1
[2013] FWCFB 2894
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
The Australian Workers' Union
v
Coffey Information Pty Limited
(C2012/6708)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT SAMS
COMMISSIONER ROBERTS SYDNEY, 24 MAY 2013
Appeal against decision [2012] FWAA 10317 of Commissioner Cargill at Sydney on
13 December 2012 in matter number AG2012/7719 - approval of enterprise agreement -
whether appropriate award used for the purpose of the better off overall test - Fair Work Act
2009 - ss. 185, 186, 604.
Introduction
[1] This decision concerns an application by the Australian Workers’ Union (AWU) for
permission to appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision1
of Commissioner Cargill on 13 December 2012 to approve the Coffey Materials Testing
Services Agreement 2012-20162 (the Agreement).
[2] The basis for the challenge to the decision is the use of the appropriate award for the
application of the “Better Off Overall Test” (BOOT) under s.186(2)(d) of the Act. The
Commissioner utilised the Manufacturing and Associated Industries and Occupations Award
20103 (the Manufacturing Award). The AWU contends that the applicable award is the
Building and Construction General On-site Award 20104 (the On-site Award).
[3] At the hearing of the appeal in Sydney on 3 May 2013, Mr S Crawshaw, SC, with
Mr S Crawford appeared on behalf of the AWU, Mr Y Shariff, of counsel with Mr O Fagir
appeared on behalf of Coffey Information Pty Ltd (Coffey).
Background
[4] Coffey is a division of the Coffey Group - a global professional services consultancy
specialising in the areas of geosciences, project management and international development.
Four of its six divisions provide geo-scientific services to various clients. Those divisions are:
Coffey Geotechnics - provides specialist ground engineering or geotechnical
engineering services to mining, oil and gas, infrastructure, commercial/industrial
AUSTRALIA FAIR WORK COMMISSION
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development, residential development and onshore and offshore marine
infrastructure;
Coffey Information - performs independent testing, verification, conformity
assessment of construction materials on behalf of mining, oil and gas,
infrastructure, commercial/industrial development and residential development
clients;
Coffey Mining - provides consultancy, operational support and other services to the
mining and quarrying sectors; and
Coffey Environments - provides technical and advisory services in respect of
environmental, social, health and safety, waste management and energy monitoring
services.
[5] The divisions operate under separate legal entities but provide their services in an
integrated way. They jointly bid for projects and engage one another’s expertise and share
physical facilities. The second of those divisions (Coffey) is the applicant in the proceedings
before Commissioner Cargill for the approval of an agreement covering approximately 330
employees engaged in the role of ‘Testing Technician’.
[6] The work covered by the Agreement is primarily geotechnical testing and analysis. It
essentially involves employees collecting samples from a site and testing them in a laboratory.
The tests range from basic to quite complex. The most basic tests conducted by Coffey
technicians are soil testing, field density testing and concrete testing. The laboratories at
which this work is performed may be permanent laboratories, known as ‘base labs’
established at Coffey premises in capital cities and regional centres, or temporary laboratories
established at a client’s site.
[7] The temporary sites are commonly established on major infrastructure projects where
a client is remote from a Coffey base lab or where the volume of work is such that the base
lab cannot cope. There has been a shift to greater use of temporary labs in recent years.
Mr Kelaher, the major projects manager of Coffey, gave evidence that this is the result of
increased infrastructure spending in NSW and flood damage reconstruction and LNG projects
in Queensland. As at September 2012 approximately one third of the employees covered by
the agreement were based permanently at on-site laboratories. Mr Kelaher said that he
considered this change to be cyclical and that as infrastructure spending abates he expected a
return to the historical position of a much larger proportion of work being performed from
base labs.
[8] Mr Muller, a technician employed by Coffey gave evidence about the duties he
performed. They include concrete testing, soil testing and a wide range of testing duties. The
tests he carries out include mixer efficiency tests, air tests, slump testing, bleed tests, core
drilling, penetrometer tests and quality control tests.
