Qube Energy Pty Ltd T/A Qube Energy
[2023] FWCA 1878
•30 JUNE 2023
| [2023] FWCA 1878 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Qube Energy Pty Ltd T/A Qube Energy
(AG2023/1430)
QUBE ENERGY PTY LTD BBMT ENTERPRISE AGREEMENT 2023
| Road transport industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 30 JUNE 2023 |
Application for approval of the Qube Energy Pty Ltd BBMT Enterprise Agreement 2023 – intervention by CFMMEU – Applicant and relevant employees covered by the Road Transport and Distribution Award 2020 – whether Applicant and relevant employees also covered by the Stevedoring Industry Award 2020 – CFMMEU contentions as to dual coverage under both awards rejected – application assessed by reference to the Road Transport and Distribution Award 2020 – enterprise agreement approved.
An application has been made for the approval of a proposed enterprise agreement to be known as the Qube Energy Pty Ltd BBMT Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Qube Energy Pty Ltd (Employer). The Agreement is a single enterprise agreement.
The application relies upon coverage under the Road Transport and Distribution Award 2020 (Road Transport Award) for the purposes of the better off overall test (BOOT)[1], and satisfaction as to genuine agreement.[2]
Background
The application was allocated to my Chambers on 24 May 2023. Later that day, correspondence was sent to the Applicant raising various issues with the application.
On 25 May 2023, by reply email, the Applicant provided submissions and undertakings in resolution of the issues that had been raised.
That same day, my Chambers was advised by Member Assist that the Maritime Union of Australia division of the Construction Forestry Maritime Mining and Energy Union (CFMMEU) had made a request to access the digital file in this matter. I approved the request, and a redacted version of the digital file was sent to the CFMMEU later that day. The matter was also listed for Mention/Directions on 30 May 2023.
On 30 May 2023, at the Mention/Directions Hearing, I granted the CFMMEU permission to intervene in the proceedings and issued the following directions:
“[1] By 4.00pm AEST on Wednesday, 7 June 2023, the CFMMEU must file with the Commission and serve upon the Applicant any written submissions, proposed undertakings, evidence or other documents in opposition of the approval of the proposed enterprise agreement.
[2] By 4.00pm AEST on Wednesday, 14 June 2023, the Applicant must file with the Commission and serve upon the CFMMEU any written submissions in reply, proposed alternative undertakings, evidence or other documents.”
On 7 June 2023, the CFMMEU filed its materials as directed.
On 12 June 2023, my Chambers was notified that Corrs Chambers Westgarth had commenced acting for the Applicant. An extension was sought to 21 June 2023 to file the Applicant’s materials. I granted the extension.
On 21 June 2023, the Applicant filed its materials as directed.
Evidence and Submissions
The CFMMEU submits that by reference to clause 5 (Parties bound) and clause 6 (Scope and Operation) of the Agreement, work performed by employees to whom the Agreement will apply falls within the coverage of the Road Transport Award and the Stevedoring Industry Award 2020 (Stevedoring Award). In short, the CFMMEU says that because of this dual award coverage, the Agreement fails to pass the BOOT, and the Agreement has not been genuinely agreed.[3]
The Applicant denies that the Stevedoring Award covers or applies to it, or any of its employees.
In support of the CFMMEU’s contentions as to coverage under the Stevedoring Award, Mr Aarin Moon, CFMMEU Organiser, says that having reviewed the Applicant’s website, and pursuant to his own observations of work performed by the Applicant’s employees at the Barry Beach Marine Terminal (Terminal), he considers that:
a) the Applicant’s website identifies the provision of stevedoring services by the Applicant; and
b) work performed at the Terminal involves the provision of stevedoring services.[4]
I observe that Mr Moon’s witness statement is in large part based upon his own ad hoc observations and opinion. It also contains conclusions absent evidentiary foundation, and relies in part upon second hand hearsay. I consider Mr Moon’s statement to hold only limited probative value in terms of establishing the factual basis upon which the CFMMEU advances its contentions in this matter. Notwithstanding that the Commission is not bound by the rules of evidence and procedure, the principles of natural justice and procedural fairness preclude something that is not evidence to become evidence for the purposes of making critical findings (particularly adverse findings against an opposing party’s case). In other words, rules of evidence and procedure are essentially rules based upon natural justice and procedural fairness. The Commission may not be bound to apply the former, but it is bound to apply the latter.
