FEDERAL COURT OF AUSTRALIA
BioGiene Pty Limited v Mullan [2022] FCAFC 73
Appeal from: Mullan v Biogiene Pty Ltd [2021] SAET 13 File number: SAD 21 of 2021 Judgment of: CHARLESWORTH, O'CALLAGHAN AND SNADEN JJ Date of judgment: 9 May 2022 Catchwords: INDUSTRIAL LAW – award coverage – appellant employed respondent as cleaner in abattoir under the terms of the Meat Industry Award 2010 (“MIA”) – respondent applied to South Australian Employment Court (“SAEC”) alleging failure by appellant to comply with the Cleaning Services Award 2010 (“CSA”) – SAEC held respondent’s employment covered by the CSA – whether the MIA or the CSA covered the respondent’s employment – whether appellant employer “in the meat industry” – whether MIA or CSA provided classification “most appropriate” to respondent’s employment – appellant not employer “in the meat industry” – “most appropriate” classification contained in the CSA – appeal dismissed Legislation: Fair Work Act 2009 (Cth) Pt 2-3, ss 12, 46, 47, 48, 134, 323, 539, 565
South Australian Employment Tribunal Act 2014 (SA) s 5
Workplace Relations Act 1996 (Cth) s 576C
Fair Work Regulations 2009 (Cth) r 1.05
Cases cited:
Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Kucks v CSR Ltd (1996) 66 IR 182
Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364
Re Request from the Minister for Employment and Workplace Relations [2009] AIRCFB 345
Re Request from the Minister for Employment and Workplace Relations [2009] AIRCFB 450
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449
Division: Fair Work Division Registry: South Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 62 Date of hearing: 1 November 2021 Counsel for the Appellant: Mr A Fernon SC Solicitor for the Appellant: O’Neill McDonald Lawyers Counsel for the Respondent: Mr S Blewett with Mr A Oehme Solicitor for the Respondent: Australasian Meat Industry Employees Union ORDERS
SAD 21 of 2021 BETWEEN: BIOGIENE PTY LIMITED
Appellant
AND: BENJAMIN MULLAN
Respondent
ORDER MADE BY:
CHARLESWORTH, O'CALLAGHAN AND SNADEN JJ
DATE OF ORDER:
9 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH AND SNADEN JJ:
By orders dated 10 February 2021, the South Australian Employment Court (the “SAEC”) awarded the respondent, Mr Mullan, $1,654.00 in wages payable pursuant to the Cleaning Services Award 2010 (the “CSA”). That amount was to be paid by the appellant, BioGiene Pty Ltd (“BioGiene”), by which he was employed as a cleaner at an abattoir in Bordertown, in regional South Australia. BioGiene had sought to resist that outcome on the basis that the CSA had no application to Mr Mullan’s employment. By an amended notice of appeal filed in this…
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- BioGiene Pty Limited v Mullan [2022] FCAFC 73
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CaseChat Overview and Summary
BioGiene Pty Ltd appealed against the decision of the South Australian Employment Court (SAEC) that its employee, Mr Mullan, was entitled to the benefits of the Cleaning Services Award 2010 (CSA) rather than the Meat Industry Award 2010 (MIA). The SAEC had found that Mr Mullan’s employment was covered by the CSA and that BioGiene had failed to pay him what it was obliged to pay him under the CSA. BioGiene contended that Mr Mullan was employed under the MIA and that it had paid him in accordance with the terms of that award. The central question for the SAEC was which award applied to Mr Mullan’s employment. The SAEC decided in Mr Mullan’s favour and the appeal to the Full Court of the Federal Court was dismissed.
The Full Court considered the nature of Mr Mullan’s employment with BioGiene, which was providing cleaning services at a red meat processing facility. The Court noted that BioGiene did not process, manufacture or retail meat products, nor was it licensed to do so. The Court found that the classification of Mr Mullan’s employment under the CSA was more appropriate than under the MIA, as BioGiene was not an employer “in the meat industry” and the CSA provided the classification “most appropriate” to Mr Mullan’s employment. The Court also noted that Mr Mullan’s work involved cleaning to a microbiological level, which was a requirement of the CSA, and that the equipment used for cleaning was provided by BioGiene. The Court held that the SAEC’s decision was correct and dismissed the appeal. The Full Court did not make any orders as to costs.
The Full Court considered the nature of Mr Mullan’s employment with BioGiene, which was providing cleaning services at a red meat processing facility. The Court noted that BioGiene did not process, manufacture or retail meat products, nor was it licensed to do so. The Court found that the classification of Mr Mullan’s employment under the CSA was more appropriate than under the MIA, as BioGiene was not an employer “in the meat industry” and the CSA provided the classification “most appropriate” to Mr Mullan’s employment. The Court also noted that Mr Mullan’s work involved cleaning to a microbiological level, which was a requirement of the CSA, and that the equipment used for cleaning was provided by BioGiene. The Court held that the SAEC’s decision was correct and dismissed the appeal. The Full Court did not make any orders as to costs.
