee from Spotless to perform their job in a certain way. At their highest, they were communications to all cleaning employees from Spotless to, in the case of the Bird Control and Cleaning Update, focus their attention between certain hours on areas soiled by the 'welcome swallows', for an indefinite period of time. The allocation of who is to perform this work falls on Spotless and no instructions are provided as to how to explicitly conduct this work, just that it needs to be done. The only control aspect is the prescribed set of hours in the Batchfire communication that this work needs to, or ought to, be done. This weighs slightly in the CFMMEU's favour.

[43] In any event, however, regarding the Bird Control and Cleaning Update, this was a matter that the Spotless [cleaning] employees were already made aware of from Spotless management - it would appear on the evidence - prior to this communication being issued by supervisory employees of Batchfire.

[44] In the case of the Crib Hunt Cleaning Standards communication, this direction is even broader. It merely says "that the 'Crib Hut' Cleaning Standard has dropped of late" and asks for "a concerted effort to improve the area in concern". This communication, it could be said, specifically references items to focus on in the Crib Hut for Spotless [cleaning] employees to improve their cleaning performance on, but this only reflects a broad direction at best. Again, no specific employees of Spotless were identified (as culprits of the standard drop); no time frame was set for improvement; and no standard was set to be achieved.

[45] I therefore find that on the issue of the separateness in the point of control, this weighs in the Applicant's favour.

[46] With regard to this criterion, based on the evidence before me, I find that this again supports the Applicant's positon. By virtue of the contractor relationship between Spotless and Batchfire, it is Spotless alone which organises its work rosters and the work allocation of its employees.

[47] Further, the meeting which occurs between all the Spotless cleaning employees before work - whether labelled a "pre-start" meeting or not - outlines the tasks that each Spotless employee will be performing each day.[38] No mine operator employees are present at this meeting[39] and no evidence was presented that Batchfire has any say in the work allocated at this time, save for broadly the Bird Control and Cleaning Update as a specific focus for the Spotless (cleaning) employees at this particular point in time.

[48] Spotless organises cover if its employees are on planned or unplanned leave[40] and even subcontracts to a labour hire company, Propest,[41] if it has insufficient employees to perform its obligations under the contract. Spotless is solely responsible for communicating any changes to the work roster to its cleaning employees should the need arise.

[49] Further, Spotless conducts disciplinary processes with its employees should this be required from time-to-time.[42] Batchfire, on the evidence submitted, has no role in this process, other than a broad direction to request a better effort (c.f. the Crib Hut Cleaning Standard communication).

[50] Organisationally, I have found on the evidence that Spotless and Batchfire are sufficiently distinct entities and this supports the Applicant's overall submission.

[51] This criterion similarly weighs in the Applicant's favour.

[52] The Applicant's submission in this regard is that "Spotless is concerned with the performance of the facility services in accordance with the Commercial Contract. Spotless and Heavy Industrial Cleaners are not concerned with the operation of the [coal] Mines (and for example, how many tonnes of coal are mined) or the operation of the mining equipment which is cleaned. In contrast, the Callide Manager and the Dawson Manager are concerned with the operation of open cut coal mines which (sic) a view to mining, processing and ultimately selling black coal."[43]

[53] No evidence was adduced contrary to this submission from the CFMMEU. In fact, it may not have been possible to adduce any evidence contrary to this submission, save for a brief submission that "there is a degree of integration between the Heavy Industrial Cleaners and the rest of the production and engineering workforce.[44]

[54] I therefore find in the Applicant's favour on this point.

[55] Again, this factor, on balance, supports the Applicant's argument.

[56] While the CFMMEU contends that "there is a degree of integration between the Heavy Industrial Cleaners and the rest of the production and engineering workforce",[45] ultimately I accept Spotless' submission on this point.

[57] Ultimately, Heavy Industrial Cleaners are contract requirement employees who are engaged to perform the services in accordance with the commercial contract between Spotless and Batchfire.[46]

[58] On this point, there is a factual dispute between the parties.

[59] 'Mr Barnes, in his evidence, says that (at paragraph [51] of his Statement):

"[51] In providing services to the Callide Mine and Dawson Mine Spotless supplies:

"b. all ordinary cleaning consumables (e.g. clothes, mops, buckets, chemicals etc.) and equipment used by Spotless (other than the high pressure gurneys provided by Batchfire which are used in the field and in the workshop and the small bob cat or dingo digger machine used to remove mud from the workshop floor) or its subcontractor that are necessary for the performance of the facility services.