Mr Matt Colin Walker is the Applicant’s Site Manager at the Terminal. Relevantly, I accept and make findings consistent with the following evidence of Mr Walker:
“9. Qube is a diversified logistics and infrastructure company, with expertise in logistics management. Qube is one of a number of discrete business units that make up Qube Logistics and Infrastructure, which in turn is one of the two operating divisions (the other being Qube Ports and Bulk) that make up Qube Holdings Ltd, Australia’s largest integrated provider of import and export logistics services.
10. Qube has published a ‘capability statement’ which it uses to engage with clients and potential clients. A copy of the capability statement is attached to this statement and marked ACW-1.
11. The capability statement says that Qube provides and coordinates the following specialist services:
a. Supply base functions including stevedoring;
b. Labour hire, equipment supply, inventory control;
c. DAFF Biosecurity/ Customs approved facilities;
d. DAFF Biosecurity approved wash bays;
e. Import into Australian waters for all vessels and barges to operate within Australian law;
f. Full vessel agency functions for port calls for all vessel and barges;
g. International air and sea freight forwarding;
h. Third party service requisitioning;
i. Logistics support;
j. Inventory management;
k. Specialist trade services to support the operations
l. hot works, mechanical; and
m. Local and interstate transport.
12. Depending on a client’s requirements, Qube will provide some or all of the above specialist services, including at locations at or near a port. For example, Qube is currently providing services to Darwin, Melbourne, Portland, Bell Bay, Dampier and Geelong, but the stevedoring services at all of those locations is provided by either Qube Ports Pty Ltd or a third-party provider.
13. The capability statement says that Qube provides the following supply base services:
a. 24/7 supply base and stevedoring services;
b. Shipping and customs agency;
c. Equipment, machinery and accessories to load/ unload trucks and containers, and load and discharge marine vessels;
d. Provision of lifting and rigging equipment;
e. Supply of offshore container hire;
f. Materials management;
g. Management of dangerous goods storage;
h. Supply of external lay down area, materials handling and processing area and casing racks;
i. Supply and management of internal storage, internal materials handling/
processing area and pallet racks;
j. Supply base waste management services; and
k. Provision of office space and furnishings.
…
21. I have caused to be extracted a report showing the time spent undertaking stevedoring services between June 2022 and May 2023 at [the Terminal]. That report shows that the time spent undertaking stevedoring services at [the Terminal] accounts for, on average, 17.11% of the employees’ working hours per month, as follows:
…
22. The remaining 83% of employee man hours are spent undertaking the specialist services identified at paragraph 11, the supply base services identified at paragraph 18, and the transport and delivery services identified at paragraph 19.”[5]
The CFMMEU submissions as to coverage under the Stevedoring Award are essentially limited to the following two paragraphs:
“12. The CFMMEU relies upon the witness statement of Aarin Moon to establish that the work conducted by employees employed by the Applicant in this matter include the loading and unloading of cargo into or from a ship including its transporting and storage at or adjacent to a wharf, such that the Applicant could be said to be engaged in the stevedoring industry within the meaning of the [Stevedoring] Award.
13. Further, the CFMMEU submits that the coverage clauses of the [Stevedoring] Award and the [Road Transport] Award can be read together in a harmonious way such that both could apply to employees employed in the workplace to be covered by the Agreement.”[6]
I concur with and adopt the applicable legal principles set out in the Applicant’s written submissions concerning:
a) modern award coverage;[7] and
b) when an employer and/or an employee is ‘involved in’ a particular industry.[8]
By reference to these legal principles, and the evidence, the Applicant makes the following submissions:
“Does more than one modern award apply?
