Fair Work Act 2009
s.604—Appeal of decision

Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd
(C2022/7913)

Appeal against decision [2022] FWC 3136 of Deputy President Dean at Canberra on 30 November 2022 in matter number B2022/1705.

Introduction

[1] On 11 November 2022, the Transport Workers’ Union of Australia (TWU) made an application for a protected action ballot order pursuant to s 437 of the Fair Work Act 2009 (Cth) (FW Act). The order sought by the TWU was for a ballot of employees of Cleanaway Operations Pty Ltd (Cleanaway) who are members of the TWU and represented by the TWU for a proposed enterprise agreement to replace the Cleanaway Health Services Silverwater NSW Operations Enterprise Agreement 2019. The proposed agreement, like the existing agreement, would cover truck drivers and plant operators employed by Cleanaway at its site in Silverwater, NSW. Cleanaway opposed the making of the order sought by TWU on the basis that, while it accepted that the TWU was entitled to represent the industrial interests of its truck drivers at the Silverwater site, it had no such entitlement in respect of the plant operators employed there.

[2] The TWU’s application was heard by Deputy President Dean on 25 November 2022. In a decision issued by the Deputy President on 30 November 2022, 1 she upheld Cleanaway’s contention concerning the scope of the TWU’s coverage, finding that the TWU is not entitled to represent the industrial interests of the plant operators at the Silverwater site. The Deputy President issued a protected action ballot order in conjunction with her decision.2 While this order did not, in express terms, exclude plant operators from the group of employees to be balloted, it is presumably to be read consistently with the decision.

[3] On 1 December 2022, the TWU lodged an appeal against the Deputy President’s decision. In its notice of appeal, the TWU contended that the Deputy President erred in finding that it could not represent the industrial interests of Cleanaway’s plant operators at the Cleanaway site. The TWU’s appeal was heard on an expedited basis before us on 15 December 2022 because the Deputy President’s order required that voting in the ballot conclude by no later than 30 working days from the date of the order.

[4] On 16 December 2022, we issued our decision in respect of the appeal. 3 We determined that the Deputy President’s finding that the TWU is not entitled to represent the industrial interests of the plant operators at the Silverwater site was in error, and such employees should have been included in the group of employees to be balloted specified in the order which the Deputy President made. We made orders granting permission to appeal, upholding the appeal, quashing the relevant part of the Deputy President’s decision, and varying the protected action ballot order made by the Deputy President to specify that both the truck drivers and the plant operators were included in the group of employees to be balloted. We stated in the decision that we would publish our full reasons for our decision in due course.

[5] We set out below our reasons for our decision and orders.

The decision under appeal

[6] In her decision, after summarising the evidence of the witnesses (Mr Allan Ramos and Mr Owen Housbey for the TWU and Mr David Tickner for Cleanaway), the main factual finding made by the Deputy President was that the loading and unloading of trucks is the responsibility of the truck drivers and not the plant operators and, to the extent that plant operators undertake loading and unloading, this is not their role and not a task they should ordinarily be performing. 4

[7] The Deputy President’s conclusion on the question of the TWU’s coverage was that she was not satisfied that the plant operators were employed in or in connection with the transport industry, nor that they were employed in or in connection with the occupation of driving. 5 She determined that the evidence did not support a finding that there was a functional connection of any significance, and rather supported a finding that the plant operators’ duties did not include the loading and unloading of trucks as a substantial part of their role, that they had not been trained or inducted for loading and unloading duties, and that the primary purpose of their role was the processing of waste and not the loading and unloading of waste.6

[8] The Deputy President found that the substantial business character of Cleanaway was that of processing waste, and while it was obvious that to process the waste it was necessary to collect it from a customer’s premises and take it to the site to be processed, this did not change the essential character of the business in that the waste was transported for the purpose of processing it. She also accepted a submission made by Cleanaway that it was not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. 7 The Deputy President was not satisfied that there was a sufficient connection between the work of the plant operators and the transport/driving functions, and any loading/unloading work was done for the purpose of processing waste, not for the purpose of simply moving the waste from one place to another, unrelated to such processing.8 The Deputy President concluded that the evidence did not support a finding that the plant operators were:

