[2020] FWCFB 1235
The attached document replaces the document previously issued with the above code on 12
March 2020.
An error in the appearances has been corrected.
Associate to Vice President Hatcher.
Dated 17 March 2020.
1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
Spotless Facility Services Pty Ltd
(C2019/5648)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE SYDNEY, 12 MARCH 2020
Appeal against decision [[2019] FWC 5890] of Deputy President Lake at Brisbane on 23
August 2019 in matter number AG2018/5225.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has
lodged an appeal, for which permission to appeal is required, against a decision issued by
Deputy President Lake on 23 August 20191 (decision) in which he approved the Spotless
Central Queensland Coal Facilities Management Enterprise Agreement (Agreement). The
CFMMEU contends that the decision was made in error because, in respect of the
classification of Level 2 - Heavy Cleaner provided for in the Agreement, the Agreement did
not pass the better off overall test (BOOT).
[2] It is a requirement for approval of an enterprise agreement under s 186(2)(d) of the
Fair Work Act 2009 (FW Act) that, subject to the operation of ss 189 and 190, the
Commission must be satisfied that the Agreement passes the BOOT. The content of the
BOOT in respect of non-greenfields agreement is provided for in s 193(1) as follows:
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off
overall test under this section if the FWC is satisfied, as at the test time, that
each award covered employee, and each prospective award covered employee, for the
agreement would be better off overall if the agreement applied to the employee than if
the relevant modern award applied to the employee .
[3] Under s 193(1), a comparison is required to be made between the enterprise agreement
in question and the “relevant modern award” in respect of “award covered employees” and
“prospective award covered employees” in order to determine if the BOOT is passed. The
definition of the expression “award covered employee” in s 193(4) makes it apparent that a
“relevant modern award” is one that at “test time” is in operation, covers the employee in
1 [2019] FWC 5890
[2020] FWCFB 1235
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 1235
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relation to the work they are required to perform under the agreement, and covers their
employer. An equivalent definition is contained in the definition of “prospective award
covered employee” in s 193(5). The “test time” is, under s 193(6), the time the application for
approval of the agreement is made. It is therefore necessary for the relevant modern award(s)
to be identified in order to correctly assess whether an agreement passes the BOOT.
[4] Spotless Facility Services Pty Ltd (Spotless) is the employer bound by the Agreement,
and it made the application for approval of the Agreement on 17 September 2018. The Form
F17 statutory declaration which accompanied the application for approval of the Agreement
identified (at paragraph 3.1) eight awards as being the relevant modern awards for the purpose
of the BOOT. These included the Cleaning Services Award 2010 (Cleaning Award), but did
not include the Black Coal Mining Industry Award (BCMI Award). On 2 October 2018 the
CFMMEU wrote to the Commission indicating that it was a bargaining representative for the
Agreement, that it sought permission to be heard in relation to the approval of the Agreement
and, if such permission was granted, it would oppose the approval of the Agreement. The
CFMMEU ultimately pressed only one issue in relation to the Agreement, namely that the
BCMI Award and not the Cleaning Award was the relevant modern award for the purpose of
the BOOT in respect of the Level 2 - Heavy Cleaner classification. It appears to have been
common ground that if the CFMMEU’s contention was correct, the Agreement would not
pass the BOOT, but that otherwise there was no difficulty with the BOOT. This issue, which
was the only contested issue, was eventually the subject of a hearing before the Deputy
President on 28 June 2019.
[5] Paragraph (c) of clause 2, Parties Covered of the Agreement includes as “parties to
this agreement” the following:
c) Employees of the Company engaged in the classifications set out in Appendix D to
provide services at the following coal mine operations, and the associated
accommodation villages servicing these mine operations:
Lake Lindsay
German Creek
Grasstree
Moranbah North Mine
Grosvenor Mine
Dawson Mine
Middlemount South Mine
Callide Mine
[6] Clause 3, Application provides:
3. Application
This Agreement applies to Employees engaged to perform work in the classifications
set out in Appendix D, who are employed by the Company in relation to work
performed at coal mine operations and associated village, housing and town services
in Queensland.
[7] In general terms, the classifications in Appendix D encompass persons performing
food preparation, food service, cleaning (including industrial cleaning), security,
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administrative and maintenance functions. The two industrial cleaning classifications are as
follows:
Level 1 – Light Industrial:
An Employee in this classification is one who has proven skills and performs those
tasks customarily performed by cleaners utilising a range of materials and equipment
to clean a range of surfaces in order to restore or maintain buildings including offices/
crib rooms/ workshops / tool stores / bathhouse / wash bays / load out plants in a clean
and hygienic condition.