39. The answer to this question is “no”.
40. The relevant awards deal with their respective coverage as follows:
a. [Stevedoring] Award
4.1 This industry award covers employers throughout Australia in the stevedoring industry and their employees in the classifications listed in Schedule A—Classification Definitions to the exclusion of any other modern award.
b. [Transport] Award
4.1 This industry award covers employers throughout Australia in the road transport and distribution industry and their employees in the classifications listed in Schedule A—Classification Definitions for Distribution Facility Employees and Schedule B—Classification Structure to the exclusion of any other modern award.
41. For the reasons that follow, the Commission can be satisfied that the [Transport] Award applies to Qube’s Agreement.
42. The Stevedoring Award is an industry award covering employers engaged in the stevedoring industry. The ‘stevedoring industry’ is defined under the [Stevedoring] Award as ‘the loading and unloading of cargo into or from a ship including its transporting and storage at or adjacent to a wharf’.
43. Having regard to the applicable principles (see paragraph 34 above), in order to ground a conclusion that Qube is in the stevedoring industry, the Commission must be satisfied that:
a. first, Qube is, as a matter of fact, in the stevedoring industry; and
b. second, that any stevedoring work undertaken by Qube’s employees is ‘substantial’.
44. Qube’s evidence is that while it does perform some work that falls within this definition at [the Terminal], it is not an employer that otherwise operates in the stevedoring industry. As to its national operations, Qube provides specialist services to clients at various locations across Australia, including at various ports, but the stevedoring services at all those locations is provided by either Qube Ports Pty Ltd or a third-party provider. As to its operations at [the Terminal], Qube undertakes shore-based terminal operational services and associated supply base and general port leases, and says that any stevedoring work undertaken by Qube’s employees at [the Terminal] is not substantial.
…
49. The unsigned statement of Mr Moon seeks to establish that because Qube’s employees perform any work that includes the loading and unloading of cargo into or from a ship including its transporting and storage at or adjacent to a wharf, Qube is therefore involved in the Stevedoring Industry. But two issues arise here: first, that Mr Moon’s evidence is not capable of being probative on this issue – there is no evidence he has ever attended [the Terminal] or seen any of the services that Qube undertakes, nor is there any evidence Mr Moon knows what services Qube is obliged to supply at [the Terminal] (beyond reference to the capability statement, and hearsay evidence from known ‘Mariners’ and ‘Officers’); and second, his evidence glosses over the actual test that is applied when determining when a modern award might apply – Mr Moon’s evidence does not establish why those services establish any substantial character.
50. On the contrary, when one has regard to the evidence of Mr Walker, including by reference to the capability statement, it is apparent that the substantial character of Qube’s business is to provide logistics services, and at [the Terminal] specifically, shore-based terminal operational services and associated supply base and general port leases.
51. On three occasions, the Union has sought to secure findings which would substantially broaden the meaning of the ‘stevedoring industry’ as that term is defined in the [Stevedoring] Award. Each of these have been rejected by the Commission.
52. In MUA v Patrick Container Port [2015] FWCFB 2472, there was no suggestion that the employer was engaged in the loading or unloading of cargo into or from a ship. However, there was a question whether the employer may still be covered by the [Stevedoring] Award by virtue of the second limb of the definition: ‘including its transporting and storage at or adjacent to a wharf’.
53. At first instance, the Commissioner noted that the definition of ‘stevedoring industry’ did not contain any express extension to work ancillary to the employer’s principal business. For the [Stevedoring] Award to apply to the Patrick Container Port, the employer had to be engaged in the industry.