Award Coverage
[9] The central question in the proceedings before the Commissioner and in this appeal is
the identification of the applicable award or awards that apply to the employees covered by
the Agreement. The Manufacturing Award is a hybrid industry and occupational award.
[2013] FWCFB 2894
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Coffey relies on aspects of its occupational coverage of technical workers. The On-site Award
is an industry award covering the building and construction industry. Both awards are
confined to employees falling within classifications in the award. The awards contain
provisions dealing with the interaction between them. It is necessary to consider the coverage
provisions in detail.
[10] Clause 4.1 of the Manufacturing Award states:
“4.1 This award covers employers throughout Australia of employees in the
Manufacturing and Associated Industries and Occupations who are covered by the
classifications in this award and those employees.”
[11] The occupations falling within this description in clause 4.9(c) include ‘technical
workers’. The definition of the term ‘technical workers’ in clause 3 is as follows:
“technical workers are employees who are or who are mainly engaged:
(d) in the conducting of scientific or engineering work on:
(i) analytical, investigational, developmental, experimental or research
work of a technical nature in connection with chemical, biochemical,
physical chemical, bacteriological physics, physical testing or
metallurgical processes; or
(ii) investigational, developmental, experimental, research or technical
control work in manufacturing or pilot plants; or
(e) in assisting in the operations set out in (d)(i) and/or (d)(ii) by:
(i) the preparation or care of apparatus or materials; or
(ii) the recording or tabulating of results; or
(iii) any other means.”
[12] The Manufacturing Award contains a limitation on the application of the occupational
parts of its coverage. Clause 4.2(a) provides:
“4.2 The award does not cover:
(a) an employer who is outside the scope of clause 4.9(a) or (b) unless such
employer employs an employee covered by clause 4.9(c) and the employer is
not covered by another modern award containing a classification which is more
appropriate to the work performed by the employee.”
[13] The classifications of employees referred to by Coffey are the C9, C11, C13 and C14
classifications. The definitions of these classifications in the Manufacturing Award is as
follows:
[2013] FWCFB 2894
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“B.3.3 Wage Group: C14
(a) Engineering/Manufacturing Employee—Level I
(i) An Engineering/Manufacturing Employee—Level I is an employee
who is undertaking up to 38 hours induction training which may include
information on the enterprise, conditions of employment, introduction
to supervisors and fellow workers, training and career path
opportunities, plant layout, work and documentation procedures,
occupational health and safety, equal employment opportunity and
quality control/assurance.
(ii) An employee at this level performs routine duties essentially of a
manual nature and to the level of their training:
performs general labouring and cleaning duties;
exercises minimal judgement;
works under direct supervision;
is undertaking structured training so as to enable them to work at the
C13 level.
B.3.4 Wage Group: C13
(a) Engineering/Manufacturing Employee—Level II
(i) An Engineering/Manufacturing Employee—Level II is an employee
who has completed up to three months structured training so as to
enable the employee to perform work within the scope of this level.
(ii) An employee at this level performs work above and beyond the
skills of an employee at the C14 level and to the level of their skills,
competence and training:
works in accordance with standard operating procedures and
established criteria;
works under direct supervision either individually or in a team
environment;
understands and undertakes basic quality control/assurance procedures
including the ability to recognise basic quality deviations/faults;
understands and utilises basic statistical process control procedures;
follows safe work practices and can report workplace hazards.
[2013] FWCFB 2894
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B.3.6 Wage Group: C11
(a) Engineering/Manufacturing Employee—Level IV
Laboratory Tester
(i) An Engineering/Manufacturing Employee—Level IV is an employee
who has completed an Engineering Production Certificate II or
Certificate II in Engineering—Production Technology or equivalent so
as to enable the employee to perform work within the scope of this
level.
(ii) A Laboratory Tester is an employee who has completed a
Certificate II, or equivalent, in Sampling or Measurement so as to
enable the employee to perform work within the scope of this level.
