Northern SEQ Distributor-Retailer Authority

[2017] FWCA 454

[2017] FWCA 454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Northern SEQ Distributor-Retailer Authority
(AG2016/6710)

UNITYWATER WATER INDUSTRY FIELD/OUTDOOR EMPLOYEES (OPERATIONS AND MAINTENANCE – NON-TRADE) ENTERPRISE AGREEMENT NO. 1

Water, sewerage and drainage services
COMMISSIONER ROE	MELBOURNE, 20 JANUARY 2017

Application for approval of the Unitywater Water Industry Field/Outdoor Employees (operations and maintenance – non-trade) Enterprise Agreement No. 1. Agreement Approved. Dispute as to whether the CFMEU should be noted as covered by the Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Unitywater Water Industry Field/Outdoor Employees (operations and maintenance – non-trade) Enterprise Agreement No. 1 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by Northern SEQ Distributor – Retailer Authority T/A Unitywater.

[2] I made a preliminary assessment of the Agreement and formed the view that the requirements of the Act for its approval had been met, including in respect to the Better Off Overall Test and the National Employment Standards. I am satisfied that the scope of the Agreement has been fairly chosen because the scope is consistent with a scope order issued by Commissioner Booth arising from her Decision 1 on 29 August 2017. This particular Agreement covers the non-trades employees who operate the sewage treatment plants and perform non-trades civil maintenance work.

[3] The CFMEU made submissions at a hearing on 7 December 2016 that the refusal of Unitywater to recognise the CFMEU as a bargaining representative meant that I could not be satisfied that Section 187(2) is met:

“The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.”

[4] It is not in contest that the CFMEU participated in the bargaining for the Agreement. Unitywater submits that this occured despite their position that the CFMEU does not have coverage under its rules for the jobs which fall within the scope of the proposed Agreement.

[5] The CFMEU indicated that they would not press their objection if I was to find that they were covered by the Agreement. I am satisfied that if I find that the CFMEU is not covered by the Agreement then there is no basis to find that Section 187(2) has not been met because Unitywater did not recognise the CFMEU as a bargaining representative. If the CFMEU cannot be covered by the Agreement then they cannot have been a bargaining representative and therefore there is no basis for a complaint about their non-recognition.

[6] The CFMEU also submitted that the Agreement is uncertain because it provides for the implementation of a new classification structure of water industry worker. The CFMEU submit that this creates two obstacles to the approval of the Agreement: firstly, I should conclude that the effect of the Agreement could not have been properly explained to employees and; secondly, the uncertainty means that the Agreement cannot be approved for the reasons dealt with by the Viridian Full Bench. I rejected this submission. The water industry water classification introduction does not make the Agreement uncertain. The Agreement contains very detailed provisions concerning the water industry water classifications and their introduction. Those provisions include safeguards that satisfy me that it is not a provision which provides for variation of the Agreement during its term. The safeguards are sufficient to also ensure that employees classified as water industry workers will be Better Off Overall when compared to the relevant Award.

[7] The AWU have given notice that they wish to be covered by the Agreement and I will note that they are covered.

[8] The CFMEU is seeking to be covered by the Agreement and this is opposed by both the company and the AWU. The CFMEU have provided an F18 to the employer and the Fair Work Commission as required by the Act. I am satisfied that subject to resolving this issue I can approve the Agreement.

[9] The CFMEU have provided a list of its members to the Fair Work Commission and sought that the correspondence containing that list be kept confidential. Unitywater provided me with a confidential list of the employees covered by the Agreement and I compared the two lists. I am satisfied that the CFMEU has 17 members who are covered by the Agreement.