Indicative tasks and duties which an Employee at this level may perform, on a daily or
periodic basis are:
a) Maintenance of hard and soft floors including steam cleaning of carpet,
stripping and sealing of hard floors, sweeping, mopping and buffing using
industrial machinery;
b) Cleaning of glass of both internal and external windows;
c) High pressure washing, rubbish collection and recycling;
d) Rearranging furniture, moving furniture;
e) all other cleaning tasks such as dusting, vacuuming, toilet and ablution
cleaning
Level 2 –Heavy Industrial:
In addition to duties of level 1:
a) The use of heavy duty high pressure wash equipment
b) Industrial cleaning in relation to shut downs and maintenance on draglines and face
shovels.
c) Cleaning duties in relation to coal washeries and maintenance workshops including
operation of light equipment including forklifts, utilities and SUV vehicles, small front
end loaders, bobcat and dingo. Use of mining equipment– Spotless commits that
Spotless Employees will not operate mining equipment and heavy vehicles.
Equipment and vehicles operated will be only those that are required for carrying out
the duties of the classifications in the Agreement. (See Appendix D level 2 – Heavy
equipment)
d) Operations of all relevant machinery
e) Cleaning of aprons, trenches, drains and grates
[8] The evidence before the Deputy President demonstrated that Spotless only engages
heavy industrial cleaners at two of the mine sites covered by the Agreement, namely Callide
and Dawson, and focused on the work of four employees at the Callide Mine. The following
matters were not in dispute in this connection:
the Spotless Group is a contract services provider, which provides services including
cleaning services to a wide range of clients on a contract basis;
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Spotless is an employing entity in the Spotless Group;
Spotless entered into a contract with Anglo American Metallurgical Coal Pty Ltd
(AAMC) and associated entities in 2010 to provide facility management services,
including industrial cleaning services, at a number of mine sites and associated
accommodation villages including the Callide Mine;
in 2016 Batchfire Resources Pty Ltd (Batchfire) acquired the Callide Mine, and
Spotless continued to provide services on an uninterrupted basis;
there are five industrial cleaning positions provided by Spotless, of which one position
consists of a majority of light industrial cleaning covered by the Level 1 – Light
Industrial classification in the Agreement;
the other four positions are two field maintenance industrial cleaners and two
workshop industrial cleaners;
the field maintenance industrial cleaners perform heavy duty high pressure washing of
digger and drilling machines in the pit, cleaning of coal handling and preparation
plants, cleaning of draglines and ground maintenance and garden work, and this work
is covered by the Level 2 – Heavy Industrial classification in the Agreement;
the workshop industrial cleaners perform heavy duty high pressure washing of
production equipment at the heavy vehicle wash pad, and also perform additional
cleaning duties in and around the workshop, and this work is also covered by the
Level 2 classification; and
there is a roster by which Spotless personnel are assigned to these positions on various
shifts.
[9] Clause 4.1 of the BCMI Award provides that it covers “… employers of coal mining
employees as defined in clause 4.1(b) and … coal mining employees”. Clause 4.1(b) defines
“coal mining employees” in the following way:
Coal mining employees are:
(i) employees who are employed in the black coal mining industry by an employer
engaged in the black coal mining industry, whose duties are directly connected
with the day to day operation of a black coal mine and who are employed in a
classification or class of work in Schedule A—Production and Engineering
Employees or Schedule B—Staff Employees of this award;
(ii) employees who are employed in the black coal mining industry, whose duties
are carried out at or about a place where black coal is mined and are directly
connected with the day to day operation of a black coal mine and who are
employed in a classification or class of work in Schedule A—Production and
Engineering Employees or Schedule B—Staff Employees of this award; and
(iii) employees employed by a mines rescue service.
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[10] Clause 4.2 defines “black coal mining industry” as follows
4.2 For the purposes of this award, black coal mining industry has the meaning
applied by the courts and industrial tribunals, including the Coal Industry
Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a) the extraction or mining of black coal on a coal mining lease by means
of underground or surface mining methods;
(b) the processing of black coal at a coal handling or coal processing plant
on or adjacent to a coal mining lease;
(c) the transportation of black coal on a coal mining lease; and
(d) other work on a coal mining lease directly connected with the
extraction, mining and processing of black coal.