[52] All equipment and tools provided by Spotless for the performance of the facility services are the same as those which it provides to employees performing cleaning duties at other cleaning sites (including shopping centres, airports, schools etc).

[60] The Agreement at clause 48 makes an allowance for boots that are required to be worn by [Spotless employees] as part of Personal Protective Equipment (PPE). The Agreement also at clause 49 makes an allowance for prescription safety glasses that are required to be worn [by Spotless employees] as part of PPE. The Agreement at clause 50 says that [Spotless] shall supply there sets of uniforms to all full time Employees and replace [these uniforms] when they are deteriorated by wear and tear.

[61] In contrast, Mr Tanzer says that he disagrees with Mr Barnes that all ordinary cleaning consumables and equipment (other than the high pressure gurneys used in Field and the Workshop & the small bob cat and dingo digger used in the Workshop) are provided by Spotless.[47] In addition to the high pressure gurneys used in the Field & Workshop, and the small bob cat and dingo digger, Mr Tanzer asserts that Batchfire provides the following consumables, equipment and items that are used by the Industrial Cleaners in carrying out their work (at paragraph [9] of the Second Tanzer Statement):

1. All Personal Protective Equipment (gloves, safety glasses, disposable overalls, safety helmet and rubber boots)'

2. Swipe cards for entering and exiting the site;

3. The heavy duty high pressure wash equipment at the Heavy Vehicle Wash Pad (water cannons, high pressure hoses etc.);

4. Vehicle chocks;

5. Signage (e.g. Danger Signs) & Witches Hats;

6. Engine degreaser;

7. Oil pump (sic);

8. Absorbent pads;

9. Rags;

10. Industrial sweeper (sic) (which is an engine power machine;

11. Forklifts;

12. Scrapers;

13. Elevated work platforms; and

14. Shovels.

[62] In cross-examination, it was put to Mr Tanzer that the PPE was provided to Heavy Duty Cleaners by Spotless in the following exchange:

" ... Now, after that can I put to you that industrial cleaners will then go to their own individual lockers, behind the storage shed near the office, to get their own PPE?---That's correct.

- - - on a regular basis? And that PPE is provided to you by Spotless, isn't it?---No.

Can I ask you what PPE you say you get from that locker?---My hard hat, my safety glasses, earplugs and gloves.

Can I put to you that the material which you've just referred to is provided by Spotless, while Batchfire provide the heavy duty gloves which you use, as required, when using the high pressure gurney?---The equipment I've told you is Batchfire's and Batchfire's alone.

Upon what basis do you say that?---Because I get those items from my work area in the workshop and the stores."[48]

[63] Mr Tanzer's denial that the equipment is provided for by Spotless is emphatic ".:. The equipment I've told you is Batchfire's and Batchfire's alone."[49] However, the basis upon which Mr Tanzer says this is not helpful. Just because the items are obtained from the "work area in the workshop and the stores"[50] does not necessarily mean that they are supplied by the mine operator.

[64] The fact that the Agreement also makes provision for allowances for the purchases of some PPE equipment, such as boots and prescription safety glasses, is evidence which supports the Applicant's position.[51] The Agreement also provides that, at least for full time Spotless employees, uniforms will be supplied.[52] Further, Mr Tanzer did not directly contradict that ordinary cleaning consumables, such as mops, buckets, chemicals etc., are not provided by Spotless. As Mr Barnes' evidence on this point is not challenged, it is to be taken as fact that these items are supplied by Spotless.

[65] However, in the CFMMEU's favour, it is clear that there are a number of items of equipment which are provided by the mine operator so that the Heavy Industrial Cleaners can perform their role.

[66] Therefore, I have found this on balance to be overall and on balance a neutral and, if not, slightly, a consideration favouring the CFMMEU's argument.

[67] In summary, I have found that with reference to the criteria in Staff Head Office Decision, Heavy Industrial Cleaners are, on balance, not in the coal mining industry. While the CFMMEU has an argument with respect to the fact that the Heavy Industrial Cleaners solely work on coal mines and use a number of equipment items provided by the mine operator, it falls short in establishing its case in the other criteria I am required to consider.

