1
Fair Work Act 2009
s.604—Appeal of decision
Brad Allgood and Ors
v
Kal Tire (Australia) Pty Ltd
(C2020/5972)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER LEE
MELBOURNE, 9 NOVEMBER 2020
Appeal against decision [2020] FWC 3689 of Deputy President Saunders at Newcastle on 14
July 2020 in matter number C2019/7149.
Introduction
[1] The appellants are members of the Construction, Forestry, Maritime, Mining and
Energy Union and were until approximately 28 November 2019, employees of the
respondent, Kal Tire (Australia) Pty Ltd. During their employment the appellants were
engaged to work at the Mount Thorley/Warkworth Open Cut Coal Mine (Mine) located at
Mount Thorley near Singleton in northern New South Wales. The respondent had contracted
with the operator of the Mine to provide services relating to the repair and maintenance of the
rubber tyres of vehicles used at the Mine. The appellants were in dispute with the respondent
about the modern award which covered and applied to them during their employment. The
appellants contended that they were covered by the Black Coal Mining Industry Award 2010
(Black Coal Award) while the respondent contended that the appellants were covered by the
Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).
[2] An application on behalf of the appellants was made to the Commission for it to deal
with the dispute pursuant to the dispute resolution procedure in the Black Coal Award. The
dispute was not resolved through conciliation and the parties gave their consent for the
dispute to be resolved by arbitration.
[3] Relevantly, Deputy President Saunders determined that the roles held by the appellants
fell within the coverage of the Black Coal Award and the Vehicle Award. The Deputy
President applied the decision in CFMMEU v Spotless Facility Services Pty Ltd1 to resolve
the question of overlapping coverage between the Black Coal Award and the Vehicle Award
by reference to the words “to the exclusion of any other modern award” in clause 4.1 of the
Vehicle Award. He concluded that the Vehicle Award prevails over the Black Coal Award.
1 [2020] FWCFB 1235
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DECISION
E AUSTRALIA FairWork Commission
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2
Accordingly, the Deputy President determined that the appellants were covered by the
Vehicle Award during their employment with the respondent.2
[4] By notice of appeal lodged on 31 July 2020, the appellants have applied for
permission to appeal the Deputy President’s decision in Groves and Ors v Kal Tire3
(Decision) and if granted appeal that Decision.
The Decision
[5] After setting out some introductory matters at [1]-[5] of the Decision, the Deputy
President considers the overlapping coverage between the Black Coal Award and the Vehicle
Award. At [8]-[10] of the Decision, the Deputy President discusses the decision in Spotless,
noting the appellants’ contention that Spotless can be distinguished.
[6] Spotless concerned an appeal against a decision to approve an enterprise agreement.
An issue agitated both at first instance and on appeal was the applicable modern award for the
purposes of assessing whether the enterprise agreement passed the better off overall test. The
contest was as between the Black Coal Award and Cleaning Services Award 2010 (Cleaning
Award). The Cleaning Award, like the Vehicle Award but unlike the Black Coal Award,
contained a provision that it covered employers in the identified industry and their employees
in classifications for which the award made provision “to the exclusion of any other modern
award”. The Full Bench in Spotless resolved the question raised on appeal by determining that
once an employer and relevant employees fell within the coverage of the Cleaning Award,
there was no need to consider whether the work in question also fell within the coverage
provisions of the Black Coal Award because the Cleaning Award operates “to the exclusion
of any other modern award.”4
[7] The Cleaning Award also contained the following note at the end of clause 4:
“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.”