[10] It is accepted by all parties and I am satisfied that the pre-conditions for noting that the CFMEU is covered by the Agreement have been met save for one matter, the disputed question as to whether or not there is a member of the CFMEU whose work position falls within the eligibility rules of the CFMEU. If the answer to this question is yes then I must note that the CFMEU is covered by the Agreement. If the answer is no then I cannot note that the CFMEU is covered by the Agreement. A union must be a bargaining representative to be covered by an Agreement. Section 176(3) provides that the CFMEU “cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”

[11] Unitywater suggested that I make an interim decision approving the Agreement and then determine the coverage question later. Although this has the attraction that it would enable the benefits of the Agreement to flow to the company and to employees I am satisfied that Section 201 does not allow this to occur as it states that: “FWC must note in its decision to approve the agreement that the agreement covers the organisation”. Section 603(3)(b) prevents the Commission from varying or revoking a decision to approve an agreement. This suggests that the decision about coverage and the decision to approve must be made at the same time. The only exception would be where it was to correct an obvious error or to deal with ambiguity or uncertainty.

[12] The object of that part of the Act which deals with the making of enterprise agreements is at Section 171 as follows:

“The objects of this Part are:

(a)  to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b)  to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i)  makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

[13] I take the responsibility to ensure that applications to the Fair Work Commission for approval of enterprise agreements are dealt with without delay seriously. It would be inconsistent with this and with the objective of a simple, flexible and fair framework to allow a disagreement about whether or not the CFMEU should be covered by the Agreement to delay the approval of the Agreement. Unitywater, the AWU and the CFMEU strongly opposed a delay in the approval of the Agreement. There are significant disadvantages and uncertainties for both the company and employees caused by delay. My decision about whether or not the CFMEU is covered by the Agreement has important but limited consequences. Unitywater accepts that the CFMEU is entitled to represent and does legitimately represent some of its employees who are covered by current agreements and will be covered by the proposed trades agreement. In this sense both Unitywater and the other unions have to live with the CFMEU regardless of my decision. My decision is not and cannot be a definitive ruling about the coverage of the CFMEU. It is purely a decision, based upon the limited evidence before me, as to whether or not the CFMEU should be noted as being covered by the Agreement. For these reasons I put the parties on notice that I would seek to make a decision as quickly as possible and that therefore my reasons for decision will necessarily be brief.

[14] Unitywater in its submissions urged me to make findings about the credibility of evidence presented by the CFMEU and its witnesses in the proceedings before Commissioner Booth. For example, they suggest that I should not accept the evidence of Mr Grocott because he did not provide his position description with his statement. I put the parties on notice that I was not prepared to take this course. The case before Commissioner Booth was not about union coverage, it was about the proposed scope of agreements. Commissioner Booth herself pointed this out to the parties on a number of occasions. Commissioner Booth was in the best position to judge the demeanour and credibility of witnesses and consider their evidence in context. In considering the written material from another case in a different context I am not in a position to make such judgements.

[15] I established a process to determine this matter as quickly as possible. The parties relied upon identified parts of the evidence which had been before Commissioner Booth in the scope order application matters. 2 The CFMEU identified the evidence and submissions upon which they relied in written submissions dated 12 December 2016 and Unitywater and the AWU identified the material upon which they relied in written submissions dated 14 December 2016. Written submissions in support of the CFMEU being covered were provided on 19 December 2016 and submissions in opposition to the CFMEU being covered were provided by the AWU and Unitywater on 23 December 2016. Oral submissions were provided at a hearing on 12 January 2017. I have considered the evidence and submissions.

[16] The CFMEU submits that the predominant and substantive function of Mr Grocott is as an excavator driver and that the CFMEU occupational rule 2E (known as the FEDFA eligibility rule) specifically provides for eligibility of excavator drivers. The CFMEU submits that the predominant and substantive function of Mr Carroll is that of pump attendant and that the FEDFA rule specifically provides for eligibility of pump attendants.

[17] The CFMEU also points to its history of coverage of workers at Unitywater and its predecessors and particularly to the fact that the Federated Engine Drivers’ and Firemens’s Association of Queensland, Union of Employees (now CFMEU) was covered by the State registered Unitywater Certified Agreement no. 1 2011. The CFMEU submit that its coverage was with regards to members in non-trades classifications of work which are now covered by the Agreement. However, the coverage is not specified or restricted in this manner in the agreement or its approval decision. The scope of the Agreement is narrower than the scope of the earlier agreement.