•  employed in or in connection with the industry of the transport of materials by vehicles or driving;

•  employed in connection with the occupation of driving; or

•  employed in the occupation of loading and unloading on to and/or from vehicles. 9

Submissions

TWU

[9] The TWU’s primary submission was that the Deputy President’s conclusion that it was not entitled to represent the industrial interests of the plant operators was wrong because, first, Cleanaway operated in the road transport industry and, second, the plant operators were employed in connection with the transport of materials by vehicles. It submitted that these matters, taken together, brought the plant operators within the scope of the TWU’s eligibility rule. As to the first proposition, the TWU submitted that its eligibility rule included coverage of the movement or conveyance of materials from one place to another. Cleanaway’s own evidence demonstrated that its health services business unit engaged 50 truck drivers, that it employed more drivers than plant operators in its health services business unit, and that Cleanaway’s truck drivers were engaged to collect medical waste from Cleanaway’s customers and transport (that is, move and convey) that waste away from the customer’s premises. Cleanaway generally charged its customers a fee depending on the waste transported away. It was submitted therefore that Cleanaway’s business involved, as a substantial and integral component, the conveyance or movement of waste materials, and that Cleanaway’s business may also have involved the processing of the waste material did not mean that a substantial character of its business is not the transportation of materials.

[10] As to the second proposition, the TWU submitted that the plant operators’ work was essential for Cleanaway’s operations collecting waste from its clients, in that medical waste collected by Cleanaway’s drivers was transported to the Silverwater facility where the plant operators worked, was contained in bins which were emptied at the facility and then transported from the site for re-use by Cleanaway’s customers and that, absent the work of plant operators in dealing with and processing waste, the transport work of the drivers could not occur. There was, in the circumstances, a functional and practical connection between the work of the plant operators and the transport of materials by vehicle. Furthermore, it was submitted, the plant operators performed their work in close physical proximity with the drivers and were involved in moving bins from the weigh scales at least immediately after the waste had been unloaded from the trucks. The plant operators were therefore employed at least in connection with the transport of materials by or on vehicles and the Deputy President’s conclusion to the contrary was wrong. The TWU also submitted that, for the same reasons, the plant operators were employed in connection with driving for the purposes of its eligibility rule.

Cleanaway

[11] As to the TWU’s contention that its business operated in the transport industry, Cleanaway submitted that there was an unstable and grossly insufficient basis to make any assessment as to the substantial character of any relevant industrial enterprise of Cleanaway. The TWU’s reliance on what was described as Cleanaway’s “health services business unit” was not, or was not established to be, the appropriate measure for the assessment of the substantial character of Cleanaway’s trade or business because, it was submitted, the Commission knows next to nothing about what that business unit actually entails, how many employees are in it and what functions they perform, what other business units Cleanaway may operate, how many of them there are and how big they are (including by comparison with the health services business unit). Cleanaway submitted that the TWU, as the moving party, bore the risk of failure if the evidence was insufficient, and it did not attempt to establish any evidential basis for its contention of coverage of the plant operators.

[12] Cleanaway submitted that, even if the character of this business unit could be assessed, the Deputy President reached the right conclusion as to its substantial character for the reasons she gave. It submitted that a focus on the activities and work of particular employees within that unit distracted attention from the relevant inquiry, and the purpose or object of the health services business unit was the best guide to its substantial character. In this connection, Cleanaway posed the question: was the purpose or object of the health services business unit to transport waste to and from, with the processing of that waste at a static site a mere ancillary component or end result, or was the purpose or object of the business unit to process, treat and dispose of medical waste, with the transport to and from being a necessary ancillary component? Cleanaway submitted that, on the evidence before the Deputy President, it was plainly the latter.

[13] In relation to whether the plant operators were employed in connection with the transport industry, Cleanaway submitted that it was not sufficient that a business used or relied on services from another industry. There was, it submitted, no reasonably identifiable functional connection between the nature or quality of the work that the plant operators performed in processing waste in the plant pursuant to the numerous processes identified in the evidence and the clearly ancillary transportation work undertaken by drivers in transporting that waste to the plant (and in some cases transporting it therefrom). Physical proximity was not established by the evidence and was, in any event, insufficient, and any interaction between the plant operators and truck drivers was peripheral and fleeting and did not establish a functional connection of any significance. Cleanway submitted that, for the same reasons, the plant operators were not employed in connection with the occupation of driving.