[11] Clause 4.3 excludes from the above definition a number of specified categories of
work, none of which are referable to the work of the heavy industrial cleaners. Clause 4.8
provides:
4.8 Subject to clauses 4.1 and 4.2, where an employer is covered by more than one
award, an employee of that employer is covered by the award classification
which is most appropriate to the work performed by the employee and to the
environment in which the employee normally performs the work.
[12] The CFMMEU contended that the heavy industrial cleaners at the Callide Mine were
covered by the “Mineworker” classification in the BCMI Award. The definition of this
classification in clause A.2.3 of Schedule A of the award is as follows:
A.2.3 Mineworker
A Mineworker is an employee who is assessed by the employer as competent to
perform the required tasks in a variety of operating circumstances and under limited
supervision. An employee continues in this classification until assessed for
advancement to Mineworker - Advanced.
[13] The CFMMEU did not dispute the proposition that the work performed by the heavy
industrial cleaners at the Callide Mine fell with the coverage of the Cleaning Award. Clauses
4.1, 4.2 and 4.8 of the Cleaning Award are relevant in this connection and provide:
4.1 This industry award covers employers throughout Australia in the contract
cleaning services industry and their employees in the classifications listed
in Schedule D—Classifications to the exclusion of any other modern award.
4.2 The contract cleaning services industry means the business of providing
cleaning services under a contract and includes:
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000001/ma000001-05.htm#P147_10369
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000001/ma000001-05.htm#P138_9341
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(a) cleaning (including event cleaning, trolley collection and hygiene and
pollution control but excluding trolley collection covered by
the General Retail Industry Award 2010); and
(b) minor property maintenance which is incidental or peripheral to
cleaning.
. . . .
4.9 To avoid doubt this award does not apply to an employer merely because that
employer, as an incidental part of a business that is covered by another award
has employees who perform functions referred to in clause 4.2 or in the
classification descriptions referred to in Schedule D.
NOTE: Where an employer is covered by more than one award, an employee
of that employer is covered by the classification which is most appropriate to
the work performed by the employee and to the environment in which the
employee normally performs the work.
[14] Spotless contended before the Deputy President and without contradiction from the
CFMMEU that the heavy industrial cleaners fell within the scope of the classification
“Cleaning Services Employee Level Two” (CSE 2) in the Cleaning Award. That classification
is defined in clause D.2 of Schedule D of the award as follows:
D.2 A Cleaning Services Employee Level Two (CSE 2) is an employee who at
the completion of training is capable of performing work within the scope of
this level. Such an employee performs work above and beyond the skills of an
employee at CSE 1 level and:
works from complex instructions and procedures;
assists in the provision of on-the-job training;
works under general supervision either individually or in a team;
is responsible for assuring the quality of their own work; and
performs those tasks customarily performed by cleaners.
D.2.1 A CSE 2 may be required to perform any duties of a CSE 1 and, in addition,
performs any of the following indicative tasks or a combination of such tasks,
for the greater part of each day or shift:
routine repair work and/or building maintenance (of a non-trade nature) in
or about the facility;
ordering and distribution of toilet and other requisites and cleaning
materials;
customer or public relations duties as required;
carrying out those roles expected of a leading hand (and is paid the
allowance as stipulated in clause 17.5);
carpet cleaning;
cleaning windows on the exterior of multi-storied buildings from swing
scaffolds, boatswain’s chairs, hydraulic bucket trucks or similar devices;
operating ride-on powered machinery;
operating steam cleaning and pressure washing equipment;
maintaining gardens, lawns and rockeries;
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000022/ma000022-22.htm#P472_44348
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000022/ma000022-45.htm#P1087_109788
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000022/ma000022-05.htm#P142_9309
[2020] FWCFB 1235
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trimming edges, mowing lawns, sowing, planting, watering, weeding,
spreading fertiliser, clearing shrubs and trimming hedges;
vehicular rubbish collection and operating mobile compaction units; and
specialist computer cleaning.