[8] The Full Bench determined it was unnecessary to have resort to the note once it was
determined that the employer and relevant employees fell within the coverage provision of
clause 4.1 because once so covered the Cleaning Award operates to the exclusion of any other
modern award.5
[9] At [11]-[20] of the Decision, the Deputy President expresses reservations about the
correctness of the decision in Spotless and sets out the reasons for his reservations, which
briefly stated were:
First, the note below clause 4.9 of the Cleaning Award and a corresponding
provision in clause 4.3(b) of the Vehicle Award would never have any work to do
2 Groves and Ors v Kal Tire [2020] FWC 3689 at [147], [149]
3 [2020] FWC 3689
4 [2020] FWCFB 1235 at [23]-[24]
5 Ibid
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if the effect of the earlier provision is that the coverage of the award operates “to
the exclusion of any other modern award”; 6
Secondly, 105 of the 121 modern awards contain a provision to the effect that the
award operates “to the exclusion of any other modern award”. When an employer
and relevant employees fall within the coverage provision of two awards which
both contain the exclusionary provision one becomes entrapped in a circular
argument from which there is no sensible escape;7
Thirdly, many modern awards which contain a generalised exclusionary
provision also contain a specific exclusionary provision relating to one or more
specified modern awards. Therefore, if the generalised exclusion was sufficient
to resolve coverage, there would be no work to be done by the specific
exclusions;8
Fourthly, the history of the making of modern awards calls into question whether
the words “to the exclusion of any other modern award” were intended to address
issues of overlapping award coverage, because it is apparent from the Award
Modernisation9 decision that the Full Bench intended for the question of
overlapping coverage between awards to be determined by either an express
provision in an award excluding coverage of other particular awards or the
general provision concerning the appropriateness of the award classification and
the environment in which work is performed. No mention of the question of
overlapping award coverage being determined by words to the effect that the
award operates “to the exclusion of any other modern award” is made in the
Award Modernisation decision;10
Fifthly, it was arguable that overlapping coverage is first determined by reference
to specific award exclusionary provisions and next in the absence (or
inapplicability) of such provisions, by reference to the “most appropriate to the
work performed by the employee and to the environment in which the employee
normally performs the work” as expressed in a note or provision of the coverage
clause of an award. Once the question of overlapping coverage is determined in
one of these two ways, the effect of the provision in the award which states that it
operates “to the exclusion of any other modern award” is to ensure there is no
double dipping by an employee.11
[10] Despite the reservations expressed, the Deputy President concluded at [20] of the
Decision that he should not decide the matter by disregarding Spotless and he determined to
apply the decision to determine the outcome of the issue in dispute.
6 [2020] FWC 3689 at [11]
7 [2020] FWC 3689 at [12]
8 [2020] FWC 3689 at [13]-[14]
9 [2008] AIRCFB 1000
10 [2020] FWC 3689 at [15]-[18]
11 [2020] FWC 3689 at [19]
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[11] The Deputy President reasoned at [21] of the Decision that to the extent that there is
any possibility of overlapping coverage by the Vehicle Award and the Black Coal Award, the
words in clause 4.1 of the Vehicle Award resolve this in favour of sole coverage by the
Vehicle Award. By contrast, the coverage provisions in clause 4 of the Black Coal Award
contain no provisions excluding the coverage of the Vehicle Award. Accordingly, if the
appellants fell within the coverage of both the Black Coal Award and the Vehicle Award, the
Vehicle Award prevailed and that is the award that covered and applied to the appellants
during their employment with the respondent.
[12] At [22]-[26] of the Decision, the Deputy President sets out some general principles
about award coverage. At [28]-[42] of the Decision, the Deputy President considered whether
the respondent falls within the coverage of the Vehicle Award and concludes that the
respondent’s “undertaking at the Mine fell within the coverage of clause 4.1(c) of the Vehicle
Award”.
[13] At [43]-[64], [138] and [140]-[146] the Deputy President considered the position of
Ms Groves vis-à-vis award coverage. The analysis and conclusions are not presently relevant.
[14] Next (at [65]-[91] of the Decision) the Deputy President considered whether the
appellants were covered by the Vehicle Award and concludes that each fell within that
award’s classifications and coverage. Thereafter from [92]-[139] of the Decision, the Deputy
President discusses the coverage of the Black Coal Award, concluding that the respondent
was not relevantly engaged in the black coal mining industry during the appellants’
employment at the Mine however each of the appellants were directly connected with the day
to day operation of a black coal mine with the consequence that the appellants fell within the
coverage of the Black Coal Award when they were employed by the respondent.
[15] The Deputy President concluded at [147] of the Decision that roles held by the
appellants fell within the coverage of the Black Coal Award and the Vehicle Award. He
resolved the overlapping coverage (at [149] of the Decision), by applying Spotless and
concluding that by reason of the words “to the exclusion of any other modern award” in
clause 4.1 of the Vehicle Award, that award prevails over the Black Coal Award and so the
appellants were covered by the Vehicle Award during their employment with the respondent.