Orders
Orders of the court
1. The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the appeal should be dismissed. There should be no order as to costs.BACKGROUND The SAEC’s orders of 10 February 2021 were made upon its acceptance of an application that was filed on Mr Mullan’s behalf on 27 May 2020. By that application, Mr Mullan charged BioGiene with having failed to comply with the terms of the CSA and, in doing so, having failed to pay him what it was obliged to pay him pursuant to s 323(1) of the Fair Work Act 2009 (Cth) (the “FW Act”). It was common ground between the parties (and remains so now) that the CSA was a “modern award” made pursuant to Pt 2-3 of the FW Act; and that, if it applied to Mr Mullan’s employment, BioGiene had failed to honour its terms. By way of defence to Mr Mullan’s application, BioGiene contended that he was employed under the Meat Industry Award 2010 (the “MIA”), not the CSA. It maintained that it had paid Mr Mullan what that instrument (the MIA) obliged it to pay him; and that no further amounts were owing. It denied that it had contravened s 323(1) of the FW Act. Again, it was (and remains) common ground that the MIA was also a “modern award” for FW Act purposes. The central question confronting the SAEC, then, was which of the two awards applied to Mr Mullan’s employment. By a judgment delivered on 28 January 2021, the SAEC resolved that question in Mr Mullan’s favour: Mullan v Biogiene Pty Ltd [2021] SAET 13 (hereafter, the “Primary Judgment”; Deputy President Lieschke). Following that judgment, the parties liaised and agreed upon the terms of the orders that were made on 10 February. Those orders included an order staying the requirement that BioGiene pay Mr Mullan the agreed sum of $1,654.00 pending the outcome of a then-foreshadowed appeal to this court. A further hearing to determine what, if any, penalty orders might be appropriate was adjourned pending the outcome of that (which is to say, this) appeal. The nature of Mr Mullan’s employment with BioGiene is not materially controversial. It is conveniently summarised in the Primary Judgment (at [3]-[18]):3 The background circumstances are not in dispute. The respondent provides hygiene and sanitisation services in the red meat and poultry processing industries across Australia.4 The respondent does not process, manufacture or retail any red meat or poultry products. It is not licensed by the Commonwealth or the State of South Australia to process, manufacture or retail any meat products.5 The respondent employs its cleaners of poultry processing plants under the terms and conditions of the CSA and not the Poultry Processing Award.6 The respondent has a contractual agreement with the operators of the Bordertown abattoir to provide cleaning services in accordance with the relevant Australian standard for food meat production, AS: 4696:2007. The respondent does not charge the abattoir operator for the work of its employees on an hourly basis. Instead, it generally charges fixed fees for services plus other ad hoc charges.7 The applicant has worked for the respondent for approximately nine years. The applicant has worked as a supervisor of other cleaners for about the last five years. He is one of 16 employees of the respondent engaged in cleaning work at the Bordertown abattoir. The abattoir is a red meat processing facility operated by an independent legal entity.8 All work instructions given to the applicant are provided by the respondent.9 The applicant described the work as "routine and quite simple", and that it only takes a new employee one or two days to learn the process.10 The applicant's work was mostly performed in the boning room. He performed manual cleaning, did some minor dismantling of equipment for cleaning purposes, and used a hose and spray equipment for cleaning surfaces.11 The hose is part of specialised cleaning equipment and pumps installed in the plant by the respondent. The hose can spray either hot pressurised water or cleaning foam with chemicals. The equipment has a range of fixed volume, flow and pressure settings and chemical mixes for different cleaning purposes. The respondent also supplies its employees with handheld equipment such as scouring pads and scrubbing utensils.12Cleaning chemicals used in the work include sanitisers, detergents and acids. These are provided by the operator of the abattoir.13 The respondent requires its employees to work to the Australian Standard for cleaning meat processing facilities. This standard requires cleaning to a microbiological level rather than to just a visual level, with regular testing of cleaned surfaces for residual organisms.14 The respondent has developed a written manual with specific cleaning procedures for about 23 pieces of equipment used by meat workers in the abattoir. The applicant has never seen this manual; it was not used by him to perform the cleaning work.15 The applicant and the other cleaners employed by the respondent perform their duties at night time when the plant is not in operation. No meat processing workers are then on-site. In some other establishments the respondent provides some cleaning services to be performed at the same time as animals are killed and processed.16 The applicant and other cleaners commence at 5 or 6 PM and work a 12 hour shift. Just before the end of the shift they conduct a self-assessment of their cleaning work to ensure it meets required standards. The cleaners then join employees of the abattoir who conduct a pre-operational hygiene inspection to ensure their hygiene standards are met. If there is any issue the respondent's cleaning staff will then rectify it.17 During the meat processing work, i.e. when the respondent's employees are not working on site, cleaning and sanitisation of certain tools and equipment is undertaken by the abattoir workers.18 The applicant is paid as for the MI 3 classification under the MIA. He was also paid an over-award allowance for his additional supervisory duties as the MIA does not provide any additional remuneration for this.STATUTORY FRAMEWORK
