FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477
Citation: Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 Parties: THE AUSTRALIAN WORKERS' UNION v CLEANEVENT AUSTRALIA PTY LTD File number: NSD 939 of 2015 Judge: FLICK J Date of judgment: 24 December 2015 Catchwords: INDUSTRIAL LAW – coverage of an award – principles of construction – most appropriate award – specific –v– general words Legislation: Fair Work Act2009 (Cth), ss 46, 47, 48, 134 Cases cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10, (2005) 222 CLR 241
Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131
Australian Workers’ Union v Coffey Information Pty Ltd [2013] FWCFB 2894, (2013) 232 IR 266
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Qantas Airways Limited [2001] FCA 547, (2001) 106 IR 307
Award Modernisation – Decision [2009] AIRCFB 345
Award Modernisation – Statement [2009] AIRCFB 450
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813, (2006) 153 IR 426
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532
Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088
Health Services Union v Ballarat Health Services [2011] FCA 1256
Kucks v CSR Ltd (1996) 66 IR 182
Re Request from the Minister for Employment and Workplace Relations [2008] AIRCFB 1000, (2008) 177 IR 364
Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616, (2006) 151 FCR 513
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, (2014) 318 ALR 54
Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472Date of hearing: 21 October 2015 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr M Gibian Solicitor for the Applicant: Mr S Crawford, Senior National Legal Officer for The Australian Workers’ Union Counsel for the Respondent: Mr F Parry QC with Mr A Galbraith Solicitor for the Respondent: Mr J Douglas, General Manager Human Resources for Spotless
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 939 of 2015
BETWEEN: THE AUSTRALIAN WORKERS' UNION
ApplicantAND: CLEANEVENT AUSTRALIA PTY LTD
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
24 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 2 February 2016.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT…
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Details
- Case
- [2015] FCA 1477
- Decision Date
CaseChat Overview and Summary
The Australian Workers' Union brought proceedings against Cleanevent Australia Pty Ltd in the Federal Circuit Court of Australia. The dispute centred on the classification of employees under the appropriate industrial award. Specifically, the issue was whether the employees of Cleanevent, who provided cleaning services at events, were covered by the Cleaning Services Award or the Amusement Award.
The court was tasked with determining which of the two awards was the most appropriate to apply to the employees of Cleanevent. The Cleaning Services Award explicitly includes the provision of cleaning services at events, while the Amusement Award contains more general terms that could potentially apply to cleaning activities. The court considered the specific language in the Cleaning Services Award, noting its explicit inclusion of event cleaning, and the lack of intention from the Fair Work Commission to exclude these employees from this award. The court also highlighted the importance of avoiding overlap and promoting simplicity in the interpretation of awards.
After weighing the arguments, the court concluded that the Cleaning Services Award was the most appropriate award to cover the activities of Cleanevent's employees, despite some of their duties extending beyond mere cleaning services. The court's decision was influenced by the specific language of the Cleaning Services Award and its alignment with the objectives of the Fair Work Act.
The court ordered that the parties should prepare Short Minutes of Orders to reflect these reasons by a specified date, ensuring the appropriate award would be applied to the employees of Cleanevent.
The court was tasked with determining which of the two awards was the most appropriate to apply to the employees of Cleanevent. The Cleaning Services Award explicitly includes the provision of cleaning services at events, while the Amusement Award contains more general terms that could potentially apply to cleaning activities. The court considered the specific language in the Cleaning Services Award, noting its explicit inclusion of event cleaning, and the lack of intention from the Fair Work Commission to exclude these employees from this award. The court also highlighted the importance of avoiding overlap and promoting simplicity in the interpretation of awards.
After weighing the arguments, the court concluded that the Cleaning Services Award was the most appropriate award to cover the activities of Cleanevent's employees, despite some of their duties extending beyond mere cleaning services. The court's decision was influenced by the specific language of the Cleaning Services Award and its alignment with the objectives of the Fair Work Act.
The court ordered that the parties should prepare Short Minutes of Orders to reflect these reasons by a specified date, ensuring the appropriate award would be applied to the employees of Cleanevent.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 2 February 2016.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It thus becomes unnecessary to resolve the latter submission advanced on behalf of Cleanevent, namely that the Amusement Award is the “most appropriate” award to “apply” to or “cover” the relevant employees. Although cl 4.9 and the Note to that clause in the Cleaning Services Award, and also cl 4.6 and the Note to that clause in the Amusement Award, expressly recognise the potential for an employer to be covered by more than one award, the latter submission would also have been rejected because: ·the classification of the relevant employees of Cleanevent, it is considered, fall more specifically – and appropriately – within the terms of the Cleaning Services Award; and·clause 4.3 of the Cleaning Services Award specifically includes within “cleaning services industry” the provision of such services as “event cleaning”. That conclusion, again, is only reinforced when reference is made to:·the absence of any discernible intention on the part of the Commission that employees engaged in cleaning services were not intended to be covered by the Cleaning Services Award but by another award; and ·the fact that the acceptance of the arguments advanced on behalf of Cleanevent would run counter to the objective set forth in s 134(1)(g) of the Fair Work Act and should be rejected to “avoid unnecessary overlap of modern awards”. The argument would also not promote “simplicity” (cf. Excelior Pty Ltd [2013] FCA 638 at [54]) and runs counter to the more specific terms employed in the Cleaning Services Award. The conclusion that the Cleaning Services Award is the “most appropriate” award to cover the activities of the employees of Cleanevent is not diminished by the fact that: ·some of the activities undertaken by those employees extend beyond mere cleaning services, including training in matters of occupational health and safety and training (where appropriate) in handling chemicals; the clearing of tables in any food court areas located at a particular venue; and the wiping down of enclosures for small animals like dogs and cats. The fact that employees engaged to provide essentially cleaning services may also be called upon to perform other services does not have the consequence that the “coverage” expressed in cl 4 the Cleaning Services Award ceases to be the “most appropriate”; or·some classifications within Schedule B to the Amusement Award (e.g., the references to “general cleaning duties” and “specific cleaning duties”) also have potential application to cleaning activities undertaken by employees – indeed, in the absence of such references many of the arguments advanced on behalf of Cleanevent as to that Award being the “most appropriate” would fall away. Determining which award is the “most appropriate” naturally involves an exercise of judgement. In the present case, that balance is resolved in favour of the case advanced by the Union. CONCLUSIONS Relief substantially in the form sought by the Union should be granted.
Ratio Decidendi
Legal Principle Established
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