[16] Finally at [150] of the Decision the Deputy President noted that if he had been
required to determine, in the case of the appellants, which award classification (between the
Vehicle Award and the Black Coal Award) was most appropriate to the work performed by
them and the environment in which they normally performed the work, he would have
selected the classifications in the Black Coal Award. The Deputy President reasoned that
those classifications are, in his view, most appropriate to the nature of the tyre maintenance
service work undertaken by the appellants on vehicles used to produce coal in a black coal
mine and the black coal mining environment in which they worked on a daily basis.
Appeal grounds
[17] The appellants raise three grounds of appeal. The first contends the Deputy President
erred in failing to have regard to clause 4.8 of the Black Coal Award and clause 4.3(b) of the
Vehicle Award, despite determining that the Black Coal Award classifications were most
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appropriate to the work performed by the appellants and the environment in which the
appellants normally performed the work.
[18] The second appeal ground contends the Deputy President erred in finding that clause
4.1 resulted in the Vehicle Award applying to the exclusion of the Black Coal Award by
construing the words “to the exclusion of any other modern award” as operating to mean
clause 4.8 of the Black Coal Award and clause 4.3(b) of the Vehicle Award have no
operation.
[19] The third ground contends the Deputy President erred in ultimately finding that the
appellants were covered by the Vehicle Award and not covered by the Black Coal Award
contrary to a proper construction of the awards.
[20] We consider these grounds below.
Consideration
Grounds 1 and 2
[21] Grounds 1 and 2 of the notice of appeal are concerned with whether the Deputy
President correctly construed the coverage provision of the Vehicle Award and specifically
the effect of the “any other modern award” exclusionary provision in clause 4.1 of that award
having regard to the terms of clause 4.8 of the Black Coal Award and clause 4.3(b) of the
Vehicle Award.
[22] The appellants’ central proposition advanced in support of grounds 1 and 2 is that on
its proper construction the coverage of the Vehicle Award is not resolved simply by recourse
to clause 4.1. They contend that the first part of clause 4.1 of the Vehicle Award has the
purpose of delineating the coverage of the award by reference to employers of employees
engaged in the vehicle industry as defined in clause 4.2. Its purpose, they say, is not to resolve
or otherwise deal with questions of overlapping coverage, or to exclude classes or categories
of employees from coverage. Rather, they contend (and as the Deputy President observed at
[19] of the Decision) that the effect of the “any other modern award” exclusionary provision
in the Vehicle Award is to ensure there is no double dipping by an employee. Moreover, the
appellants contend (as did the Deputy President) that the rationale for including such a
provision in most modern awards is because, unlike the situation with enterprise agreements,
where the Fair Work Act 2009 (Cth) (Act) specifically deals with overlapping coverage
between enterprise agreements and expressly states that “only one enterprise agreement can
apply to an employee at a particular time”, the Act does not address the question of
overlapping coverage of modern awards, nor does it expressly state that only one modern
award can apply to an employee at a particular time.
[23] The appellants also point to the placement of the words “to the exclusion of any other
modern award” in clause 4.1 in contradistinction to their placement in the corresponding
provision of the Cleaning Award which was the subject of the decision in Spotless. They thus
contend, both as a matter of construction and as a basis for distinguishing Spotless, the
placement of the exclusionary words before the words “and where the employer’s
establishment, plant or undertaking is principally connected or concerned with the vehicle
repair, services and retail industry” support their construction. They say that as a matter of
syntax, if the exclusionary words were designed to provide an exclusion of coverage or
application of any other modern award they would, at the very least, be found at the end of
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clause 4.1. The appellants also contend that the decision in Spotless may be distinguished on
another basis, namely the relevant ‘most appropriate classification’ provision (which is
directed to overlapping award coverage of employers) is a substantive term of clause 4 of the
Vehicle Award whereas in Spotless the corresponding provision in the Cleaning Award was
contained “only in a note”.