[68] I accept the submissions of Spotless with regard to separateness in; point of control, organisation, interest and personnel which the Staff Head Office Decision outlines are the criteria to consider in coal mining industry coverage matters. Because of this I have found that Heavy Industrial Cleaners are not coal mining employees and therefore cannot be covered by the BCMI Award. A finding to this effect points to the appropriate award with respect to Heavy Industrial Cleaners being the Cleaning Award.

[69] If I am wrong on the above consideration, it is necessary that I explore the classifications under the BCMI Award for completeness. This is the second element for consideration as to whether a Heavy Industrial Cleaner is employed under a classification under the BCMI Award.

[70] On this point the CFMMEU say that:

"The Heavy Industrial Cleaners fall within the classification of a Mineworker. The Mineworker classification is described at item A.2.3 of Schedule A of the BCMI Award in these terms:

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.

As is explained at item A.1.3 of Schedule A of the BCMI Award, the definition for each classification level is general. Likewise, the competencies listed at item A.5 of Schedule A of the BCMI Award are indicative only. An employee could have none of the competencies identified in item A.5 of Schedule A and still be a Mineworker within the meaning of the BCMI Award.

Schedule B of the BCMI Award (which deals with staff employees) adopts a more stringent approach. That is, many of the positions that fall within Schedule B are defined (at item B.1) by reference to a more objective criteria - qualifications held, nature of work performed etc.

If the first element is made out, it cannot be seriously suggested that the Heavy Industrial Cleaner is not a Mineworker. Clearly, the Heavy Industrial Cleaners have been assessed as competent to perform the required tasks in a variety of operating circumstances under limited supervision.

For those reasons, it should be held that the Heavy Industrial Cleaners are employed in a classification covered by the BCMI Award."[53]

[71] With the greatest respect to the CFMMEU, this submission does not casually suggest at all that Heavy Industrial Cleaners are covered by the BCMI Award. By analogy the CFMMEU could argue that a cook who worked offsite making meals for mining production employees who could perform their tasks in a variety of ways and under limited supervision would also be employed in a classification covered by the BCMI Award. This is not necessarily so. This submission, in my view, therefore has little persuasive value by itself.

[72] The CFMMEU then submitted that the BCMI Award was intended to reflect the status quo [with respect to coverage] and that the starting point in considering the status quo is the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (the Interim Consent Award).[54]

[73] The CFMMEU goes on in its submissions to say that at Schedule E of the Interim Consent Award, the classification structure shifted from one being based on a narrow definition of tasks to a skills-based model. The CFMMEU then asserted that cleaning work was identified as a "General Skill" (at page 66) in the Interim Consent Award in the terms set out as follows:

"The Joint Working Party (JWP) acknowledges that a range of tasks exist in the Open Cut Coal Mining Industry that have not been specifically identified in the menus. It is the view of the JWP that such tasks, while being necessary for the continued operation of the mine, are not tasks that require any substantial agree of training and as such should not be specifically identified as a skill.

These tasks so described include, but are not limited to, Bathroom/Crib Room/ Toilet cleaning, general clean up of work areas, such as washeries, workshops, vehicles etc; gardening."[55]

[74] The CFMMEU then submitted that an employee performing such work would (in the absence of any other skills and who had been inducted) be classified as a Level 1 Production Worker (referencing the Open Cut Coal Model Matrix on page 60 of the Interim Consent Award) because such an employee would have 1 skill from Menu B, namely the "General Skill".[56]

[75] The CFMMEU concluded by submitting that the Interim Consent Award was consolidated into the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (the P&E Award) and the P&E Award did not redefine the coverage of that award so as to exclude from coverage the work performed by Heavy Industrial Cleaners. The P&E Award it was then submitted by the union was the pre-reform award with respect to Production and Engineering employees engaged in the Black Coal Mining Industry immediately prior to the commencement of the BCMI Award.[57]

[76] In summary the position of the CFMMEU is that if I am with them on how they have interpreted the coverage of cleaning employees under the Interim Consent Award then this same coverage is maintained to the present day under the BCMI Award by virtue of the BCMI Award stating that its goal in coverage was to reflect the status quo.