(iii) An employee at this level performs work above and beyond the
skills of an employee at the C12 level and to the level of their skills,
competence and training:
works from complex instructions and procedures;
assists in the provision of on-the-job training;
co-ordinates work in a team environment or works individually under
general supervision;
is responsible for assuring the quality of their own work;
in a laboratory the employee performs basic/simple routine tests under
close supervision and communicates results of those tests to the
appropriate personnel.
B.3.8 Wage Group: C9
(a) Engineering/Manufacturing Tradesperson—Level II
(i) An Engineering/Manufacturing Tradesperson—Level II is an:
Engineering Tradesperson (Electrical/Electronic)—Level II; or
Engineering Tradesperson (Mechanical)—Level II; or
Engineering Tradesperson (Fabrication)—Level II; or
Furnishing Industry Tradesperson Level 2; or
equivalent.
[2013] FWCFB 2894
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who has completed the minimum training requirements specified in
clause B.2.1 of Schedule B or equivalent.
(ii) An Engineering/Manufacturing Tradesperson—Level II works
above and beyond a tradesperson at the C10 level and to the level of
their skills and competence and training performs work within the scope
of this level:
exercises discretion within the scope of this classification;
works under limited supervision either individually or in a team
environment;
understands and implements quality control techniques;
provides trade guidance and assistance as part of a work team;
operates lifting equipment incidental to their work;
performs non-trade tasks incidental to their work.
(b) Engineering/Laboratory Technician—Level I
(i) An Engineering/Laboratory Technician—Level I is an employee
who has the equivalent level of training of the C9 level
Engineering/Manufacturing Tradesperson or equivalent so as to enable
the employee to apply skills within the scope of this level. The skills
exercised by the Engineering/Laboratory Technician—Level I are in the
technical field including draughting, planning or technical tasks,
including in a laboratory, requiring technical knowledge.
(ii) At this level the employee is engaged on routine tasks in the
technical field. In a laboratory the employee performs basic laboratory
duties using written, spoken or diagrammatic instructions and/or basic
quality control assurance procedures and techniques under general
supervision-either individually or in a team environment.”
[14] The On-site Award coverage clause contains the following terms:
“4.1 This industry award covers employers throughout Australia in the on-site building,
engineering and civil construction industry and their employees in the classifications
within Schedule B—Classification Definitions to the exclusion of any other modern
award.
4.2 Without limiting the generality of the exclusion, this award does not cover
employers covered by:
(a) the Manufacturing and Associated Industries and Occupations Award
2010;
...
[2013] FWCFB 2894
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4.10 For the purposes of clause 4.1:
...
(b) civil construction means:
(i) the construction, repair, maintenance or demolition of:
civil and/or mechanical engineering projects;
power transmission, light, television, radio, communication, radar,
navigation, observation towers or structures;
power houses, chemical plants, hydrocarbons and/or oil treatment
plants or refineries;
silos; and/or
sports and/or entertainment complexes;
....
(v) the testing of soil, concrete and aggregate when it is carried out at a
construction site in or in connection with work under clause 4.10(b)(i);”
[15] The classifications in the On-site Award include:
“B.2.1 Construction worker level 1/Engineering construction worker level 1
(CW/ECW 1)
(a) A CW/ECW 1 works under general supervision in one or more skill
streams contained within this award. An employee at CW/ECW 1 (level d) will
have:
(i) successfully completed, in accordance with RPL principles, a
construction skills test equivalent to the required competency standards;
or
(ii) successfully completed a relevant structured training program
equivalent to the required competency standards; or
(iii) successfully completed an Engineering Construction Industry Skills
Certificate Level 1 consisting of 16 appropriate modules; or formally
recognised equivalent accredited training so as to enable the employee
to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work
experience subject to competency testing to the prescribed standards
[2013] FWCFB 2894
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CW/ECW 1 (level a)
(new entrant)
Upon commencement in the industry
CW/ECW 1 (level b) After three months in the industry
CW/ECW 1 (level c) After twelve months in the industry
CW/ECW 1 (level d) Upon fulfilling the substantive
requirements of Construction Worker
1/Engineering Construction Worker 1
as detailed above
(b) An employee at the CW/ECW 1 (level d) performs work above and beyond
the skills of an employee at CW/ECW 1 (level c) and to the level of their
training and:
is responsible for the quality of their own work subject to general
supervision;
works under general supervision either individually or in a team
environment;
exercises discretion within their level of skills and training;
works in a safe manner;
identifies basic faults in materials and equipment;
interacts harmoniously with employees of other companies on-site;
adapts to a changing work environment;
communicates essential information; and
works from instructions and procedures articulated in written, spoken and/or
diagrammatic form.