[24] The appellants say the remainder of clause 4 of the Vehicle Award is also relevant to
its proper construction. Clause 4.3(a) deals with exclusions from coverage and excludes
certain classes of employees from coverage. Clause 4.3(b) deals with where an employee will
be excluded from coverage if they are covered by the Vehicle Award and one or more other
awards by application of the general rule that the award classification most appropriate to the
work performed by the employee and environment in which the work is normally performed
is to be applied to determine coverage. The appellants contend the purpose of clause 4.1 is to
set out the general coverage of the Vehicle Award, while clause 4.3 is intended to restrict or
curtail that coverage and resolve issues of overlapping coverage. They say the subject matter
of clause 4.1 is not the exclusion of classes of employees from coverage from the Vehicle
Award (or any other award), or the resolution of the question of overlapping coverage. That is
the role of clause 4.3.
[25] The appellants also point to clauses 4.4 and 4.5 of the Vehicle Award, which deal with
labour hire and group training providers, as having the purpose of expanding and refining the
coverage of the award. Consequently, the provisions of clause 4 are important in
understanding the phrase “to the exclusion of any other modern award” in clause 4.1 in the
context of the scheme effected by clause 4 to define the coverage of the Vehicle Award. They
say that if the exclusionary phrase were construed as operating to remove from coverage
employees who were covered by awards other than the Vehicle Award, clause 4.3(b) would
be rendered otiose. They argue that this is a most unlikely construction and one premised on
clause 4.3(b) being intended to be a surplus and redundant provision and is a construction
inconsistent with the precept that the Commission must strive to give effect and operation to
every word of a provision and every provision of an award.
[26] The appellants also rely on the other matters canvassed by the Deputy President in
expressing reservations about the correctness of the decision in Spotless, which we earlier
summarised and need not repeat.
[27] The resolution of these appeal grounds turns upon the proper construction of the
coverage provisions of the Vehicle Award in their application during the employment of the
appellants by the respondent at the Mine. No issue is taken by the appellants with the Deputy
President’s conclusion that, in their employment at the Mine, the appellants fell within the
coverage of the Vehicle Award. The issue taken is with the Deputy President’s conclusion
that they were so covered “to the exclusion of any other modern award”.
[28] An award, like other industrial instruments, is to be interpreted according to well
established principles. Not unlike the approach to construing a statute, the construction of an
award or of provisions thereof, begins with a consideration of the ordinary meaning of the
words, read in context, taking account of the evident purpose of the provisions or expressions
being construed. Context may be found in the provisions of the award taken as a whole, or in
their arrangement and place in the award. The statutory framework under which the award is
made or in which it operates may also provide context, as might an antecedent instrument or
instruments from which a particular provision or provisions might have been derived. The
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industrial context in which an award is made and operates is also relevant. Thus, the language
of an award is to be understood in the light of its industrial context and purpose, not in a
vacuum or divorced from industrial realities. But context is not itself an end and a
consideration of the language contained in the text of the award or instrument being
considered remains both the starting point and the end point to the task of construction. A
purposive approach to interpretation is appropriate, not a narrow or pedantic approach.12
[29] In March 2008, following a formal request from the Minister for Employment and
Workplace Relations under Part 10A of the Workplace Relations Act 1996 (Cth) the
Australian Industrial Relations Commission began a process of rationalising over 1500
national and state-based awards with 122 industry or occupational awards. This process was
known as the Award Modernisation process. The terms of modern awards were required to be
consistent with any directions specified in the Minister’s Award Modernisation request.13 An
aspect of the Minister’s request concerned the desirability of “avoiding overlap between
awards” and, in cases of overlap or potential overlap, the inclusion in awards of clear rules to
identify which award applies.14
[30] A “modern award” is defined in s.12 of the Act to mean a modern award made under
Part 2-3 of the Act. A modern award is made by the Commission. Modern awards provide for
terms of employment for employees who are covered, with their employer, by the award, and
to whom the award applies at the relevant time.15 Part 2-3, Division 3, Subdivisions B and C
of the Act set out the terms that may and must be included in a modern award.
[31] A modern award must include coverage terms.16 Coverage terms extend on their face
to numerous employers and their employees, usually by reference to a particular industry or
occupation. Section 45 of the Act is a civil remedy provision and prohibits a person from
contravening a term of a modern award.