The decision
[15] After setting out the background to the matter, the Deputy President first addressed
whether the Heavy Industrial Cleaners in question were covered by the BCMI Award. The
Deputy President noted that the CFMMEU (relying on paragraph (ii) of the definition of “coal
mining employees” in clause 4.1(b) of the BCMI Award) had contended that the employees in
question were directly connected with the day to day operations of black coal mining and
were employed in a classification in Schedule A of the award. The Deputy President
described this as a “two-step test” which he would need to consider.2
[16] However the Deputy President then referred to a passage from the judgment of Dixon
J in R v Central Reference Board; Ex parte Theiss (Repairs) Pty Ltd3 in which his Honour
distinguished between the repair and overhaul of earth-moving and excavating equipment
used in open-cut coal mining being conducted “as an integral part of the operations of open
cut-mining so as to form an indivisible element of the undertaking” or as part of a “separate
and independent engineering operations outside the undertaking”, and said “[t]he difference
must depend on circumstances the chief of which must be separateness of establishments in
point of control, organisation, place, interest, personnel and equipment. It must in the end
come down to a matter of degree”. The Deputy President then treated the considerations
identified by Dixon J, together with the place where the work was performed,4 as the criteria
by which he would determine whether the heavy industrial cleaners were “coal mining
employees” within paragraph (ii) of the clause 4.1(b) definition.5 After referring to some of
the evidence, the Deputy President found that while the criteria of place of work and possibly
equipment favoured the CFMMEU’s position, the criteria of point of control, organisation,
interest, personnel and equipment favoured Spotless’ position.6 The Deputy President then
concluded that, on the basis of these criteria, the heavy industrial cleaners were not, on
balance, in the coal mining industry and were therefore not covered by the BCMI Award.7
[17] The Deputy President next considered, in the event that he was wrong concerning this
conclusion, the question of whether the heavy industrial cleaners were covered by the
Mineworker classification in the BCMI Award, and concluded (by reference to the
classification structure in the Coal Mining Industry (Production and Engineering) Interim
Consent Award, September 1990) that they were not.8
[18] The Deputy President then considered, if he was wrong in concluding that the heavy
industrial cleaners were not covered by the BCMI Award, which of the BCMI Award or the
2 Ibid at [19]
3 (1948) 77 CLR 123 at 140-141
4 See Australian Collieries Staff Association and Queensland Coal Owners Association No 20 of 1980, 22 February 1982
Print CR 2997 at [16]
5 Ibid at [21]-[25]
6 Ibid at [39]-[66]
7 Ibid at [67]-[68]
8 Ibid at [69]-[83]
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Cleaning Award would be the most appropriate and therefore relevant award if they both
covered the employees in question. The Deputy President determined that the more relevant
and appropriate award for assessing the BOOT for the heavy industrial cleaners was the
Cleaning Award, mainly on the basis of a conclusion that these employees did not perform a
large portion of the indicative duties contained in Schedule A of the BCMI Award.
Appeal grounds and submissions
[19] The CFMMEU’s appeal grounds and submissions contended that:
paragraph (ii) of the definition of “coal mining employees” in clause 4.1 of the BCMI
Award required the Deputy President to consider whether the duties of the heavy
industrial cleaners were “directly connected with the day to day duties of a black coal
mine”, but he gave no consideration to this but rather erroneously focused on the
industry of the employer which was relevant only to paragraph (i) of the definition;
the evidence showed that the work of the heavy industrial cleaners was an essential
part of the maintenance process for mining equipment, was undertaken day in, day out
and thus was directly connected to production;
on the plain and ordinary meaning of the words used in Schedule A of the BCMI
Award, the classification of mineworker covered the heavy industrial cleaners;
alternatively, the basis upon which the Deputy President determined that the BCMI
Award did not cover the heavy industrial cleaners was based on a number of errors of
fact, including as to the degree of control exercised by Batchfire, the degree of
organisational separation between Spotless and Batchfire, the commonality of interest
between the heavy industrial cleaners and Batchfire, the degree of personnel
separation as between Batchfire and Spotless and the identity of the provider of the
equipment; and
further in the alternative, the Deputy President erred in his consideration as to which
was the more appropriate award in that he failed to take into account the position of
prospective award covered employees, made incorrect findings of fact as to the
amount of heavy industrial work performed, wrongly characterised the primary
purpose of the heavy industrial cleaners’ work as cleaning work, and failed to take into
account the status quo as to award coverage which existed prior to the commencement
of the BCMI Award and which was expressly preserved in the note appearing after
clause 4.2 of the BCMI Award.