(c) Skills and duties
(i) An employee at this level performs work to the extent of their skills,
competence and training. Employees will acquire skills both formal and
informal over time and with experience, and will undertake indicative
tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT, and
may be required to perform a range of duties across the skill streams
contained within this award. An employee at this level:
works from instructions and procedures;
assists in the provision of on-the-job training to a limited degree;
[2013] FWCFB 2894
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co-ordinates work in a team environment or works individually under
general supervision;
is responsible for assuring the quality of their own work;
has a qualification in first aid.
(d) Indicative tasks which an employee at this level may perform include the
following:
uses precision measuring instruments;
basic material handling functions;
operate small plant and pneumatic machinery;
inventory and store control;
operate a range of hand tools and oxy welding equipment;
has a knowledge of the construction process and understands the sequencing
of construction functions;
is able to provide first aid assistance to other employees;
sheet metal soldering;
tack welding;
operation of mobile equipment including forklifts, hand trolleys, pallet
trucks, overhead cranes and winch operation;
ability to measure accurately;
assists one or more tradespersons;
(e) The CW/ECW 1 classification incorporates the following broadbanded
award classifications:
Adult trainee terrazzo worker
Aircon group 2
Aircon group 3
Aluminium alloy structural worker
Assistant powder monkey
[2013] FWCFB 2894
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Assistant rigger
Bar bending machine operator
Bitumen worker
Builders’ labourer group 4
Cable jointer
Cement gun operator
Chainperson
Concrete cutting or drilling machine operator
Concrete floater
Concrete formwork stripper
Concrete gang worker
Concrete gun or pump operator
Cook’s offsider, work boat driver
Crane chaser
Demolition labourer
Dresser and grinder
Drilling machine operator
Dump cart operator
Employee directly assisting a tradesperson
Erector (wire mesh)
Fencer
Gantry hand or crane hand
General hand
Geotextile/geomembrane worker level 1
Insulator
[2013] FWCFB 2894
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Ironworker on construction
Jackhammerman
Kerb and gutter layer
Lagger 1st assembler B
Lagger 2nd six months
Landscape labourer
Linesperson
Machinist (precast concrete manufacture)
Machinist grade 1
Mess attendant, camp attendant
Mixer driver (concrete)
Mobile concrete pump hoseperson or line hand
Mobile crane driver
Painter brush hand
Pick or shovelman
Plasterer, terrazzo or stonemason’s assistant
Roof layer (malthoid or similar material)
Sheetmetal worker 2nd class
Spray painter
Steel erector
Stonemason assistant—factory (Queensland and Tasmania)
Terrazzo assistant
Tool/material storeman
Tradesperson’s labourer
Welder 2nd class
[2013] FWCFB 2894
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(f) An employee at this level may be undergoing training so as to qualify as a
CW/ECW 1 (level d) or CW/ECW 2. Where possible, an employee at Levels 1
(level a), 1 (level b) and 1 (level c) will be provided with access to accredited
structured training approved by the relevant Skills Council.