Consideration

Statutory framework and the issue to be determined

[14] In our decision of 16 December 2022, we set out the relevant aspect of the statutory framework. In short, the issue relevant to this appeal which the Deputy President had to determine was whether the TWU was “entitled to represent the industrial interests” of the plant operators at Cleanaway’s Silverwater site in relation to the work they would perform under the proposed enterprise agreement. A union is, under the FW Act, entitled to represent the industrial interests of an employee if the employee is eligible for membership of the union under the union’s eligibility rules. 10 There is no dispute that the correctness standard of appellate review applies to this appeal, so that our task is to consider whether the Deputy President’s conclusion that the TWU was not entitled to represent the industrial interests of the plant operators was correct or in error. That requires us to apply the terms of the TWU’s eligibility rule to the facts of this matter in accordance with established principles.

The TWU eligibility rule and relevant principles

[15] Rule 4, Conditions of Eligibility for Membership of the TWU’s rules, provides that union consists of those persons described in Annexure B. The relevant part of Annexure B is in clause A(1), which relevantly provides:

(A)(1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:

(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and

(b) All driving; and

(c) . . .

(relevant parts emphasised)

[16] It has long been recognised that the TWU’s eligibility rule has a hybrid industry and occupational nature. In Transport Workers’ Union of Australia v Qantas Airways Limited, 11 a Full Bench of the Australian Conciliation and Arbitration Commission said:

“The TWU’s eligibility rule is cast in wide terms. By its opening preamble it is capable of applying both to undertakings of employers and occupations of employees.” 12

[17] Where a union eligibility rule is referable to an industry, the relevant industry is that of the employer. 13 An occupational rule, by contrast, refers to the work activities or industrial occupation of employees.14 As to the proper characterisation of an industry or calling, Gibbs CJ said in R v Isaac; Ex parte Transport Workers’ Union of Australia15 (Isaac):

“A decision of the question whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the ‘substantial character’ of the activities carried on: Reg. v. Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia ((1978) 140 C.L.R., at pp. 483-485), and cases there cited. That does not mean that if the enterprise has two purposes, it is necessary to decide which is predominant. It is quite possible that an industry or calling can accurately be described in a number of ways, and the fact that it comes within one description does not mean that it cannot also come within another. For example, in Reg. v. Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia, some of the workers concerned were engaged in road making, as well as in or in connexion with metalliferous mining: see per Jacobs J. ((1978) 140 C.L.R., at pp. 478-479). In the same case, Aickin J. said ((1978) 140 C.L.R., at p. 483):

It does not, in my opinion, follow from the fact that it may be said that an employer is engaged in construction work that he may not also properly be regarded as engaged in activities in or in connexion with metalliferous mining.”

[18] Similarly, Mason J said in R v Cohen; Ex parte Motor Accidents Insurance Board 16 (Cohen):

“It was argued for the Board that its functions under the Act should be considered, not in isolation, but in their totality and that, if this was done, it could not be said that the ‘business’ of the Board was that of insurance. The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as ‘the business of insurance’. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach.”

[19] The breadth of the TWU rule is expanded by the use of the words “in connexion with” in the preamble to clause A(1). In Isaac, Gibbs CJ said in relation to this expression when used in a union eligibility rule:

“The words ‘in connexion with’ in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. Thus it has been held that workers employed to produce coke from coal, in a business of iron and steel manufacturers, were not employed in or in connexion with the coal and shale industry: R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. ((1921) 29 C.L.R. 290, esp. at pp 297, 302). Similarly, workers who produced the coal in those circumstances could not have been said to be employed in or in connexion with the iron and steel industry: cf. Reg. v. Watson; Ex parte Australian Workers’ Union ((1972) 128 C.L.R. 77, at p. 95). The question is one of fact and depends on all the circumstances of the case.” 17