[32] A modern award “covers” an employee, employer, organisation or outworker entity if
the award is expressed to cover the employee, employer, organisation or outworker entity.17 A
modern award “applies to” an employee, employer, organisation or outworker entity if the
modern award covers them; is in operation; and no other provision of the Act provides or has
the effect that the modern award does not apply to them.18
[33] A modern award does not impose obligations upon a person, and a person cannot
contravene its terms, unless the award “applies to” the person,19 nor does an award give a
person an entitlement unless the award “applies to” the person.20
12 See WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v
Melbourne Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein
13 Workplace Relations Act 1996, s.576N(2)
14 Consolidated version issued by the Minister for Employment and Workplace Relations on 16 June 2008 at clause 9
15 Fair Work Act 2009, s. 46.
16 Ibid s.143A.
17 Ibid s. 48(1)
18 Ibid s. 47(1)
19 Ibid s.46(1)
20 Ibid s.46(2)
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https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s48.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s143a.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s46.html
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https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/repealed_act/wra1996220/s576n.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/repealed_act/wra1996220/
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s45.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/index.html#p3
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/index.html#p2
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https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/index.html#p2
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/repealed_act/wra1996220/
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[34] Coverage clauses are thus mandated in modern awards and rights and obligations
which flow from a modern award are only engaged in relation to a person, if that person is
covered by the award and it applies to the person at a particular time. Modern award coverage
also plays an important role in identifying a relevant reference instrument against which the
question whether an enterprise agreement passes the better off overall test is assessed.21
[35] Clause 4.1 of the Vehicle Award relevantly provided:
“4.1 This award covers employers throughout Australia of employees engaged in
vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in
this clause, to the exclusion of any other modern award and where the employer’s
establishment, plant or undertaking is principally connected or concerned with:
(a) the selling, distributing, dismantling/wrecking/restoring, recycling, preparing
for sale, storage, repairing, maintaining, towing, servicing, and/or parking of
motor vehicles of all kinds, including caravans, trailers or the like and equipment
or parts or components or accessories thereof including the establishments
concerned for such vehicles and the like;
(b) operations or allied businesses concerned with selling, distributing or
supplying running requirements for vehicles (including motor fuels, gas and oils);
(c) the selling and/or handling and/or retreading and/or storing/distribution and/or
fitting and/or repairing of tyres or the like made of any material;
(d) the repair and servicing of motor vehicles in the establishment of an employer
not falling within clauses 4.1(a), (b) and (c)but who is engaged in the motor
vehicle rental business;
(e) the manufacturing, assembling or repairing of carriages, carts, wagons, trucks,
motor cars, bodies, motorcycles, railway cars, tram cars, side-cars or other
vehicles or parts or components or accessories in wood, metal and/or other
materials;
(f) manufacturing, assembling, fabricating, installing, servicing, maintaining,
reconditioning or repairing of engines or vehicle servicing equipment and
agricultural machinery or implements or the like where such employer
immediately prior to 31 December 2009 was bound by clause 1.5.4(a) of the
Vehicle Industry Award 2000;
(g) any operation concerned with roadside/mobile service; or
(h) driving school instruction.”
[36] The coverage provision first captures “employers” of “employees engaged in vehicle
manufacturing and/or vehicle industry repair, services and retail”. The phrases “employees
engaged in vehicle industry repair, services and retail” and “employees engaged in vehicle
manufacturing” are defined for the purposes of coverage, in clause 4.2 of the Vehicle Award
21 Ibid ss.193(3) and (4)
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by reference to classifications covering employees which are set out in various provisions of
the award.
[37] By clause 4.1, the Vehicle Award operates on employers “of employees engaged in
vehicle manufacturing and/or vehicle industry repair, services and retail” to the exclusion of
any other modern award, not simpliciter, but only “where the employer’s establishment, plant
or undertaking is principally connected or concerned with” one or more of the activities set
out in sub-paragraphs (a) to (h). In other words, clause 4.1 provides for coverage of
employees “engaged in vehicle manufacturing and/or vehicle industry repair, services and
retail” as defined in clause 4.2, who are employed by an employer where that employer’s
establishment, plant or undertaking is principally connected or concerned with one or more of
the activities set out in sub-paragraphs (a) to (h), to the exclusion of any other modern award.
This construction answers the appellants syntactical analysis by reference to the placement of
the exclusionary phrase in clause 4.1.
[38] The Black Coal Award does not contain a general exclusion provision of the kind
found in clause 4.1 of the Vehicle Award but it does contain a “most appropriate
classification” provision (clause 4.8) to resolve 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, in a case where the employer of that employee is
covered by more than one award. The Deputy President found that the appellants were also
black coal mining employees within the meaning of clause 4.1(b) of the Black Coal Award
and so they and the respondent fell within the coverage provisions of that award.