B.2.2 Construction worker level 2/Engineering construction worker level 2
(CW/ECW 2)
(a) A CW/ECW 2 works under limited supervision in one or more skill streams
contained within this award. A CW/ECW 2 will:
(i) have completed in accordance with RPL principles a Construction
Skills Test equivalent to the required competency standards; or
(ii) have completed relevant structured training equivalent to the
required competency standards; or
(iii) successfully completed an Engineering Construction Industry
Certificate Level 2 consisting of a total of 20 appropriate modules, or
formally recognised equivalent accredited training so as to enable the
employee to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work
experience subject to competency testing to the prescribed standard.
(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills,
competence and training. Employees will acquire skills both formal and
informal over time and with experience, and will undertake indicative
tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT and
may be responsible for the supervision of one or more employees
working at CW/ECW 1 level.
(iii) An employee at this level:
can interpret plans and drawings relevant to their functions;
assists with the provision of on-the-job training;
assumes responsibility for allocating tasks within a WAT within the
area of the employee’s skill, competence and training;
has some responsibility for the order and purchase of materials within
defined parameters;
is able to sequence functions relevant to the employee’s WAT;
[2013] FWCFB 2894
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applies quality control techniques to the employee’s own work and
other employees within the WAT;
works from complex instructions and procedures;
co-ordinates work in a team environment or works individually under
general supervision;
is responsible for assuring the quality of their work;
works in a safe manner;
exercises discretion within their level of training;
understands the construction process in their sector and has a basic
level of understanding of processes in other sectors;
implements basic fault-finding and problem solving skills within the
employee’s sphere of work;
interacts harmoniously with employees of other companies on-site;
anticipates and plans for changes to the work environment.
(c) Indicative tasks which an employee at this level may perform include the
following:
calculates safe loads and stress factors;
measures accurately using specialised equipment;
non-trades maintenance of relevant plant and equipment;
anticipates and plans for constant changes to the work environment.
materials handling;
operates machinery and equipment requiring the exercise of skill and
knowledge beyond that of an employee at CW/ECW 1 (level d);
uses measuring and levelling instruments;
performs basic quality checks on the work of others;
oxy acetylene cutting.
(d) The CW/ECW 2 classification incorporates the following broadbanded
award classifications:
Aircon group 1
[2013] FWCFB 2894
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Concrete batching plant operator
Concrete finisher
Employee operating power driven portable saw
Forklift over 4500kg
Foundation shaftsworker
Geotextile/geomembrane worker level 2
Hoist or winch driver
Landscaper
Manhole builder
Pitcher or beacher
Powder monkey
Scaffolder
Spotter
Steelfixer
Storeman
Tack welder
Tool sharpener
Traffic controller
Wall builder
(e) An employee at this level may be undergoing training so as to qualify as a
CW/ECW 3.
B.2.3 Construction worker level 3/Engineering construction worker level 3
(Engineering construction tradesperson level 1) (CW/ECW 3)
(a) A CW/ECW 3 works individually or in a team environment in one or more
skill streams contained within this award. A CW/ECW 3 will:
(i) have successfully completed a relevant trade apprenticeship or its
AQF equivalent; or
[2013] FWCFB 2894
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(ii) have successfully completed, in accordance with RPL principles, a
Construction Skills Test for this level; or
(iii) have successfully completed the required competency standards; or
(iv) have successfully completed an Engineering Construction Industry
Certificate Level 3 consisting of a total of 24 appropriate modules or
formally recognised equivalent accredited training so as to enable the
employee to perform work within the scope of this level; or
(v) obtained skills equivalent to the above gained through work
experience subject to competency testing to the prescribed standard,
any one of which will qualify the employee as a CW/ECW 3.
(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills,
competence and training. Employees will acquire skills both formal and
informal over time and with experience, and will undertake indicative
tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be responsible for the supervision of
one or more employees working at CW/ECW 1 or CW/ECW 2 level.