[20] Indicators of the requisite connection may include operational integration or functional interrelationship, physical proximity, identity of employer, establishment or enterprise, and unity of control and management. 18

Factual background

[21] We do not accept Cleanaway’s submission that there was any insufficiency in evidence which would prevent us making proper findings about the industry character of the relevant part of Cleanaway’s business and the role of the work of the plant operators in that context. The evidence given by two of the plant operators at the Silverwater site, Mr Ramos and Mr Housbey, for the TWU, as well as by Mr Tickner, Cleanaway’s Operations Supervisor at the site (including the documents annexed to Mr Tickner’s witness statement), explained in detail the operations of the relevant part of Cleanaway’s business, particularly as it pertained to the work of the employees at the Silverwater site to be covered by the proposed enterprise agreement. There was no issue of credit in respect of any of the evidence of these witnesses, and accordingly we consider that we are in as good a position as the Deputy President to determine the relevant facts, which may be summarised as follows.

[22] The relevant business operated by Cleanaway is known as Cleanaway Daniels Health Services, and forms part of what it describes as its “health services business unit”. 19 This business operates from a number of locations in New South Wales, the largest of which is at the Silverwater site.20 The proposed enterprise agreement would cover some 70 employees at the Silverwater site, of which 36 are truck drivers and 34 are plant operators.21 Other truck drivers (14) and plant operators (11) are employed at the other business locations.22

[23] Cleanaway’s business at Silverwater involves the provision of a specialist integrated service for the transport, treatment and disposal of medical waste. 23 The business is managed from offices at the Silverwater site.24 Clients contract with Cleanaway for the provision of a single “end-to-end” service which is charged on the basis of the weight of the medical waste removed.25 The truck drivers employed by Cleanaway collect the waste from clients’ premises (including hospitals, medical clinics, doctors’ surgeries and pharmacies)26 which has been placed by clients into bins or, in the case of “sharps”, in lockable containers which have been provided by Cleanaway.27 The waste is then transported by the drivers in Cleanaway trucks to the Silverwater site.28

[24] Upon arrival at the Silverwater site, the bins are generally unloaded from the trucks by the drivers (using a tailgate) and weighed at the scales adjacent to the loading dock. 29 The bins are then moved to a staging area, generally by the driver but sometimes with the assistance of plant operators.30 From this point the bins are collected by plant operators and generally emptied by plant operators (using a tipping machine) into the autoclave machine. The autoclave machine, which is operated by plant operators, sterilises and melts the waste. The sterilised waste is then shredded and compacted, and loaded onto a truck operated by a third-party contractor to be sent to landfill.31 Plant operators assist with the loading of such trucks by ensuring that the “packer barrel” in which the sterilised waste is contained is in position to be hooked and lifted onto the truck by use of a lift hoist operated by the truck driver.32 The emptied bins from the incoming trucks are washed at the wash bay by plant operators and then stored ready for return to clients’ premises by the truck drivers.33

[25] Some waste is required to be incinerated at the Silverwater site. A small number of plant operators with forklift licences use forklifts to pick up pallets containing waste and dispose of them in bin tippers which lead to the furnace. Once incineration is completed, plant operators collect the ash from the back of the furnace and transport it to a machine which cools it. A plant operator then disposes of the ash in a skip bin. 34

[26] The “sharps” containers are generally removed from incoming trucks by the drivers and are then collected by plant operators and placed on a conveyor belt. The conveyor belt weighs the containers (for the purpose, again, of charging the client), and an automated process then opens and empties the containers. The containers are then washed and sanitised for re-use, and plant operators visually inspect them to ensure that the labelling, barcodes and locks are in good condition. 35

[27] A plant operator is required to check the packing slip for the next truck driver to arrive at the Silverwater site for information concerning what empty waste bins and containers will be needed for the driver’s route. The plant operator will then place the required bins and containers into a single line and, and the arriving driver will collect these and load them onto the truck. Plant operators may provide assistance with this task. 36

[28] Plant operators are also required to load semi-trailer trucks which attend the Silverwater site with empty bins, empty “sharps” containers or waste to be processed at a different Cleanaway site. Multiple plant operators might be required to undertake this task to ensure that it is completed quickly and efficiently. 37

Is the TWU entitled to represent the industrial interests of the plant operators?