[39] We consider that once the respondent and its employees (the appellants) fall within the
coverage provisions of clause 4.1 of the Vehicle Award, that award covers them to the
exclusion of any other modern award, at least, as in the instant case, where the other modern
award (the Black Coal Award) which might provide coverage does not also contain an
exclusive coverage provision. That the respondent might be otherwise said to be an employer
of employees who are employed in the black coal mining industry does not mean that the
Black Coal Award covers them. This is because it cannot. It is excluded by operation of the
exclusionary provision in clause 4.1 of the Vehicle Award.
[40] Given the unchallenged findings of the Deputy President, with which we agree, that
the respondent and the appellants were covered by the Vehicle Award in relation to the
appellants’ employment at the Mine, the Black Coal Award could not cover them because the
Vehicle Award provided exclusive coverage. In the circumstances there was no work for
clause 4.3(b) of the Vehicle Award or clause 4.8 of the Black Coal Award to do. Not because
the provisions are otiose, but rather because the respondent was not covered by more than one
award in relation to the employment of the appellants. It was covered exclusively by the
Vehicle Award. There is therefore no overlapping coverage with which clause 4.3(b) of the
Vehicle Award or clause 4.8 of the Black Coal Award can engage. The Vehicle Award covers
the respondent and the Black Coal Award does not.
[41] Our construction of the meaning and effect of the general exclusionary provision in
clause 4.1 of the Vehicle Award is consistent with the conclusion of the exclusionary
provision in clause 4.1 of the Cleaning Award which was the subject of the decision in
Spotless, and which we consider to be plainly correct.
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[42] We do not accept that the provisions of clause 4.3(b) of the Vehicle Award or clause
4.8 of the Black Coal Award, on the construction of clause 4.1 of the Vehicle Award we
prefer, would never have work to do. As the Deputy President identified there are numerous
modern awards which contain general exclusionary provisions stating that the award covers
the identified classes of employers and employees “to the exclusion of any other modern
award”. Where two such awards cover an employer, the overlapping coverage cannot sensibly
be resolved by recourse to the general exclusionary provision. In such a case provisions like
clause 4.3(b) of the Vehicle Award or clause 4.8 of the Black Coal Award have work to do in
determining that 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.
[43] Indeed, that was the position in Transport Workers’ Union of Australia v Coles
Supermarkets Australia Pty Ltd22 a judgment of the Full Court of the Federal Court of
Australia, on which the appellants rely. The judgment in Coles Supermarkets concerned an
appeal by the Transport Workers’ Union of Australia (TWU) against a judgment of the
Federal Circuit Court of Australia in which there had been a contest, inter alia, whether the
Road Transport and Distribution Award 2010 (Transport Award) or the General Retail
Industry Award 2010 (Retail Award) covered the employment of certain TWU members and
if the latter covered the employment, did it do so to the exclusion of the Transport Award.
Each award contained a general exclusion that the award covered the identified classes of
employers and employees “to the exclusion of any other modern award”.23 Each award also
contained a “most appropriate classification” provision (clause 4.8 of the Transport Award
and clause 4.7 of the Retail Award).24
[44] The Full Court observed as awards no longer depend on specific employer
respondency, the possibility exists for overlap in award coverage. Modern awards (the
Transport Award and the Retail Award are no exception) therefore contain a “most
appropriate classification” provision.25 Further, the Full Court observed that if both the
Transport Award and the Retail Award cover Coles in relation to the employment, the award
classification which is “most appropriate” to the work of the employees and to the
“environment” in which the work is normally performed will be the award classification
which covers and applies to that work.26
[45] Both awards were found to cover Coles. The generalised provision in each award,
stating that it covered the identified classes of employers and employees to the exclusion of
any other modern award, could not resolve the overlap in coverage. The issue was resolved in
favour of classificational coverage by the Retail Award by recourse to the “most appropriate
classification” provisions.