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The central question confronting the SAEC, then, was which of the two awards applied to Mr Mullan’s employment. By a judgment delivered on 28 January 2021, the SAEC resolved that question in Mr Mullan’s favour: Mullan v Biogiene Pty Ltd [2021] SAET 13 (hereafter, the “Primary Judgment”; Deputy President Lieschke). Following that judgment, the parties liaised and agreed upon the terms of the orders that were made on 10 February. Those orders included an order staying the requirement that BioGiene pay Mr Mullan the agreed sum of $1,654.00 pending the outcome of a then-foreshadowed appeal to this court. A further hearing to determine what, if any, penalty orders might be appropriate was adjourned pending the outcome of that (which is to say, this) appeal. The nature of Mr Mullan’s employment with BioGiene is not materially controversial. It is conveniently summarised in the Primary Judgment (at [3]-[18]):3 The background circumstances are not in dispute. The respondent provides hygiene and sanitisation services in the red meat and poultry processing industries across Australia.4 The respondent does not process, manufacture or retail any red meat or poultry products. It is not licensed by the Commonwealth or the State of South Australia to process, manufacture or retail any meat products.5 The respondent employs its cleaners of poultry processing plants under the terms and conditions of the CSA and not the Poultry Processing Award.6 The respondent has a contractual agreement with the operators of the Bordertown abattoir to provide cleaning services in accordance with the relevant Australian standard for food meat production, AS: 4696:2007. The respondent does not charge the abattoir operator for the work of its employees on an hourly basis. Instead, it generally charges fixed fees for services plus other ad hoc charges.7 The applicant has worked for the respondent for approximately nine years. The applicant has worked as a supervisor of other cleaners for about the last five years. He is one of 16 employees of the respondent engaged in cleaning work at the Bordertown abattoir. The abattoir is a red meat processing facility operated by an independent legal entity.8 All work instructions given to the applicant are provided by the respondent.9 The applicant described the work as "routine and quite simple", and that it only takes a new employee one or two days to learn the process.10 The applicant's work was mostly performed in the boning room. He performed manual cleaning, did some minor dismantling of equipment for cleaning purposes, and used a hose and spray equipment for cleaning surfaces.11 The hose is part of specialised cleaning equipment and pumps installed in the plant by the respondent. The hose can spray either hot pressurised water or cleaning foam with chemicals. The equipment has a range of fixed volume, flow and pressure settings and chemical mixes for different cleaning purposes. The respondent also supplies its employees with handheld equipment such as scouring pads and scrubbing utensils.12Cleaning chemicals used in the work include sanitisers, detergents and acids. These are provided by the operator of the abattoir.13 The respondent requires its employees to work to the Australian Standard for cleaning meat processing facilities. This standard requires cleaning to a microbiological level rather than to just a visual level, with regular testing of cleaned surfaces for residual organisms.14 The respondent has developed a written manual with specific cleaning procedures for about 23 pieces of equipment used by meat workers in the abattoir. The applicant has never seen this manual; it was not used by him to perform the cleaning work.15 The applicant and the other cleaners employed by the respondent perform their duties at night time when the plant is not in operation. No meat processing workers are then on-site. In some other establishments the respondent provides some cleaning services to be performed at the same time as animals are killed and processed.16 The applicant and other cleaners commence at 5 or 6 PM and work a 12 hour shift. Just before the end of the shift they conduct a self-assessment of their cleaning work to ensure it meets required standards. The cleaners then join employees of the abattoir who conduct a pre-operational hygiene inspection to ensure their hygiene standards are met. If there is any issue the respondent's cleaning staff will then rectify it.17 During the meat processing work, i.e. when the respondent's employees are not working on site, cleaning and sanitisation of certain tools and equipment is undertaken by the abattoir workers.18 The applicant is paid as for the MI 3 classification under the MIA. He was also paid an over-award allowance for his additional supervisory duties as the MIA does not provide any additional remuneration for this.STATUTORY FRAMEWORK
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.