The Australian Workers' Union v Veolia Water Network Services Pty Ltd
[2016] FWC 7474
•11 NOVEMBER 2016
| [2016] FWC 7474 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
Veolia Water Network Services Pty Ltd
(C2016/4410)
DEPUTY PRESIDENT GOSTENCNIK | SYDNEY, 11 NOVEMBER 2016 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; whether a site or project agreement; whether work performed falls within scope or coverage of site or project agreement.
Introduction
[1] The Australian Workers’ Union (AWU) and certain of its members employed by Veolia Water Network Services Pty Ltd (Veolia) are covered by the Veolia Water Network Services Pty Ltd (Victoria) Agreement 2013-2016 (Agreement).
[2] The AWU lodged an application on 7 July 2016 pursuant to s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the Dispute, Grievance and Discipline Procedure contained in clause 46 of the Agreement.
[3] The application concerns the operation of clause 12 of the Agreement in respect of work performed by Veolia’s employees on the CityLink Tulla Widening Project (CTW Project).
[4] Veolia is engaged by CPB Contractors (CPB), as one of a number of contractors performing works at the CTW Project. CPB and its employees are covered by the CityLink Tulla Widening Bulla Road to Power Street Greenfields Agreement 2015 1 (CTW Agreement) in respect of work on the CTW Project. The AWU says that the CTW Agreement is an applicable Site or Project agreement for the purposes of clause 12 of the Agreement.2
[5] Clause 12 of the Agreement provides for particular terms of an instrument described as a “current Site or Project agreement” to apply to employees of Veolia if the work to be performed by the “Company” on that site at which the instrument operates falls under the scope of that instrument.
[6] There is no dispute that the Commission’s jurisdiction has been properly invoked and that I am able to determine the dispute by arbitration. The parties have agreed that the dispute is to be resolved by determining the following questions by arbitration:
1. Is there an applicable “Site or Project agreement” at the site of the CTW Project?; and, if so
2. Does the work that is carried out by employees of Veolia fall under the scope of the Site or Project agreement such that clause 12 of the Agreement applies?
[7] The resolution of these questions turns ultimately upon the proper construction of clause 12 of the Agreement, as well as the scope or coverage of the CTW Agreement.
[8] The principles applicable to the proper construction of an enterprise agreement are not in dispute and were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 3
[9] In short compass the AWU submits that the reference to a “Site or Project agreement” in clause 12 is a reference to an enterprise agreement that covers Veolia’s client, or the head contractor, at a site or project where Veolia is performing work and seeks a determination in the affirmative in respect to the questions set out above. 4 The AWU points to the CTW Agreement as the applicable site or project agreement and says the work performed by employees of Veolia at the CTW site “falls under the scope of the CTW Agreement”.
[10] Veolia submits that such an interpretation is not open as there is no reference to the words “enterprise agreement” in clause 12. Veolia submits that if the words “Site or Project agreement” were intended to mean enterprise agreement, then this would have been expressly included. Veolia further submits that the effect of adopting the AWU’s interpretation of clause 12 would be in direct contradiction to clause 5.2 of the Agreement which provides that it applies to the exclusion of any industrial agreements. 5 Veolia also says that the work performed by its employees at the CTW site does not in any event fall within the scope of the CTW Agreement.
[11] I have found it unnecessary to answer the first question, because in my view, assuming the answer to the first question is “yes”, the answer to the second question is no. These are my reasons for that conclusion.
Consideration
Does the work that is carried out by employees of Veolia fall under the scope of the CTW Agreement such that clause 12 of the Agreement applies?
[12] As mentioned above, Clause 12 of the Agreement provides as follows:
“12 SITE AGREEMENTS
Where there is a current Site or Project agreement and the work to be performed by the Company on that site falls under the scope of such site or project agreement, any additional payments or allowances contained in such an agreement will be paid. This Agreement will prevail to the extent of any inconsistency in relation to all other terms and conditions of employment.” 6
[13] In order that clause 12 of the Agreement operates in respect of an identified site or project agreement, the work that is carried out on the site (being the CTW Project) by Veolia (or more accurately stated, by employees of Veolia covered by the Agreement) must “fall under the scope” of the identified site or project agreement.