[18] Unitywater submit that Mr Grocott is employed as crew member and the purpose of his job is set out in his position description. The position description for crew members explains that they are employed to install, service and maintain Unitywater’s water supply and sewage infrastructure. Operation of plant equipment such as an excavator is only one of the key functions of the role. The position description identifies a wider range of accountabilities which can be allocated according to the employee’s skills and experience. Whilst Mr Grocott is using the excavator other crew members will be engaged in other tasks. Unitywater submit that Mr Grocott exaggerated or overestimated the proportion of his time spent operating an excavator. Over a 12 month period he spent 22% of his time actually driving or operating the excavator.

[19] Unitywater submit that Mr Carroll is employed as Treatment Plant Operator in Charge. Although pumps are utilised in many aspects of the operation of a treatment plant this is part of a more complex process for the treatment of effluent. His position description clearly relates to the operation of sewage treatment plants and does not distinguish one plant or feature of the process. The position description is not a generic one but it is specific to Mr Carroll’s particular job as Treatment Plant Operator in Charge. The accountabilities in the position description were not challenged by Mr Carroll. Mr Carroll has supervisory responsibilities including for operational and maintenance staff and activities. In addition to the pumps the typical plant process can include filters, balance tanks, bioreactors, odour control, clarifiers, disinfection and outfall. Mr Carroll accepted these aspects of the treatment plant and his responsibilities for the overall plant process. Unitywater submit that the primary purpose of Mr Carroll’s job is not that of pump attendant. They submit that his role is much more sophisticated and extensive than that of a pump attendant.

[20] Mr Carroll has worked in sewerage treatment plants since 2000 and was formerly a member of the AWU but joined the CFMEU during the process of the bargaining for the Agreement in late 2015. Given Mr Carroll’s position description is specifically for his role rather than a generic description applying to a number of jobs, I give considerable weight to the position description. Sewage treatment plants may vary but there is significant commonality in the processes and equipment associated with sewage treatment plants. I accept that pumps are a large part of the equipment utilised in sewage treatment plants but the role of pumps in a sewage treatment plant is not analogous to the role of boilers in supplying steam power for various processes. Attending the pumps is part of a broader complex process and is integrated with that broader process of sewage treatment. It cannot be easily separated from that broader complex process. I am satisfied that the primary purpose of Mr Carroll’s job is to be in charge of the sewage treatment plant operations. This is not just another way of describing a pump attendant. It is a role with much greater complexity, diversity and responsibility than that of pump attendant. I am not satisfied that the CFMEU can be covered by the Agreement on the basis of Mr Carroll’s job.

[21] Mr Grocott commenced work as a crane driver with the Redcliffe City Council in 2003. He joined the AWU shortly after. He then became a plant operator and obtained tickets to operate a backhoe, excavator, bobcat and front end loader. From 2006 he became a plant operator for the Water Board of Redcliffe City Council. Redcliffe City Council amalgamated into Moreton Bay Regional Council which was part of the consortium which became Unitywater. Mr Grocott has been classified as a “crew member” since he became an employee of Unitywater. Mr Grocott is attached to the reactive maintenance team. He says that his job is primarily about digging holes with an excavator so that other Unitywater employees can access or install water meters or repair broken pipes. Mr Grocott generally starts work at the Margate Depot. He is required to monitor his Toughbook to identify if there are any reactive jobs for him to perform. The Toughbook identifies the nature of the problem with water infrastructure – eg leak on footpath – and does not specify the equipment required to perform the works. The Margate Depot has one 1.8 tonne excavator. There are no other excavators in the yard.

[22] I accept the evidence of Mr Grocott that:

● When a job comes through which may require excavation it is given to Mr Grocott because he is an experienced excavator.
● He always takes the excavator with him to jobs on a trailer which is towed by the truck because it is common for an excavator to be required.
● When he is not required for a reactive job Mr Grocott works in the Margate Depot performing duties such as dumping spoil. He uses the excavator to dump spoil.
● When he arrives at a reactive job he assesses the excavation requirements.
● Generally when excavation is required Mr Grocott does the excavation work and other workers perform the work to repair the pipe or main. He does not do the pipe repair work although he may assist by handing over equipment and other manual work. Once the repair work is finished Mr Grocott will usually backfill the hole with the excavator.
● There are occasions when other methods are used for excavation such as manual digging with a shovel or use of a vacuum digger. Mr Grocott is not qualified to do vacuum digging.
● When he transferred from being a plant operator with Moreton Bay Regional Council to being a crew member with Unitywater nothing much changed in respect to his work.

