Transfield Services (Australia) Pty Ltd

[2014] FWC 5368

[2014] FWC 5368

FAIR WORK COMMISSION

DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2014/6044)

Manufacturing and associated industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 8 AUGUST 2014

Application for approval of the Transfield Services Limited (Maintenance Work - Surface Mining Sites & Associated Facilities - Qld) Enterprise Agreement 2014 - 2016.

[1] In a decision issued on 5 August 2014 1, I approved the Transfield Services Limited (Maintenance Work - Surface Mining Sites & Associated Facilities - Qld Enterprise Agreement 2014 - 2016. The Agreement applies to employees of Transfield Services Australia Pty Limited engaged to perform maintenance and/or miscellaneous service work at any surface mining site and associated surface facilities at any mining site located in Queensland where the Company has a contract to perform such work.

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives for the Agreement and have each filed a Form F18 - Statutory declaration of employee organisation in support of application for approval of an enterprise agreement - indicating support for the approval of the Agreement and agreement with the matters contained in the Form F17 statutory declaration made by Transfield in support of its approval. The AMWU and CEPU have also given notice under s.183 of the Fair Work Act 2009 (the Act) that they want to be covered by the Agreement.

[3] On 5 June 2013, correspondence was received from the Construction, Forestry, Mining and Energy Union (CFMEU) indicating that: “We are considering our position with regards to this agreement” and requesting that all documents lodged with the Agreement be provided to the CFMEU. On 11 June 2014, the CFMEU filed a document headed “Outline of Objections on behalf of the CFMEU” asserting that the CFMEU represents a significant number of employees in the black coal industry and seeking to be a party to proceedings in relation to the approval of the Agreement. In making this request, the CFMEU concedes that it was not involved in the negotiations for the Agreement and was not a bargaining representative.

[4] In the alternative, the CFMEU submits that it should be granted leave to fully participate in the proceedings on the basis that it is a person aggrieved in accordance with the decision of the Commission in Australian Postal Corporation v CEPU 2and decisions cited therein. The CFMEU reserved its position in relation to status or standing to make further submissions, in the event of an objection.

[5] The CFMEU also outlined the basis upon which it objected to the approval of the Agreement. Essentially those objections can be categorised as follows:

● The appropriate Award for the purposes of the “better off overall test” (BOOT) is the Black Coal Industry Award 2010 and not the Manufacturing, Associated Industries and Occupations Award 2010;
● Whether various provisions of the Agreement cause the Agreement to fail the BOOT when compared to the provisions of the Black Coal Industry Award 2010; and
● The Agreement does not comply with or reduces standards applicable under State legislation specific to the Coal Industry or the National Employment Standards (NES).

[6] In order to give the CFMEU the opportunity it sought to make out contentions with respect to its status in any proceedings relating to the application for approval of the Agreement, and in light of the previous correspondence purporting to reserve the CFMEU’s right to make further submissions in this regard, the matter was listed for hearing at 9.00 am on 5 August 2014. At 5.57 pm on 4 August 2014, correspondence was received from the CFMEU stating that:

“The CFMEU respectfully notes that it considers it has put before the Commission all material it considers appropriate. As such we rely on the written submissions filed and do not intend to appear at the hearing.

The CFMEU considers that the Commission has available to it the written submissions filed by the CFMEU for the purposes of s.590 of the Fair Work Act 2009.”

[7] Given that the document filed by the CFMEU on 11 June 2014 was headed “Outline of Objections” my Associate corresponded by email with the CFMEU at 8.38 am on 5 August 2014 seeking confirmation that this document constituted the “material” and “written submissions” referred to in the correspondence of 4 August 2014. An email in response was received at 8.43 am from the CFMEU stating: “Yes that is correct”.

[8] The hearing on 5 August 2014 proceeded as scheduled. Transfield was represented by Mr Stephen Smith of the Australian Industry Group. Mr Smith submitted that the CFMEU had no standing to be heard or otherwise be party to proceedings in relation to the approval of the Agreement and that there is no substance to the issues raised by the CFMEU in its outline of objections. Mr Smith also objected to the Commission considering the matters raised by the CFMEU given the failure of the CFMEU to attend the hearing for the purposes of making out the Union’s arguments with respect to standing.

[9] I accept the submissions made by Mr Smith on behalf of Transfield. On its own submission, the CFMEU is not a bargaining representative for the Agreement and has no right pursuant to s.183 to seek to be covered by the Agreement. I do not accept that the CFMEU is not “a person aggrieved” for the purposes of the application for approval of the Agreement. The term “person aggrieved” is found in s.604 of the Act and relates to appeals. As such it has no part in determining the rights of any person to be heard on the approval of an enterprise agreement.