[20] Spotless submitted that the CFMMEU’s appeal would necessarily fail unless it could
demonstrate error in the Deputy President’s finding that the Cleaning Award was the most
appropriate pursuant to the note to clause 4.9 of that award and clause 4.8 of the BCMI
Award. The Cleaning Award, Spotless submitted, was clearly the most appropriate award
because the Level 2 – Heavy Industrial classification under the Agreement incorporated the
duties of the Level 1 – Light Industrial classification, which the CFMMEU accepted was
solely covered by the Cleaning Award. Apart from the fact that the work of the heavy
industrial cleaners was undertaken at a black coal mining site, which was a given if it was
covered by the BCMI Award as well as the Cleaning Award, the CFMMEU had advanced no
substantive response to this. The CFMMEU had made no submission at first instance
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concerning prospective award covered employees, there was no evident error in the Deputy
President’s characterisation of the purpose of the work, and the status quo as to coverage prior
to the commencement of the BCMI Award was a consideration irrelevant to the issue of the
most appropriate award coverage.
[21] Spotless further submitted in the alternative that the Deputy President was correct to
find that no classification in the BCMI Award covered the heavy industrial cleaners. The
CFMMEU had failed to identify any words in Schedule A of the BCMI Award which referred
to cleaning, and the history of preceding awards did not assist the CFMMEU’s position. Nor
did the evidence demonstrate that the work of the heavy industrial cleaners was directly
connected to the extraction, mining and processing of black coal such as to bring it within the
coverage provisions of the BCMI Award, since at the highest the cleaning of mining
equipment was performed anterior to and therefore was only connected to maintenance tasks.
For these reasons, Spotless submitted, permission to appeal should be refused or,
alternatively, the appeal should be dismissed.
Consideration
[22] We consider that permission to appeal should be refused because it is clear that the
Cleaning Award and not the BCMI Award covers the work of the heavy industrial cleaners in
question. The CFMMEU’s appeal submissions, and the Deputy President’s reasons, attempt
to resolve the question of award coverage by reference to the coverage provisions of the
BCMI Award. That is, with respect, the wrong starting point.
[23] As we have earlier stated, there was no dispute before the Deputy President, or before
us, that the work of the heavy industrial cleaners fell within the coverage of the Cleaning
Award. That agreed position was undoubtedly correct. Spotless is in the business of, among
other things, providing cleaning services under contract to other businesses, and the duties of
the Level 2 – Heavy Industrial classification under the Agreement as well as the actual duties
of the heavy industrial cleaners at the Callide Mine involve employment within that aspect of
Spotless’ business. The work of the cleaners also falls within the plain words of the definition
of the classification of CSE 2 in Schedule 2 of the Cleaning Award, which we have earlier set
out. That means that the work of the employees in question comfortably fits within the
coverage delineated by clause 4.2 of the Cleaning Award.
[24] Beyond that point, there is no need to consider whether the work in question falls
within the coverage provisions in clause 4 of the BCMI Award, or whether pursuant to the
note to clause 4.9 of the Cleaning Award or clause 4.8 of the BCMI Award the former or the
latter award provides the most appropriate classification for the work. That is because clause
4.1 of the Cleaning Award provides that its coverage operates “to the exclusion of any other
modern award”. To the extent that there is any possibility of overlapping coverage by the
Cleaning Award and the BCMI Award, these words resolve this in favour of sole coverage by
the Cleaning Award. By contrast, the coverage provisions in clause 4 of the BCMI Award
contain no provisions excluding the coverage of the Cleaning Award.
[25] The Cleaning Award is therefore the relevant modern award for the purpose of the
application of the BOOT to the heavy industrial cleaners covered by the Agreement. The
conclusion reached by the Deputy President was correct, albeit that it was reached for the
wrong reasons. The CFMMEU’s appeal grounds, although they raise a number of matters of
substantial merit in their criticism of the Deputy President’s reasoning, are ultimately
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incapable of altering the outcome even if upheld because they do not address the exclusionary
words in clause 4.1 of the Cleaning Award. There is therefore no utility in giving them further
consideration.
[26] Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
A Walkaden with S Brunker on behalf of the Construction, Forestry, Maritime, Mining and
Energy Union.
S Meehan of counsel with E Mayr on behalf of Spotless Facility Services Pty Ltd.
Hearing details:
2019.
Melbourne:
9 December.
Printed by authority of the Commonwealth Government Printer
PR717304
OF THE FAIR WORK MISSION THE