[29] The Deputy President appears to have rejected the proposition that Cleanaway, in respect of the business it operates from the Silverwater site, operates in the transport industry on the basis of her finding that the substantial or essential character of the business is the processing of waste, and that the business transports waste merely for the purpose of processing it. This finding ignores the principle stated in Isaac and Cohen, in the passages quoted in paragraphs [17] and [18] above, that the purpose of a business and the industry in which it operates may be described or characterised in multiple ways. As stated by a Full Bench of the Australian Industrial Relations Commission in Harnischfeger of Australia Pty Ltd v CFMEU:

“The substantial character of a business may be in or in connection with more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a ’substantial character’ to operate as distinct businesses or enterprises within the employer’s overall operation.” 38

(footnotes omitted)

[30] To characterise Cleanaway’s business at Silverwater as having the substantial character of waste processing does not exclude the proposition that the business operates in the transport industry. The question posed by Cleanaway in its submissions as to whether the waste management function is merely ancillary to the road transport function, or vice versa, is misconceived because it forecloses the possibility that a business may have a substantial character which places it in more than one industry or, to put it alternatively, has substantial business activities in different industries. In this case, Cleanaway’s own induction manual for its drivers describes its business in the following way: “Cleanaway Daniels specialises in the transport, treatment and disposal of dangerous, hazardous and at times non-hazardous waste” 39 (underlining added). The same induction manual provides for detailed rules and procedures for the lawful, safe and efficient conduct of its road transport operations in the business. Cleanaway owns and operates a substantial fleet of trucks for the purpose of the conduct of the business. As earlier outlined, the majority of the agreement-covered employees are truck drivers. An essential feature of the service it provides its clients is that the clients’ medical waste is removed from the clients’ premises and transported by road to the Cleanaway site for processing. That the ultimate purpose of the transport function is the treatment and disposal of the waste at Silverwater does not mean that road transport is not a substantial feature or activity of Cleanaway’s business. In our view, it is clear that Cleanaway’s business at the Silverwater site operates in the road transport industry, regardless of whatever other industries it might be said to operate in.

[31] We consider that it is equally clear that the plant operators at the Silverwater site are engaged to work in connection with the road transport industry, in that they work in close connection with that part of Cleanaway’s business which carries out road transport functions. Having regard to our earlier outline of the factual background, the following matters demonstrate the requisite connection:

(1) The plant operators are employed by the same employer as the truck drivers, work under the same management, and are physically located at the same site.

(2) The plant operators and the trucks drivers are employed in a single, integrated business.

(3) Cleanaway provides a single, “end-to-end” service to clients which consists of the work performed by both the truck drivers and the plant operators.

(4) The plant operators work in close physical proximity to the truck drivers, at the point where bins and containers unloaded from the trucks are collected from either the weigh scale or the staging area and at the point where empty and sterilised bins and containers are prepared for loading onto trucks.

(5) The work of the drivers and plant operators is functionally integrated. The performance of the work of the plant operators is dependent upon the transport of the medical waste to the Silverwater site; likewise, the performance of the work of the truck drivers is dependent upon the plant operators emptying the bins and containers, processing the waste, and washing the bins and containers for return by the drivers to clients’ premises so that they can be filled. The unloading, weighing, staging, emptying and treatment process is an integrated one involving the work of both truck drivers and plant operators. In the case of waste which is not treated at the Silverwater site, the role of the plant operators is a “cross-docking” function intermediate between incoming and outgoing road transport functions.

[32] The position here is, we consider, highly analogous to that considered by the Commission 40 in Australian Municipal, Administrative, Clerical and Services Union v Linfox Armaguard Pty Ltd.41 The question in that case was whether employees engaged in the “coin room”, “cash room” and “receipt and despatch” (or “Currency Processing”) functions of the Armaguard business at a site in Queensland were entitled to be members of the TWU. The Commission said:

“[26] It is clear that Armaguard’s business is much broader than the transportation of cash. The notion of end to end ATM services involves hardware decisions, replenishment, line maintenance, cash handling, cash transportation, currency management, funding, reconciliation and reporting. The Murarrie facility is a high security operation operating as a depot for the fleet of armoured vehicles and a Currency Processing Centre for loading, unloading and processing the cash to be delivered to and from ATMs and financial institutions.