[77] In response to the CFMMEU's submissions, Spotless submitted that the CFMMEU's interpretation of the Open Cut Coal Model Matrix found on page 60 of the Interim Consent Award is incorrect.[58]

[78] This is because, Spotless submitted, in order to classify as a Level 1 employee in the Production Stream of the Open Cut Coal Model Matrix, an employee would need 2 skills from Menu A and 1 skill from Menu B.[59]

(Emphasis retained from the Applicant's submission)

[79] Spotless then submitted that the CFMMEU's interpretation cannot be correct by virtue of the text of the Interim Consent Award itself where, at page 67, it says:

"The skills required at any level in the model are prerequisites for entry to that level (eg to enter level one in the production stream an employee must be accredited in two skills from Menu A (Production) and one skill from Menu B).[60]

[80] Spotless concluded its submission by saying that if the Open Cut Coal Model Matrix intended to be read in the way the CFMMEU have interpreted it, then it could have been written with the use of the word "or" instead of "and".[61]

[81] Having had the benefit of reading the parties' respective submissions on this point, the transcript and the Interim Consent Award, I am of the view that that Spotless' interpretation of the coverage of Level 1 Production Workers, as outlined in the Open Cut Coal Model Matrix, is to be preferred.

[82] It is clear from the plain reading of the words in the Interim Consent Award that as a prerequisite to be a Level 1 Production Employee, per the Open Cut Coal Model Matrix, two skills from Menu A (Production) are required and one skill from Menu B is also required. While I can be satisfied that a Menu B skill is obtained per the submission of the CFMMEU on this point, I cannot conclude on the evidence or the submissions before me that Heavy Industrial Cleaners possess two skills from Menu A (Production).

[83] Therefore I find in any event that a classification under the BCMI Award does not cover Heavy Industrial Cleaners.

[84] If I am wrong in my finding that Heavy Industrial Cleaners are not employees in the coal industry and could be covered by a classification in the BCMI Award, it is necessary that I give consideration to what would be the "relevant" Award if both the BCMI Award and the Cleaning Award covered Heavy Industrial Cleaners.

[85] In this regard, the Applicant submitted that the Cleaning Award remains the appropriate 'relevant award' in the circumstances.[62]

[86] The Applicant then submitted that in order to determine which modern award covers an employee where they may be covered by more than one award or to determine whether an employee with mixed duties is covered by a modern award, it is necessary to look at the classifications in each of the modern awards and make a practical assessment of which classifications best match the major, principal or substantial purpose for which the employee is employed.[63]

[87] The Applicant then provided the Commission with some Full Bench authorities; namely, Australian Meat Industry Employees Union, The v Teys Australia Beenleigh Pty Ltd [2014] FWCFB 5643 (per Action SDP, Richards SDP and Simpson C) (Teys) citing with approval the earlier authority of Brand v APIR Systems Limited (unreported, AIRC, PR938031 per Giudice J, Marsh SDP, Thatcher C, 16 September 2003) to assist the Commission in understanding how to make this practical assessment.

[88] The decision Teys[64] summarises the weight of industrial jurisprudence on this point (at paras [84] - [85]:

"[84] In Brand v APIR Systems Limited, a Full Bench of the Australian Industrial Relations Commission pointed out the following:

[12] Much of the argument advanced on Mr Brand's behalf in the appeal was directed at whether his employment was within the incidence of the award. As we have indicated above, even if his employment was within the incidence of the award, his application was not within jurisdiction unless he was employed in one of the award classifications.

[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect. (PR925731 at para [9]). An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee (Ware and O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18). Another formulation requires that the principal purpose or purposes of the employment be identified (Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd [1973] CthArbRp 585; (1973) 150 CAR 99 at 101-2). In some cases the formulations have both been referred to (Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 at 462; Logan v Otis Elevator Co Pty Ltd, Unreported, Industrial Relations Court of Australia (Moore J) 20 June 1997). In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation (Re The Australian Workers' Union Construction, Maintenance and Services (WA Government) Award 1987 1991/12 CAR 68 at 72). A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were 'engaged substantially' in the duties of the relevant occupation (Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and another (1988) 29 IR 263 at 275).

[14] In this appeal both parties accepted that the 'principal purpose' formulation as stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are content to decide this application on that basis. We should add, however, that we are satisfied that whichever of the formulations referred to might be applied, in this case the result would be the same."