(iii) An employee at this level:
understands and applies quality control techniques;
exercises good interpersonal and communication skills;
exercises measuring and calculation skills at a higher level than
CW/ECW 2;
exercises discretion within the scope of this grade;
performs work of a trades or non-trades nature which is incidental or
peripheral to the employee’s main function and facilitates the
completion of the whole task;
is able to inspect products and/or materials for conformity with
established operational standards;
assists in the provision of on-the-job training;
understands and applies quality control techniques;
exercises good interpersonal communication skills;
[2013] FWCFB 2894
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exercises discretion within the scope of this grade;
performs work under limited supervision either individually or in a
team environment.
(c) Indicative tasks which an employee may perform at this level include the
following:
allocates functions within a WAT;
production sequencing and materials handling of a level more advanced than
CW/ECW 2;
trade skills associated with certificated trades within the scope of this award;
has a sound understanding of the construction process;
specialised materials handling;
operates machinery and equipment requiring the exercise of skill and
knowledge beyond that of an employee at CW/ECW 2;
performs work which is incidental or peripheral to the primary tasks and
facilitates the completion of the whole task;
sheetmetal fabrication;
system assembly;
welding and cutting;
mechanical installation.
(d) The CW/ECW 3 classification incorporates the following broadbanded
award classifications:
Air compressor operator
Air-conditioning tradesperson
All winch driver
Artificial stoneworker
Battery fitter
Bitumen sprayer
Boilermaker and/or structural steel tradesperson
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Bricklayer
Bridge and wharf carpenter
Carpenter
Caster
Concrete finisher, powered
Concrete spreader, powered
Crawler tractor with power operated attachments (up to and including 2000kg
shipping mass)
Crusher operator aggregate (dimension stone quarries)
Drainer
Dumper, rear and bottom (up to and including 2 cubic metres struck capacity)
Electric motor attendant
Electrical fitter
Electrical mechanic
Fitter
Fixer
Floor layer specialist
Floorsander
Forklift driver
Form setter
Gardener
Geotextile/geomembrane worker level 3
Glazier
Hand sprayer, lance type
Joiner
Locksmith
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Machinist
Marble and slateworker
Marker off
Mobile concrete line pump operator
Mobile hydraulic platform operator
Motor mechanic
Operator, drilling machine, up to and including 155 mm diameter
Operator, pneumatic tyred tractor with power operated attachments (up to
and including 15 kW net engine power)
Operators of other cranes up to and including 5 ton
Painter (including Artworker, Spraypainter, Shotblaster and Sandblaster)
Paviour (including segmental paving)
Pipe layer (any kind of pipes)
Plant mechanic
Plasterer
Prefab tradesperson
Qualified/trade cook
Quarryworker (dimension stone quarries)
Refrigeration mechanic
Renderer in pipes, tunnels or covered drains
Rigger
Dogger
Roller, vibrating (under 4 ton)
Roof fixer
Rooftiler (including Roof Slater)
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Second driver—Navvy and dragline or dredge-type excavator
Serviceperson
Sheetmetal worker 1st class
Shophand
Slate ridge or roof fixer
Stonemason
Tilelayer
Timberperson
Tradesperson (radio)
Tradesperson (precast concrete manufacture)
Tradesperson landscaper
Trenching machine (small Ditch-Witch type)
Welder 1st class
Welder special class
(e) An employee at this level may be undergoing training so as to qualify as a
CW/ECW 4.”
The Decision under Appeal
[16] The Commissioner expressed her conclusions on the question of award coverage as
follows:
“[77] I am satisfied on the basis of the evidence of Mr Kelaher that the employees are
engaged in various degrees of analytical and investigational work of a technical nature
in connection with physical testing. That brings them within the definition of technical
workers and consequently within the list of occupations in clause 4.9(c). The
classification structure set out in Schedule B to the award includes at C11, Laboratory
Tester and at C9 and above, Laboratory Technician.
[78] However, because of clause 4.2 of the Manufacturing Award, it is necessary to
also consider whether Coffey is covered by another modern award containing a
classification which is more appropriate to the work of the employees. The only other
award which has been suggested is the On-Site Award.