[27] Having regard to the description of ‘Replenishment Services’ set out above, I am of the view that much of the work at the Currency Processing Centre is integrated with the transportation of cash to the ATM for replenishment. The pre-packing of exchange cassettes and the reconciliation of removed cassettes on their return are functions with a close connection with the transportation of cash between the centre and ATM locations. Indeed, it is difficult to imaging the cash management services being provided independently of the transportation of cash. The transport of cash is a high security operation conducted by trained and armed security guards in purpose built vehicles. This is a highly specialised transport service. The vertical integration of other services arises from, and is highly dependent upon, the transportation function.

[28] While descriptions such as cash management could accurately be used to describe the Currency Processing Centre I also consider that the business conducted by Armaguard through its Murarrie Currency Processing Centre is in or in connection with the industry of the transport of goods and merchandise by or on vehicles. I find therefore that Armaguard operates in an industry falling within the TWU rules and employees of Armaguard employed in the Murarrie Cash Management Centre are eligible to belong to the TWU.”

[33] A Full Bench of the Commission refused permission to appeal this decision. 42 The Full Bench said:

“[12] His Honour’s findings are consistent with the manner in which the TWU’s eligibility rule has been construed in the past and the application of the evidence before him to those rules. In this respect we note the evidence about the activities carried on by Armaguard was principally led by the TWU. We observe that even if the business of Armaguard could be characterised as being in the cash management industry that of itself would not mean that its business could not also be characterised as being in connection with the transport industry. In this respect the evidence was sufficient to establish a close functional and organisational relationship between the cash and coin rooms, receipt and dispatch and transportation.”

[34] The above passage would apply directly to this case if references to cash and coin were replaced with references to waste.

[35] In construing and applying union eligibility rules, it is permissible to take into account the common understanding of the rules furnished by “statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries”. 43 Of particular utility in this context are federal awards, including consent awards, made by predecessor tribunals to the Commission at a time when the legislative award-making power was founded upon the industrial disputes power in s 51(xxxv) of the Constitution, since a union could only be a party to an industrial dispute if the dispute involved employees eligible to be its members.44 The conclusion we have reached about the TWU’s coverage of plant operators at Cleanaway’s business at Silverwater is consistent with the previous award history.

[36] The current modern award which covers Cleanaway’s operations at Silverwater is the Waste Management Award 2020 45 (previously the Waste Management Award 2010).46 This award’s classification structure, in addition to a range of truck-driving functions, includes the following job functions:

•  labourers and depot hands at any waste management facility including but not limited to transfer stations, landfills, recycling centres, alternative waste treatment facilities and incinerators (clause 12.2(a));

•  waste treatment and/or handling and/or disposal facility attendant and/or process worker (clause 12.2(b));

•  weighbridge operator (clause 12.3(a));

•  incinerator operator (clause 12.4(c));

•  operator of earthmoving plant at a waste management facility (clauses 12.4(d) and 12.8(b)); and

•  intermodal facility operator and tipping platform operator (clause 12.8(a).

[37] Although this award is not a legal indicator of union coverage, its combination of road transport and waste management facility functions shows the degree of connection and integration between these functions.

[38] The immediate federal pre-modernisation predecessor to the Waste Management Award 2010 was the Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001, 47 which operated in all states and territories apart from New South Wales and the Australian Capital Territory. This was an award made in resolution of an interstate industrial dispute(s) between the TWU and the named respondents to the award. Clause 7 provided:

The terms and conditions of this award are binding on the Transport Workers Union of Australia, the employers listed in Schedule A and any subsidiary company in respect of all their employees whether members of the Transport Workers Union of Australia or not, whose employment is covered by the award.

[39] Clause 6 of this award provided:

The industry and callings covered by this award is in or in connection with the collection and/or transportation and/or handling of any waste or any material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed or in any other state or form) for the purpose of disposal to transfer stations, landfill, incinerators, recycling depots or yards or terminals, treatment plants, compost facilities, etc. or for the purposes of recycling and/or re-use.