[85] In Brand and each of the cases cited in this extract from Brand, whether it is a "principal purpose", "major and substantial" or "engaged substantially" formulation that is adopted, it is the work of the employee that is considered relevant in that regard."

[89] The Applicant then made reference to paragraph 9 in the Carpenter v Corona Manufacturing Pty Ltd[65] Full Bench decision in its submissions. That decision said (at para [9]):

"[9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award."

[90] Spotless concluded its submission by stating that the principal purpose test is a two-step process. The first step is to consider the time spent by Heavy Industrial Cleaners carrying out their various duties; the next step is to consider the circumstances in which Heavy Industrial Cleaners are employed to ascertain the principal purpose for which they are employed.[66]

[91] The CFMMEU relied heavily in its submissions and in its evidence that Heavy Industrial Cleaners performed more Level 2 - Heavy Industrial Cleaner work than Level 1 - Light Industrial Cleaner work and that this is the basis for the BCMI Award being the "relevant" Award.

[92] In this regard, the CFMMEU's evidence and submissions maintained that Level 2 - Heavy Industrial Cleaning duties more relevantly fit into the classifications under the BCMI Award. In short, the CFMMEU submitted that if it could prove that the Heavy Industrial Cleaners had been or were undertaking more Level 2 - Heavy Industrial Cleaning work than Level 1 - Light Industrial Cleaner work, by inference this would have then supported the Union's position that the relevant Award for the purposes of assessing the BOOT is the BCMI Award.

[93] To this effect, the CFMMEU was convincing in cross-examination in obtaining concessions from the Applicant's witness, Mr Barnes, that figures that he quoted in his witness statement as Level 1 - Light Industrial Cleaner work were "inflated" vis-a-vis Level 2 - Heavy Industrial Cleaner work.

[94] On the evidence, I find that the CFMMEU's submissions regarding the amount of work performed by the Heavy Industrial Cleaners, on balance, may at least on occasion, be more Level 2 - Heavy Industrial Cleaning work than Level 1 - Light Industrial work.

[95] A finding to this effect, however, does not necessarily prescribe that the Heavy Industrial Cleaners are more relevantly covered by the BCMI Award. This is because:

• the nature of the work and the circumstances in which the employee is employed to do the work is yet to be considered; and, in any event,

  • doing more Level 2 - Heavy Industrial Cleaning work than Level 1 - Light Industrial Cleaning work does not necessarily or causally mean that a Heavy Industrial Cleaner's more relevant award is the BCMI Award because the BCMI Award at Schedule A only suggests indicative competencies for duties performed under the BCMI Award and they do not expressly match those contained within the duties of Heavy Industrial Cleaners in the Agreement (only implicitly); and

  • work performed by the Heavy Industrial Cleaners, such as operations of all relevant machinery and the cleaning of aprons, trenches, drains and grates, does not necessarily fall within the indicative competencies under the BCMI Award at Schedule A.

[96] These matters will be duly considered.

[97] "More is required than a mere quantitative assessment of the time spent in carrying out various duties to determine whether a particular award applies to an employee. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed."[67]

[98] To this effect, Spotless submitted that the "principle (sic) purpose" for which Heavy Industrial Cleaners are employed by Spotless is to perform cleaning duties in accordance with the Commercial Contract.[68]

[99] While not conceding that some work performed by Heavy Industrial Cleaners could be performed by a person employed under the classification of "Mineworker", Spotless argued that they are not "substantially engaged" in that work.[69]

[100] Spotless then argued that "[the Heavy Industrial Cleaners] are employed principally as cleaners to perform cleaning work" ... and "notwithstanding that [their] cleaning duties are performed at the Mines, there is nothing in the nature or substance of the work performed by the Heavy Industrial Cleaners that supports the conclusion that they are covered by the BCMI Award.[70]

[101] This proposition is not necessarily correct in my view.

[102] Taking the plain meaning of the indicative competencies in the BCMI Award at Schedule A at A.5.1 which indicates that someone involved in "equipment servicing and maintenance" and "washplant servicing and maintenance"[71] would, or at least should, in my view include some of the work performed by the Heavy Industrial Cleaners. This interpretation is consistent with the plain language contained in the Agreement which describes the duties of Level 2 - Heavy Industrial Cleaners as "industrial cleaning in relation to coal washeries and maintenance on draglines and face shovels" and "cleaning duties in relation to coal washeries and maintenance workshops".[72]

[103] While Heavy Industrial Cleaners have some aspects of their role which might be covered by the indicative tasks set out in the BCMI Award, the primary purpose of the work that is performed by Heavy Industrial Cleaners, according to the Applicant, is cleaning work. They are employed as cleaners to perform cleaning duties from time to time in accordance with a Commercial Contract.