[46] Thus, although as the Deputy President observed, 105 modern awards contain a
provision to the effect that the award operates “to the exclusion of any other modern award”,
where two such awards cover an employer, there is no circularity, because the employer’s
22 [2014] FCAFC 148
23 The relevant provisions are extracted in the Full Court’s judgment [2014] FCAFC 148 at [16] and [28]
24 The text of relevant provision (which is the same in both awards) is extracted in the Full Court’s judgment [2014] FCAFC
148 at [13]
25 [2014] FCAFC 148 at [13]
26 Ibid at [14]
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2014/148.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2014/148.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2014/148.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2014/148.html
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2014/148.html
[2020] FWCFB 5816
11
employees will be classified by recourse to the “most appropriate classification” provisions of
the competing awards – a term which is found in all modern awards.
[47] We do not accept the contention that if the general exclusion in a modern award was
sufficient to resolve coverage, the provisions in some such awards which also contain specific
exclusionary provisions relating to one or more specified modern awards would be given no
work to do. The Deputy President gives two examples - the Dredging Industry Award 2010
and the Marine Towage Award 2010 - which both contain a general exclusion and exclude
employees covered by the other award. Specific award exclusion clauses have the effect of
excluding the identified persons (employers, employees or both) who are covered by the
identified award from coverage under the general provision. It is the general exclusion
provision which has no work to do in such a case because the specific award exclusion has
already done the work by excluding those covered by that award from coverage by the other
award containing the specific award exclusion. Indeed, the two provisions have the opposite
effect and purpose. The general exclusion provision prevents another award covering those
covered by the principal award to which the general exclusion applies. The specific award
exclusion prevents persons covered by the identified award in the exclusion from being
covered by the principal award in which the specific award exclusion is contained.
[48] Turning to what is said in the Award Modernisation decision about the question of
overlapping coverage between awards being determined by either an express provision in an
award excluding coverage of other particular awards or the general provision concerning the
appropriateness of the award classification and the environment in which work is performed,
this much is accepted. The Award Modernisation decision did not however say that this was
the exclusive basis. The provisions excluding particular awards and the “most appropriate
classification” provisions were said to be “intended to provide a basis for deciding which
award applies”, not the only basis. In any event the words “to the exclusion of any other
modern award” do not address overlapping coverage when it exists. They seek to avoid that
outcome in the first place. They are concerned with excluding coverage by other awards. The
words are “exclusionary” and the earlier part of the coverage provision in which the words
appear are “inclusionary”. As we earlier noted an aspect of the Minister’s request which
underpinned the Award Modernisation decision, concerned the desirability of “avoiding
overlap between awards” and, in cases of overlap or potential overlap, the inclusion in awards
of clear rules to identify which award applies.27 The generalised exclusion and the specific
award exclusion provisions in some modern awards are examples of “avoiding overlap
between awards” while the “most appropriate classification” provision in modern awards is an
example of clear rules to identify which award applies in cases of overlapping coverage.
[49] For these reasons the Deputy President correctly construed clause 4.1 of the Vehicle
Award consistently with the decision in Spotless. Consequently grounds 1 and 2 of the notice
of appeal fail.
Ground 3
[50] Ground 3 must necessarily fail because it is premised on the earlier grounds
succeeding and the Deputy President’s alternative “but for” Spotless analysis being correct.
The Deputy President was, for the reasons already stated, correct in his principal conclusion
27 Consolidated version issued by the Minister for Employment and Workplace Relations on 16 June 2008 at clause 9
[2020] FWCFB 5816
12
that the appellants were covered by the Vehicle Award in their employment with the
respondent at the Mine and that the Black Coal Award did not cover them.
Permission to appeal
[51] We are not persuaded that we should grant permission to appeal either on the public
interest grounds or on discretionary grounds. The issues raised by the appeal were recently
considered in Spotless. For the reasons stated we consider that Spotless correctly decided the
operation and effect of the general exclusion provisions in a modern award vis-à-vis another
modern award without a general exclusion. But even if permission to appeal were to be
granted, we would dismiss the appeal for the reason stated.
Conclusion
[52] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S Crawshaw SC and P Boncardo of counsel on behalf of the appellants
C Murdoch QC on behalf of the respondent
Hearing details:
2020
Melbourne (via video)
23 September 2020
Further written submissions:
Appellant, 30 September 2020
Respondent, 7 October 2020
Printed by authority of the Commonwealth Government Printer
CO AISSION WORK PAIE WORK TI VO TVIS THE FAIR
[2020] FWCFB 5816
13
PR724121