[40] The classification structure in clause 15.2.1 of this award, included, in addition to a range of truck-driving functions, the following job functions:

•  general attendant;

•  waste collection and/or treatment and/or handling and/or disposal facility attendant;

•  furnace operator;

•  incinerator operator; and

•  operator of earth moving plant.

[41] An earlier corporate emanation of Cleanaway was a respondent to the award.

[42] In New South Wales, the position prior to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) coming into effect (which rendered State private sector awards non-operative) was that the waste removal and treatment industry was covered by a common-rule award of the Industrial Relations Commission of NSW, the Transport Industry – Waste Collection and Recycling (State) Award. 48 The classification structure for this award, in addition to truck driver functions, encompassed (in clause 2(i)):

•  depot hands at transfer stations/landfill sites;

•  depot hands, garbage and/or recyclable materials;

•  sorters/treaters of recyclable materials including those engaged at Recycling and Transfer Depots, Waste Disposal Facilities, and Alternative Waste Treatment Facilities;

•  operators at Recycling and Transfer Depots and Alternative Waste Treatment Facilities;

•  drivers of mechanical diggers, trenchers, shovels, dozers, graders, compactors, forklift drivers and front-end loaders;

•  weighbridge operators;

•  drivers/operators of graders, dumpers, tractors, loaders, compactors, skid steer tractor[s], dragline shovel operators, at landfill sites; and

•  intermodal facility operators and tipping platform operators. 

[43] The award history therefore demonstrates that the proposition that plant operators, however described, employed at waste treatment/disposal facilities work in or in connection with the road transport industry and fall within the coverage of the TWU is long-established. Indeed, prior to this case, that could fairly have been characterised as an uncontroversial proposition.

[44] We conclude therefore that the TWU is entitled to represent the industrial interests of the plant operators employed by Cleanaway at the Silverwater site because, in respect of the TWU’s eligibility rule, they are “employed in or in connexion with the industry … of … [t]he transport of … any material whatsoever, by or on vehicles”. Were it necessary to do so, we would also find, for substantially the same reasons as set out above, that the plant operators are also “employed … in connexion with the … occupation, … calling, … vocation, … or industrial pursuit[] of … driving”. The Deputy President erred by concluding otherwise.

ACTING PRESIDENT

Appearances:

M Gibian SC with P Boncardo of counsel for the appellant.
M Follett of counsel with M Garozzo of counsel for the respondent.

Hearing details:

2022.

Sydney, Melbourne and Brisbane by video link using Microsoft Teams:
15 December.

Printed by authority of the Commonwealth Government Printer

<PR749765>

 1   [2022] FWC 3136

 2   PR748318

 3   [2022] FWCFB 240

 4   [2022] FWC 3136 at [36]

 5   Ibid at [41]

 6   Ibid

 7   Ibid at [42]

 8   Ibid at [43]

 9   Ibid at [46]

 10   Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55, 262 CLR 456

 11   [1985] Cth ArbRp 231, 297 CAR 385, 11 IR 145

 12   Ibid at 387, 147

 13   Re Federated Liquor and Allied Industries Employees’ Union of Australia (1977) 51 ALJR 266 at 268

 14   Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union [1988] FCA 81, 29 IR 263 at 272

 15   [1985] HCA 80, 159 CLR 323 at 332-333

 16   [1979] HCA 46, 141 CLR 577 at 589

 17   [1985] HCA 80, 159 CLR 323 at 333

 18   Ibid at 331-334 per Gibbs CJ; R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51, 140 CLR 470 at 477 per Jacobs J; Re Federated Liquor and Allied Industries Employees’ Union of Australia (1977) 51 ALJR 266 at 268-269 per Barwick CJ; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9, 77 CLR 123 at 141 per Dixon J.