54. The Full Bench stated at [[28] and] [29]:
“In our view the Commissioner was correct in concluding that the coverage of the Stevedoring Award is confined to employers involved in the loading and unloading of cargo from a ship. The dictionary definition of a stevedore is a firm or individual engaged in the loading or unloading of a vessel. When making the modern award, the award modernisation Full Bench used identical language in describing its intended coverage. The words that were subsequently added to the definition of the industry were not added in order to expand the scope to a different category of employers. It is clear from a consideration of the circumstances that led to their insertion that the words were not sought to be added for that purpose and were not regarded by the employers or the Commission as having any such effect. Rather they were added to make clear that the coverage extended to other activities of stevedoring employers—the transport and storage at or adjacent to a wharf.
In our view the Commissioner was correct in discerning this intent and correct in adopting an interpretation that limited the coverage of the Stevedoring Award to employers who are engaged in stevedoring operations as such. To suggest that the Stevedoring Award extends to employers who are merely involved in transportation and storage at or adjacent to a wharf would be misapplying the language of the definition and circumventing the intention of the Award Modernisation Full Bench.”
55. This reasoning was upheld by the Full Bench in the Four Yearly Review of Modern Awards [2015] FWCFB 1729, in which the MUA sought to expand the coverage of the Award by broadening the definition of ‘stevedoring industry’. The Full Bench stated at [23]:
“The essential nature of stevedoring is the loading or unloading of cargo from a ship. Dictionary definitions reflect this. It can be expected that an employer in the business of loading and unloading cargo from ships would also be involved in the transportation and storage of cargo at or adjacent to a ship. However a business that engages in the transportation and storage of cargo in the vicinity of a wharf is not involved in the stevedoring industry unless it is involved in the loading and unloading of cargo from ships. The essential nature of its business is the transportation and storage of cargo and the award that will usually cover it is the Road Transport and Distribution Award. I note the recent decision of a Full Bench which adopted the same interpretation of the existing coverage clause in dismissing an appeal against Commissioner Cargill’s decision. In my view, the coverage clause of the Award reflects this interpretation. If it does not, applications can be made to vary the coverage clause to remove the ambiguity.”
56. The Union again sought to expand the coverage of the [Stevedoring] Award in the process of seeking a scope order in MUA v Qube Logistics [2018] FWC 1688. In this process, it sought to separate members performing rail loop driving work at the terminal from the enterprise agreement negotiated for truck drivers. The Commission held, at [61]-[62]:
“Further, the MUA would have understood that the demarcation of industrial Award coverage between the Stevedoring Award and the Transport Award had been clearly determined in the Container Port Case. Where there is an interface between stevedoring work and transport work the Full Bench Decision in the Container Port Case made the demarcation between the Stevedoring Award and the Transport Award very clear when it stated:
“In our view the Commissioner was correct in concluding that the coverage of the Stevedoring Award is confined to employers involved in the loading and unloading of cargo from ship.”
Consequently, the proposition that the Stevedoring Award would apply to a transport company such as Qube must have been realistically assessed by the MUA to have been something that could be generously described as extremely ambitious. The MUA was aware of this position from the outset when it enrolled Qube rail loop drivers as members. The subsequent conduct of the MUA whereby, without first making an application for a scope order, it continued to agitate for the stevedoring conditions against the firm rejections made by Qube, was conduct that has to be considered in the context of the somewhat unrealistic prospects that existed for establishing any separate Stevedoring Award based enterprise agreement covering only rail loop driving work undertaken by employees of a transport and logistics company.”
57. The scope of the [Stevedoring] Award is well settled. The Commission has consistently applied a narrow interpretation to avoid the confusion and disputation associated with an unnecessarily broad approach. The [Stevedoring] Award is confined to employers and employees in (sic) involved in the loading and unloading of cargo from a ship, and on the evidence, there is no logical basis to suggest the substantial character grounds a finding that Qube is involved in the stevedoring industry.
58. Clause 4.2 of the [Transport] Award defines the road transport and distribution industry. The evidence of Mr Matt Walker is that Qube operates in the road transport and distribution industry (Qube’s capability statement, which it publishes to the world at large, outlines the various specialist logistics support services that it provides to clients), and that its employees fall within the classifications listed in the Schedules of the [Transport] Award.