[104] The wording in the Cleaning Award has a wide scope as we already know:

4.1 This industry award covers employers throughout Australian 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."

[105] Schedule D - Classifications indicates duties which are performed by Heavy Industrial Cleaners which are consistent with those provided for in the Agreement, such as [at D.2.1]:

• "operating ride-on powered machinery; and

• operating steam cleaning and pressure washing equipment."

[106] As the Applicant quite rightly notes in its submissions, the duties of a Heavy Industrial Cleaner are "in addition to" the duties of a Level 1 - Light Industrial Cleaner. And there is no dispute on the facts that a Level 1 - Light Industrial Cleaner's role is solely covered by the Cleaning Award.

[107] On this point, the Applicant cited the decision of Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623 where Deputy President Gostencnik found that even though an employee may perform work which is outside their specific Award classification they would still be covered by that classification where the principal purpose of their employment is to perform work covered by that classification:

"[45] I agree with the Applicant's submission that put simply, the principal purpose of the Applicant's position was to sell real estate. Some of the transactions involved were of higher value and greater complexity than those involved in, say a suburban residential real estate agency, but the true nature of the work being performed is much the same. The Applicant had little role in the strategy and management of the Respondent. He had no direct reports. His title, of Regional Director, was effectively a rank or accolade accorded by the Respondent, but the question of award coverage is not determined by the person's title - it is the duties performed that will be of significance.

[46] It seems to me that the principal purpose of the role occupied by the Applicant at the time of his dismissal as disclosed by the evidence discussed above falls squarely within the role definition of a Property Sales Representative and the duties that he undertook to execute the primary purpose fall comfortably within the indicative tasks for a Property Sales Representative set out in the Award. Some aspects of the Applicant's role might also be covered by the Property Sales Supervisor role definition in paragraphs B.1.3(a)(i), (ii) and (iv). Although, as he had no direct reports, his position cannot fall within that classification."[73]

[108] By analogy, I have found the same to be the case in this matter.

[109] While on occasion, Heavy Industrial Cleaners may undertake work that might be covered by the BCMI Award, the primary purpose of their role is cleaning work. This is because they all undertake Level 1 - Light Industrial work and undertake Level 2 - Heavy Industrial work in addition to that work. Not all Level 2 - Heavy Industrial work is necessarily covered by the indicative competencies under the BCMI Award, and even duties those which may be, are expressed generally and not expressed expressly.

[110] On balance, therefore, I cannot conclusively say on the evidence before me that for the majority of time during throughout the lifetime of the Agreement, a Heavy Industrial Cleaner is performing work consistently which aligns with the implicit indicative tasks in the BCMI Award. And even if I could or even if I did, it will not necessarily prescribe that a Heavy Industrial Cleaner will be covered by the BCMI Award anyway, given the decision of the Full Bench in Carpenter v Corona Manufacturing Pty Ltd[74] which confirms that the Commission needs to look at more than a mere quantitative assessment of the time spent in carrying out various duties.

[111] While on some occasions, it may be the case that a Heavy Industrial Cleaner performs more Level 2 - Heavy Industrial Cleaning work than Level 1 - Light Industrial Cleaning work and the duties undertaken under Level 2 - Heavy Industrial Cleaning might align with a classification under the BCMI Award, this for me is too remote a conclusion to say that Heavy Industrial Cleaner are necessarily better covered by the BCMI Award. This is particularly the case where the duties in Schedule D of the Agreement expressly say that "Spotless Employees will not operate mining equipment and heavy vehicles."[75] This is inconsistent with a large portion of the indicative duties contained in Schedule A of the BCMI Award, a large proportion of which concern the operation of mining equipment and heavy vehicles.[76] The Applicant submitted "the Heavy Industrial Cleaners do not operate heavy industrial or mining machinery and are not tradespeople."[77] I agree with this submission.

[112] I have therefore determined, on balance, that the more relevant award or more appropriate reference instrument for the purposes of assessing the BOOT for Heavy Industrial Cleaners is the Cleaning Award.