 19   Witness statement of David Tickner, 23 Nov 2022 at [2] (Appeal Book at p 94)

 20   Ibid at [5] (Appeal Book at p 94)

 21   Ibid at [9] (Appeal Book at p 95)

 22   Ibid at [10] (Appeal Book at p 95)

 23   Ibid at [2] and annexure DT-2 at p 4 (Appeal Book at pp 94 and 101)

 24   Ibid at annexure DT-1; transcript, 25 Nov 2022 at PNs 274-280

 25   Witness statement of Allan Ramos, 18 Nov 2022 at [23] (Appeal Book at p 88); witness statement of David Tickner, 23 Nov 2022 at [11] (Appeal Book at p 95); transcript, 25 Nov 2022 at PN 184

 26   Witness statement of Allan Ramos, 18 Nov 2022 at [9] (Appeal Book at p 88); witness statement of Owen Housbey, 18 Nov 2022 at [13] (Appeal Book at p 92)

 27   Witness statement of Allan Ramos, 18 Nov 2022 at [27], [29], [32] and [36] (Appeal Book at p 89); witness statement of Owen Housbey, 18 Nov 2022 at [21] and [24]-[25] (Appeal Book at p 92); witness statement of David Tickner, 23 Nov 2022 at [6] (Appeal Book at p 94)

 28   Witness statement of Allan Ramos, 18 Nov 2022 at [8]-[10] (Appeal Book at pp 87-88); witness statement of Owen Housbey, 18 Nov 2022 at [12]-[19] (Appeal Book at p 92); witness statement of David Tickner, 23 Nov 2022 at [8] (Appeal Book at p 94)

 29   Witness statement of Allan Ramos, 18 Nov 2022 at [22]-[23] (Appeal Book at p 88); witness statement of David Tickner, 23 Nov 2022 at [12] and [16] (Appeal Book at p 95); transcript, 25 Nov 2022 at PNs 114-127, 182-188

 30   Witness statement of David Tickner, 23 Nov 2022 at [6]-[7] and [12]-[13] (Appeal Book at pp 94-95); transcript, 25 Nov 2022 at PNs 115-124, 185-190

 31   Witness statement of Allan Ramos, 18 Nov 2022 at [21]-[26] (Appeal Book at pp 88-89); witness statement of Owen Housbey, 18 Nov 2022 at [22]-[23] (Appeal Book at p 92)

 32   Witness statement of Owen Housbey, 18 Nov 2022 at [23]-[24] (Appeal Book at p 92); witness statement of David Tickner, 23 Nov 2022 at [23] (Appeal Book at p 96); transcript, 25 Nov 2022 at PNs 163-172

 33   Witness statement of Allan Ramos, 18 Nov 2022 at [33]-[36] (Appeal Book at p 89); witness statement of David Tickner, 23 Nov 2022 at [13] (Appeal Book at p 95)

 34   Witness statement of Allan Ramos, 18 Nov 2022 at [37]-[39] (Appeal Book at p 89); witness statement of David Tickner, 23 Nov 2022 at [6]-[7] (Appeal Book at p 94)

 35   Witness statement of Allan Ramos, 18 Nov 2022 at [29]-[34] (Appeal Book at p 89)

 36   Ibid at [35]-[36] (Appeal Book at p 89); witness statement of Owen Housbey, 18 Nov 2022 at [25]; witness statement of David Tickner, 23 Nov 2022 at [13] and [18]

 37   Witness statement of Allan Ramos, 18 Nov 2022 at [40]-[42] (Appeal Book at p 90); witness statement of Owen Housbey, 18 Nov 2022 at [26]-[31]; witness statement of David Tickner, 23 Nov 2022 at [21] (Appeal Book at p 96)

 38   [2005] AIRC 890, 152 IR 243 at [86]

 39   Witness statement of David Tickner, 23 Nov 2022, annexure DT-2 at p 4 (Appeal Book at p 101)

 40   Then known as Fair Work Australia.

 41   [2012] FWA 7238

 42   [2013] FWCFB 968, 228 IR 365

 43   R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 68, 153 CLR 402 at 408.

 44   Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141, 49 FLR 355 at 370

 45   MA000043

 46   See clauses 4.1(b) and 4.2(b) of the Cleanaway Health Services Silverwater NSW Operations Enterprise Agreement 2019.

 47   AP812785

 48   AN120614