[79] Clause 4.1 of the On-Site Award states:
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“This industry award covers employers throughout Australia in the on-site
building, engineering and civil construction industry and their employees in
the classifications within Schedule B—Classification Definitions to the
exclusion of any other modern award.”
[80] Clause 4.2 provides that the award does not cover employers covered by, among
others, the Manufacturing Award. Clause 4.8 deals with the situation where an
employer is covered by more than one award.
[81] Clause 4.9 defines the industry as:
“For the purpose of clause 4.1, on-site building, engineering and civil
construction industry means the industry of general building and construction,
civil construction and metal and engineering construction, in all cases
undertaken on-site.”
[82] The relevant part of the industry in this matter is said to be civil construction.
That is defined in clause 4.10(b) in the following terms:
“civil construction means:
(i) the construction, repair, maintenance or demolition of:
civil and/or mechanical engineering projects;
....
(v) the testing of soil, concrete and aggregate when it is carried out at a
construction site in or in connection with work under clause 4.10(b)(i)”
[83] The issue is whether or not Coffey is an employer in the on-site building,
engineering and civil construction industry. In order to answer this question it is
necessary to consider the evidence. As can be seen from the earlier summary there is
no real conflict between the evidence of Mr Kelaher on the one hand and the AWU
witnesses on the other. The evidence of Mr Callinan and Mr Muller was very helpful
however it necessarily reflected only the parts of Coffey’s operations with which they
are familiar. Mr Kelaher’s evidence related to the business as a whole.
[84] Coffey does not dispute that a proportion of its employees undertake their duties
at construction sites. Mr Kelaher’s evidence is that, in September 2012, approximately
one third of relevant employees were based at on-site labs. It is also his evidence that
this is a relatively recent phenomenon and is the result of a cyclical rather than
structural shift. He expects it to return to its historical position.
[85] It is of note that Mr Kelaher’s evidence is that less than 10% of the tests that
Coffey performs are carried out on site. It is also of note that he says that some
employees move between base labs and on-site labs on a daily basis.
[86] A consideration of all of the evidence leads me to conclude that Coffey is not an
employer in the on-site building, engineering and construction industry. It follows that
[2013] FWCFB 2894
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the On-Site Award does not cover the company. It also follows from that and my
conclusions in paragraph 77 above that the Manufacturing Award does cover it.
Consequently that is the relevant award for the purposes of the BOOT.”
Grounds of Appeal
[17] The AWU contends in this appeal that the above conclusions are incorrect. The AWU
submits that the On-site Award is at least an applicable award for the purposes of the BOOT
and the approval of the Agreement was wrongly determined because it failed to apply the
BOOT in relation to the On-site Award. Coffey submits that the terms of the awards are
intended to avoid overlapping coverage, and once it is determined that the Manufacturing
Award applies, these terms establish that the On-site Award does not apply.
[18] As the decision is a mixed question of fact and law, the appeal bench needs to
determine whether the conclusion reached by the Commissioner is in error. We will consider
whether the Manufacturing Award applies to the employees in question, the interaction
between the two awards and whether the On-Site Award applies.
Does the Manufacturing Award apply?
[19] In our view, the geotechnical analysis conducted by the technicians covered by the
Agreement involving collecting samples and applying tests in the laboratory is properly
described as scientific work and analytical work of a technical nature in connection with
physical testing processes. We reject the AWU’s contention that the work cannot be described
as scientific work. In our view conducting tests in a laboratory is inherently work of a
scientific nature and is within normal conceptions of that term. We also find that the work is
analytical and involves physical testing processes. In our view, for these reasons, the work of
the Coffey technicians falls within the description of technical workers in the Manufacturing
Award.
[20] Further, we are of the view that the classifications in the Manufacturing Award apply
to the technicians. The C11 classification clearly applies to Laboratory Testers who have
completed a Certificate II in sampling or measurement or the equivalent. The C9
classification applies to laboratory employees who use technical knowledge above the trades
level.