[113] In summary, I have found that, on balance, Heavy Industrial Cleaners are not employed in the coal mining industry and therefore cannot be covered by the BCMI Award.

[114] If I am wrong on the above point (at para [113]), I have also found that, on balance, a classification under the BCMI Award does not cover Heavy Industrial Cleaners.

[115] And, if I am wrong on both of the above points (at paras [113 - 114]) and the BCMI Award does cover Heavy Industrial Cleaners, I have found that, on balance, the Cleaning Award is appropriate reference instrument for the purposes assessing the BOOT for Heavy Industrial Cleaners.

[116] Given the CFMMEU's undertaking to only press the issue of which industrial award should cover Heavy Industrial Cleaners in relation to whether or not the Agreement could be approved (see para [5]) and given that I have decided that it is the Cleaning Award, I am now satisfied that each of the requirements under ss.186, 187, 188 of the Act as are relevant to this application for approval have now been met.

[117] The Agreement is approved in accordance with s.54 of the Act and will operate from 30 August 2019. The nominal expiry date of the Agreement is 22 June 2022.

[118] The Agreement will cover the following union parties; the CFMMEU, the Australian Workers' Union Queensland Branch, United Voice and the Communication, Electrical and Plumbing Union Queensland Branch.

Mr Ian Humphreys for the Applicant of the law firm, Ashurst.

Mr Jack Harding for the Australia Workers' Union (submissions not pressed).

[1] Email from the CFMMEU filed in the Commission on 11 April 2019.

[2] Outline of Submissions on behalf of the CFMMEU at [9].

[5] Outline of Submissions on behalf of the Applicant at [4]; [40 - 62].

[7] Outline of Submissions on behalf of the CFMMEU at [15 - 24].

[10] No 20 of 1980, 22 February 1982 Print CR 2997.

[11] Outline of Submissions on behalf of the CFMMEU at [33].

[13] Australian Collieries Staff Association and Queensland Coal Owners Association No 20 of 1980, 22 February 1982 Print CR 2997 at [16], citing R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123, 141.

[14] Outline of Submissions on behalf of the CFMMEU at [23].

[15] Second Tanzer Statement dated 24 June 2019, Annexure RT-3 and Annexure RT-4.

[17] First Tanzer Statement dated 28 May 2019 at [40].

[18] Second Tanzer Statement dated 24 June 2019 at [15]

[21] Transcript at for example: PN589; PN592; PN593;PN608; PN616; PN668 and PN670.

[22] Outline of Submissions on behalf of the Applicant at [47 - 56].

[23] Witness Statement of Mr Barnes dated 17 June 2019.

[37] Second Tanzer Statement dated 24 June 2019, Annexure RT-3 and Annexure RT-4.

[41] Witness Statement of Mr Barnes dated 17 June 2019 at [82].

[43] Outline of Submissions on behalf of the Applicant at [54(c)].

[44] Outline of Submissions on behalf of the CFMMEU at [42(b)].

[46] Outline of Submissions on behalf of the Applicant at [54(d)].

[47] Second Tanzer Statement dated 24 June 2019 at [9].

[51] Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018 at [48 - 49].

[53] Outline of Submissions on behalf of the CFMMEU at [45 - 49].

[58] Outline of Submissions on behalf of the Applicant at [87 - 88] and Applicant's 'Aide Memoire' Overview of the Work Model in the Interim Consent Award at [5 - 8].

[59] Applicant's 'Aide Memoire' Overview of the Work Model in the Interim Consent Award at [6].

[62] Outline of Submissions on behalf of the Applicant at [63].

[64] Australian Meat Industry Employees Union, The v Teys Australia Beenleigh Pty Ltd [2014] FWCFB 5643 at [84 - 85].

[65] PR925731, 17 December 2002.

[66] Outline of Submissions on behalf of the Applicant at [68].

[67] PR925731, 17 December 2002 at [9].

[68] Outline of Submissions on behalf of the Applicant at [71].

[72] Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018 at [Appendix D].

[73] Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623 at [45 - 46].

[74] PR925731, 17 December 2002 at [9].

[75] Spotless Central Queensland Coal Facilities Management Enterprise Agreement 2018 at [Appendix D].

[77] Outline of Submissions on behalf of the Applicant at [72].

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