…
61. Qube employs 16 operational employees at [the Terminal]. Those employees are multi-skilled and undertake myriad functions (including, where agreed, at multiple locations) which are more specifically or appropriately identified within the classifications listed in the Schedules of the [Transport] Award. Those skills are needed to ensure Qube can deliver those logistics support services that are outlined in their capability statement. When Qube is required to assist with vessel operations, it does so by utilising the skills possessed by its warehouse team: usually a crane operator, a forklift operator and up to three dogman.
62. Between June 2022 and May 2023, the proportion of time Qube’s employees spent performing what might be described as ‘stevedoring duties’ was, on average, 17.11% of the employees’ working hours per month. As such, any loading or unloading of a ship is ancillary to Qube’s business at [the Terminal] (and entirely insignificant when one has regard to Qube’s business overall).
63. On the evidence, there is no basis to conclude that the principal purpose of the employment of Qube’s employees is stevedoring. Consequently, the better view is that Transport Award applies to the exclusion of the [Stevedoring] Award.”[9]
Consideration and findings
Having regard to the evidence and submissions of the Applicant and the CFMMEU, I make the following findings:
a) The Applicant, and its business operations (at which relevant employees perform their work), considered as a whole, identifies that:
i)the substantial character of the Applicant and its business operations involve the provision of logistical services. On the evidence before me, such logistical services extend to, at the Terminal, operational services and associated supply base and general port leases;[10] and
ii)the Applicant is involved in the road transport industry and is thus covered by the Transport Award.
b) The evidence does not support the CFMMEU’s contention that the Applicant and its business operations (at which relevant employees perform their work), considered as a whole:
i)have a substantive connection to the stevedoring industry; or
ii)otherwise evince a substantial character that is involved in the stevedoring industry (rather, the evidence discloses that the Applicant provides services to some of its clients who are in the stevedoring industry).
c) In view of (a) and (b) above, the Applicant is not an employer that is involved in (as a matter of fact or law) the stevedoring industry.
d) The evidence discloses that the nature of the work performed by relevant employees is multi-skilled and multi-tasked.[11] On the evidence, I find that:
i)the major, substantial or principal aspect of the work performed by relevant employees:
· is not the loading and unloading of cargo into or from a ship including its transporting and storage at or adjacent to a wharf; and
· is concerned with the overall provision of various (including specialist) logistical services and support services to its clients, involving tasks duties and responsibilities that fall within the classifications of the Road Transport Award;
ii)the principal purpose of relevant employees employment with the Applicant, and the work that such employees perform, is to deliver logistical support services, not to undertake stevedoring work; and
iii)any stevedoring duties that are undertaken by relevant employees are not substantial, and are undertaken as part of the overall provision of various logistical and related support services to the Applicant’s clients.
In light of the foregoing findings, I reject the CFMMEU’s contentions that:
a) The Applicant or its relevant employees are covered by the Stevedoring Award.
b) The approval of the Agreement warrants consideration of the Stevedoring Award for the purposes of determining whether the Agreement passes the BOOT, or satisfaction as to whether genuine agreement has been reached.
Undertakings
The Applicant has provided written undertakings dated 25 May 2023.
Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that these undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Road Transport Award), and that the undertakings will not result in substantial changes to the Agreement.
Model Consultation Clause
Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
I am also satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Annexure A
[1] Section 193 of the Fair Work Act 2009 (Act).
[2] Section 188 of the Act.
[3] CFMMEU Submissions, 7 June 2023.
[4] Statement of Aarin Moon, 7 June 2023.
[5] Statement of Mr Matt Colin Walker, 21 June 2023 (table omitted from paragraph [21]).
[6] CFMMEU Submissions, 7 June 2023.
[7] Applicant’s Submissions, 21 June 2023, at [32]-[38].
[8] Ibid, at [45]-[48], and [59]-[60].
[9] Ibid, at [39]-[44], [49]-[58], and [61]-[63] (footnotes omitted).
[10] Ibid.
[11] Ibid.
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