[21] For those who have not completed the Certificate II qualification we are of the view
that one of the lower classifications, C13 and C14 would apply. The definitions of these
classifications are very broad and cover more basic work in an engineering or manufacturing
environment, primarily with on the job training. In our view the work of the technicians such
as Mr Muller can be so described. We reject the AWU contention that unqualified technicians
are not covered by the Manufacturing Award at all. In our view the Manufacturing Award is
intended to cover all semi-skilled and unskilled employees covered by the relevant industries
and occupations and not leave gaps in coverage as contended for by the AWU.
The Interaction between the Awards
[22] The awards contain interaction rules to govern the situation when more than one
award may apply. Clause 4.2(a) of the On-Site Award, set out above, excludes the application
of the On-site Award if the employees are covered by the Manufacturing Award. Clause
[2013] FWCFB 2894
22
4.2(a) of the Manufacturing Award excludes the operation of that award if the coverage is
based only on the occupational coverage of the award and the employer is covered by another
award containing a classification which is more appropriate to the work performed by the
employee.
[23] These provisions require a consideration of whether there is a more appropriate
classification in the On-site Award, on the assumption that it otherwise applies. In our view
the provisions establish a priority in favour of the Manufacturing Award where there is not a
more appropriate classification in another applicable award.
[24] We are unable to conclude that the classifications in the On-site Award are more
appropriate to the classifications in the Manufacturing Award. The Manufacturing Award
contains classifications which specifically cover laboratory work and the work of technical
workers. The Manufacturing Award covers such employees on a very wide occupational
basis. Less qualified employees are nevertheless covered by general semi-skilled
classifications.
[25] The On-site Award applies very widely to employers in the construction industry. The
classifications are of a very general nature. They contain no specific mention of laboratory or
testing work although the definition of the civil construction industry does. The technicians
work on such projects as the company may be contracted to provide its specialist services
from time to time. Long term employees will usually perform their work in a base lab or at
multiple locations. Most of the work is performed at base labs. In our view a classification
structure designed for workers in the construction industry cannot be considered more
appropriate than the technical stream in the Manufacturing Award.
[26] It follows that the Manufacturing Award covers the technicians and by virtue of clause
4.2(a) of the On-site Award, the On-site Award does not cover them.
Does the On-site Award apply?
[27] It is strictly unnecessary that we consider the basis that the Commissioner found that
the On-site Award did not apply or indeed whether the On-site Award would apply if the
interaction provisions did not render it inapplicable. Whether Coffey is an employer in the
building and construction industry depends on an analysis of the services it provides, the
relationship between those services and the construction activity and the application of the
definitions in the On-site Award.
[28] Given the specialist nature of its services and the significant proportion of those
services provided at a laboratory location some distance from the construction activities we
doubt that the employer’s business can be legitimately described as the construction of civil or
mechanical engineering projects. Other aspects of the award coverage provisions are broader.
Notwithstanding its primary activities at base laboratories we tend to the view that a part of its
business can be described as testing at a construction site or testing in connection with
construction work. However the On-site Award does not cover the technicians in any event
because of the interaction provisions of the awards.
[2013] FWCFB 2894
23
Conclusions
[29] As the matter involves complex questions as to the coverage of awards for the
purposes of the BOOT we grant permission to appeal. However, for the reasons given we
dismiss the appeal. We find that the Commissioner correctly determined that the
Manufacturing Award was the only relevant award for the purposes of applying the BOOT.
VICE PRESIDENT WATSON
Appearances:
S Crawshaw, SC with S Crawford for the Australian Workers’ Union
Y Shariff, of counsel, with O Fagir for Coffey Information Pty Limited
Hearing details:
2013.
Sydney.
May, 3.
Printed by authority of the Commonwealth Government Printer
Price code C, PR536473
1 [2012] FWAA 10317.
2 AE898675.
3 MA000010.
4 MA000020.
COMMISSION AUSTRALIA THE SEAL OF FA