[23] A specific licence is not required to operate the 1.8 tonne excavator. Although Mr Dearling said that other crew members could use the excavator there was no evidence that any other crew member in that yard did in fact use the excavator when Mr Grocott was at work. Mr Dearling for Unitywater gave evidence that no single employee is engaged to operate an excavator exclusively or even as their primary duty. 3 He says that he understands from talking to Mr Grocott’s manager that “Mr Grocott tends to work on the jobs that come in that require excavating because he puts his hand up for those jobs and everyone goes along with it.”4

[24] Unitywater produced data, which I accept, that shows that during the 2015-16 financial year the excavator operated by Mr Grocott had its engine running 22% of the working time. The lowest % was in December and the highest % was 27% in August. I am satisfied that only a proportion of Mr Grocott’s time is out responding to jobs, the balance of the time is at the depot. Given the nature of the work a significant amount of time is expended in travelling to and from jobs. When at a job Mr Grocott does not spend all his time operating the excavator. Not every job Mr Grocott attends requires excavation and when the excavator is used there is the time following excavation and prior to backfilling during which repair or other work is undertaken. During that period Mr Grocott may engage in manual labour cleaning up around the main. Mr Grocott does work using the excavator virtually every day.

[25] Mr Grocott gave evidence that he was not qualified to perform all of the responsibilities listed in the crew member position description although other crew members would be. He also gave evidence that he did not perform all of the duties in the position description and that those which he did perform mostly related to the operation of the excavator.

[26] I accept that Mr Grocott was in error in his estimation of the number of jobs involving the excavator he generally performed each day.

[27] Unlike the Position Description for Mr Carroll’s job the Position Description for crew member – civil is highly generic. I am satisfied that it reads and operates more like a classification definition in an award or an agreement. That is, it is a single descriptor for a range of different jobs. Not every crew member is required or able to currently perform all aspects of the position description. There is some differentiation in the work generally required to be performed by particular crew members. Of course a crew member may at some stage in the future be required to alter their work and/or expand their skills and competencies. In my view it is what the employee does in the context of the employer’s organisation of work which is determinative of the primary purpose of their employment. In this case it is has been established over many years that it is Mr Carroll who operates the excavator and that other crew members in the yard do not operate the excavator when Mr Carroll is at work. Excavation is a critical part of the work to repair and maintain water infrastructure.

[28] It is hardly surprising that the operator of an excavator would not spend the majority of their time operating an excavator with its engine running. As with many other jobs there are many incidental and vital requirements to the job such as planning, assessing, reporting, travelling, waiting, and assisting others with necessary tasks to get the job done particularly in the gap between excavation and backfilling.

[29] Occupational union rules and occupational awards frequently operate in this manner. For example, there are many workers who would be covered by the CEPU rules for electricians or the ANMF rules for nurses who don’t spend the majority of their time installing electrical wiring or caring for patients. The FEDFA occupational rule to cover “excavator drivers” is not to be read down by the scope of the CFMEU industry rules.

[30] I am satisfied that Mr Grocott is eligible to be a member of the CFMEU. I am satisfied that the CFMEU can be covered by the Agreement on the basis of Mr Grocott’s job.

[31] I am satisfied that each of the requirements of Sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[32] The AWU and the CFMEU being bargaining representatives for the Agreement, have given notice under Section 183 of the Act that they want the Agreement to cover them. In accordance with Section 201(2) I note that the Agreement covers the organisations.

[33] The Agreement is approved and, in accordance with Section 54 of the Act, will operate from 27 January 2017. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

 1   [2016] FWC 6104.

 2   B2016/597, B2016/599, B2016/602, B2016/612, B2016/616, B2016/617, B2016/619, B2016/622, B2016/623, B2016/655 and B2016/677.

 3   Fourth Statement of Craig Dearling at para 33.

 4   Fifth Statement of Craig Dearling.

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