[14] Clause 5.1 of the CTW Agreement provides that it applies to:
“All Employees hired by the Company that are engaged to perform work on the Project for whom classifications and Base Rates are prescribed by this Agreement.” 7
[15] Appendix A to the CTW Agreement sets out the classifications to which reference is made in clause 5.1. The AWU submits that Appendix A sets out the scope of work that is covered by the CTW Agreement for the purposes of clause 12 of the Agreement. This is plainly correct.
[16] Appendix A provides as follows:
APPENDIX A – CLASSIFICATION STRUCTURE
Construction Worker 0 (CW 0) | Construction Worker 3 (CW 3) |
Labourer (new entrant < 3 months) | Rigger / Dogman, Drainer, Form Setter, Piper Layer, Renderer, Drilling Machine Operator, Small Trenching Machine, Form Worker/ Carpenter |
Construction Worker 1 (CW 1) | Construction Worker 4 (CW 4) |
General Labourer, Asphalt Labourer, Trades Assistant, Formwork Stripper, Concrete Gang Peggie, Demolition Labourer, Concrete Cutter, Chainman, Fencer | Marker / Setter Out, Shaft or Trench Sinker, Drilling machine (over 155mm to 230mm), Winding and Haulage Driver, Concrete Paver |
Construction Worker 2 (CW 2) | Construction Worker 5 (CW 5) |
Concrete Batcher, Scaffolder, Steel fixer, Concrete Finisher, Manhole Builder, Pitcher or Beacher, Spotter, Tack Welder Traffic Controller | Special Class Tradesman, Drilling Machine (over 230mm) |
Plant Operator 1 (PCW 1) | Equivalent Cat Machines |
Roller (0 to 5 tonnes) | CS-323C |
Plant Operator 2 (PCW 2) | Equivalent Cat Machines |
Roller (5 to 10 tonnes) | 431 to 533 |
Trucks (up to 12 tonne payload) | Small Rigid |
Plant Operator 3 (PCW 3) | Equivalent Cat Machines |
Roller (over 10 tonnes) | 563, 583 |
Trucks (12 to 60 tonnes payload) | 769, 773 |
Excavator (up to 16 tonnes) | 301 to 315 |
Skid Steer (single class) | 216 to 248 |
Wheel and Track Loader (up to 100 kw) | 902 to 928 |
Scrapers (up to 300 kw) | 613, 615 |
Winch Driver, Forklift Driver, Mobile Hydraulic Platform Operator | |
Plant Operator 4 (PCW 4) | Equivalent Cat Machines |
Compactors (up to 200 tonnes) | 815 |
Excavators (16 to 25 tonnes) | 317 to 325 |
Backhoe Loader (single class) | 416 to 438 |
Wheel and Track Loader (100 to 200 kw) | 838 to 972 |
Crawler Tractors (up to 100 kw) | D3 to D5 |
Graders (up to 130 kw) | 938 to 972 |
Scrapers (300 to 400 kw) | 627, 631, 637 |
Trucks (60 to 120 tonnes payload) | 775,777 |
Mobile Cranes (up to 15 tonnes) | |
Plant Operator 5 (PCW 5) | Equivalent Cat Machines |
Compactors (200 kw plus) | 825 |
Excavators (25 to 65 tonnes) | 330 to 345 |
Wheel and Track Loaders (200 to 300 tonnes) | 980 |
Crawler Tractors (100 to 200 kw) | D6 to D7 |
Graders (130 kw to general) | 160 |
Scraper (400 kw plus) | 651, 657 |
Trucks (120 to 200 tonne payload) | 785, 789 |
Mobile Cranes (15 to 100 tonnes) | 825 |
Plant Operator 6 (PCW 6) | Equivalent Cat Machines |
Excavator (65 to 115 tonnes) | 365 to 375 |
Wheel and Track Loaders (300 kw plus) | 988 to 994 |
Crawler Tractors (200 kw to 350 kw plus) | D8 to D11 |
Grader (Final Trim), Trucks (200 tonnes plus payload), Mobile Cranes (100 tonnes plus) |
[17] The AWU relies on evidence given by Mr Christopher Reynolds, Operator Level 3, employed by Veolia, that the work performed by Veolia employees is referred to as “hydro excavation” using trucks with a 6000 litre water tank and 6000-8000 litre waste tank. The AWU says that such work falls within the classification structure and therefore, the scope of the CTW Agreement. It also says that each classification from PCW1 to PCW6 covers operators of excavators up to 115 tonnes but in the alternative, such work falls within the classification of PCW3 trucks. 8
[18] On this basis, the AWU submits that the hydro excavation work performed by Veolia employees falls within the scope of the CTW Agreement. It also submits that the jet cleaning work performed on the CTW Project by Veolia employees falls within the PCW2 classification. 9
[19] The AWU concedes that the CCTV work performed by Veolia employees on the CTW Project does not fall within the scope of the CTW Agreement. 10
[20] Veolia disputes the interpretation advanced by the AWU and submits that regard should be had to the first section of clause 5.1 of the CTW Agreement which states that it applies to “all Employees hired by the Company”. Veolia submits that its employees are not hired by CPB and therefore their work does not fall within the scope of the CTW Agreement. 11 This argument, with respect, is circular and must be rejected. If the CTW Agreement is a site or project agreement within the meaning of clause 12 which covers the “work” that is performed by Veolia employees, clause 12 of the Agreement will have the effect of requiring the Respondent to make any additional payments or allowances set out in the CTW Agreement. It matters not that the CTW Agreement applies only to its employees. Clause 12 is engaged by reference to the “work” covered by the CTW Agreement not the employees covered by it. Clause 12 does not rely, for its efficiency, on the CTW Agreement also covering Veolia employees. Rather clause 12 creates an obligation to make payments to Veolia employees if those employees are performing “work” that if carried out by employees of CPB would be covered by the CTW Agreement.
[21] In the alternative, Veolia submits that the work performed by its employees does not fall within the classifications set out in Appendix A of the CTW Agreement. The classifications in Appendix A specify the work carried out by the various levels of operators by reference to the plant that is operated and the plant listed are those that are used for the specific purpose of constructing the road surface. 12
[22] Veolia says that the work performed by its employees is not construction work in relation to the road surface. Veolia’s employees carry out CCTV work, jet cleaning and hydro excavation. 13 Veolia submits that jet cleaning work and hydro excavation work performed by its employees does not fall within the classifications in Appendix A of the CTW Agreement.14
[23] Jet cleaning is the process of cleaning waste or blockages from storm water and drain pipes by using vehicles which spray pressurised water from their inbuilt tank through a hose into the drain pipes until the waste or blockage is cleared. Hydro evacuation is a process of non-destructive excavation which utilises pressurised water to excavate soil and collect it via vacuum. Such work is carried out by Veolia employees when non-destructive excavation work is required in, for example, a trench that contains sensitive cabling which could be damaged if the area was excavated using ordinary, destructive excavation. 15
[24] Veolia submits that the ordinary definition of an “excavator” is a hydraulic machine that excavates earth using a bucket or scoop. I do not accept this submission. An excavator is a power-driven machine for digging, moving or transporting loose gravel, soil or sand. 16 Some of the plant operated by Veolia’s employees at the CTW project comfortably falls within this generic definition. The plant at issue uses pressurised water to turn dry earth into mud and then vacuums it from its location. Veolia also submits that in the construction industry, the ordinary definition of “truck” is a vehicle designed to transport cargo or payload. In contrast, jet cleaning and hydro evacuation vehicles are specialised moveable plant which carry out a specific purpose.17 That submission may or may not be correct, but is of little assistance in determining the proper meaning of each kind of plant described in Appendix A.
[25] The AWU says that both the hydro excavators and the jet cleaning vehicles operated by Veolia employees fit into the plant descriptions set out in Appendix A. With respect, I do not accept this submission for the reasons given below. Veolia also submits that, in line with the references to “truck” and “excavator” in Appendix A of the CTW Agreement are references to specialised plants that are designed to perform particular functions, they are not intended to have a broader application as submitted by the AWU. 18 This submission has merit and seems to me to be consistent with the proper construction of Appendix A of the CTW Agreement.
[26] It seems to me that the Plant Operator classifications in Appendix A operate, not by reference to the work performed but rather by reference to the kind and complexity of the plant that is operated. This stands in contradistinction to the Construction Worker classifications in Appendix A. The more complex the plant, the higher the classification that is assigned to the operator. For each kind of plant identified there is helpfully a brand equivalent shown and described as “Equivalent Cat Machines” in the second column of the table (see above).
[27] In my view, neither the jet cleaning or hydro excavation vehicles operated by Veolia employees at the CTW project are the kind of plant to which Appendix A of the CTW Agreement applies. In my view, the kind of plant to which Appendix A applies is, as described in the “Equivalent Cat Machines” column in Appendix A. These descriptions must be given work to do. The descriptions are not superfluous. Rather the “Equivalent Cat Machine” descriptions operate to limit the otherwise broad description of plant contained in the left hand column.
[28] The reference for example to “Truck (12 to 60 tonnes payload)” and “Excavator (up to 16 tonnes)” in the Plant Operator 3 (PCW 3) classification is not be read in isolation, but rather, it takes its meaning from the “Equivalent Cat machines” column. Thus, a person operating a “Truck (12 to 60 tonnes payload)” is a Plant Operator 3 (PWC 3) if the person operates such a truck which is of the “Equivalent Cat Machine” kind described as 769 or 773. The same analysis applies to the Excavator to which reference is made under the PCW 3 classification. On that analysis, none of the plant operated by the employees of Veolia covered by the Agreement and performing work at the CTW project falls within the plant described in Appendix A of the CTW Agreement.
[29] Based on the classifications in Appendix A of the CTW Agreement which delineates the scope of work covered by the CTW Agreement for the purposes of clause 12 of the Agreement and the work performed by Veolia employees in operating plant at the CTW Project, the work performed by Veolia’s employees does not fall within the scope of the CTW Agreement.
Conclusion
[30] The work performed by the relevant Veolia employees at the CTW Project does not fall within the Plant Operator classifications set out by Appendix A of the CTW Agreement for the reasons given. It does not therefore fall within the scope of the CTW Agreement.
[31] The dispute is resolved by answering each question posed as follows:
- Question 1 – Unnecessary to answer; and
- Question 2 – Assuming the answer to question 1 is “yes” - Answer, No.
[32] No orders are necessary.
DEPUTY PRESIDENT
Appearances:
Mr P. Reilly for the Australian Workers’ Union.
Ms S. Ralph on behalf of Veolia Water Network Services Pty Ltd.
Hearing details:
2016.
Melbourne.
October 17.
1 Applicant’s Outline of Submissions, AWU-9.
2 Applicant’s Outline of Submissions at [30].
3 [2014] FWCFB 7447.
4 Applicant’s Outline of Submissions at [4].
5 Respondent’s Outline of Submissions at [33]-[35].
6 Veolia Water Network Services Pty Ltd (Victoria) Agreement 2013-2016, clause 12.
7 Applicant’s Outline of Submissions at [31]; see also CityLink Tulla Widening Bulla Road to Power Street Greenfields Agreement 2015, clause 5.1.
8 Applicant’s Outline of Submissions at [34]-[36].
9 Applicant’s Outline of Submissions at [37]-[38].
10 Applicant’s Outline of Submissions at [39]; see also Respondent’s Outline of Submissions at [58].
11 Respondent’s Outline of Submissions at [52].
12 Respondent’s Outline of Submissions at [55]-[56].
13 Respondent’s Outline of Submissions at [57]; Exhibit 2 at [22].
14 Respondent’s Outline of Submissions at [59].
15 Respondent’s Outline of Submissions at [60]-[61].
16 See Macquarie Concise Dictionary, Fifth Edition.
17 Respondent’s Outline of Submissions at [62]-[65].
18 Respondent’s Outline of Submissions at [66]; see also Applicant’s Submissions in Reply at [16].
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