[10] In McDonald’s Australia Pty Limited 3 a Full Bench of the Commission noted that the objects of Part 2-4 of the Act dealing with enterprise agreements, found in s.171, place the primary role for making enterprise agreements on the parties to those agreements and their representatives and that the role of the Commission is to facilitate the making of enterprise agreements.4

[11] I can see no basis for finding that the CFMEU should be party to the present proceedings or that its outline of contentions should be considered. This is particularly so, given the failure of the CFMEU to attend a hearing that was conducted for the purpose of giving that Union the opportunity to make good its assertions about its standing and the terms of the Agreement. To the extent I have considered matters raised by the CFMEU I have done so because they coincided with matters about which I would have sought further information from Transfield, the AMWU and the CEPU. After considering the submissions advanced by Mr Smith, I am satisfied with respect to the following matters.

[12] The Agreement in the present case is made with the AMWU and the CEPU as representatives of the employees covered by the Agreement, and both of those organisations support its approval. The Form F16 Application for approval of enterprise agreement filed by Transfield states that all requirements for approval have been met and I accept on the basis of the material set out in that application that this is the case.

[13] For the purposes of the BOOT the modern award that covers the Transfield and the employees covered by the Agreement is the Manufacturing, Associated Industries and Occupations Award 2010. In this regard the Note in the provisions of the Black Coal Mining Industry Award 2010 in relation to coverage provides that:

“NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.

An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association - No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.”

[14] The relevant decisions cited in the decision in Australian Collieries Staff Association and Queensland Coal Owners Association establish the following principles:

● Whether an employer is engaged in the black coal mining industry for the purposes of clause 4.1 of the Black Coal Mining Industry Award 2010 depends on the substantial character of the industrial enterprise in which the employer and the employee are concerned. 5
● The supply of goods or services to companies in a particular industry is not sufficient to identify that the supplier is in the industry to which the goods and services are supplied. 6
● The fact that an activity is carried out at a coal mine is not the sole determinant of the issue. The difference depends on circumstances, the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment, and is a matter of degree.
● The fact that two industries are carried on at the same place does not abolish the distinction between them. 7
● The relationship of employer and employee must have some connection with the activity of mining of coal. 8

[15] In the present case, Transfield is an engineering company carrying out general work. Transfield is not under the control of a mine owner or a contractor conducting mining operations. Transfield conducts maintenance, project and shutdown work and does not undertaking any mining activity with respect to employees covered by the Agreement. Employees are performing work including mechanical fitting, electrical and rigging and are supervised by Transfield’s supervisory employees. Employees covered by the Agreement are not embedded in or supplementary to the work force of the mines at which they perform work and work different rosters.

[16] The situation is virtually identical to that considered by the High court in The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd where Chief Justice Latham as part of the majority, held that an engineering company carrying out general work which is not under the control of the mine owner or the contractor conducting mining operations is not engaged in coal mining. 9

[17] The work performed by the employees covered by the Agreement is work that is defined in clause 4.9(a)(i) and (iii) of the Manufacturing, Associated Industries and Occupations Award 2010 and employees covered by the Agreement are not performing any of the work excluded by the definition in clause 4.11 of that Award.

[18] The Agreement clearly passes the BOOT with respect to the Manufacturing, Associated Industries and Occupations Award 2010. I also note that many of the provisions of the Agreement such as a 35 hour ordinary working week are identical to those in the Black Coal Industry Mining Industry Award in any event.

[19] In relation to State legislation covering matters such as health and safety in the Coal Mining Industry, the Agreement does not impact in any way on the obligations and rights of Transfield and its employees under any relevant law. Even if it was the case that the Agreement did have such an impact, a Full Bench of the Commission in Armacell Australia Pty Ltd and Others held that sections 186 and 187 of the Act required the Commission to approve an agreement if the specified conditions are met, and that these provisions must be given effect, regardless of the presence in an agreement of a term which is inconsistent with State legislation. 10

[20] In relation to the National Employment Standards, by virtue of sections 55 and 56 of the Act, an enterprise agreement cannot exclude the National Employment Standards and a term which purports to do so, has no effect.

[21] For these reasons, I approved the Agreement and issued a Decision to that effect on 5 August 2014.

DEPUTY PRESIDENT

Appearances:

Mr S. Smith on behalf of Transfield Services (Australia) Pty Ltd.

Ms L. Midson on behalf of the AMWU.

Ms P. Rogers on behalf of the CEPU.

Hearing details:

2014.

Brisbane:

August 5.

 1   [2014] FWCA 5312.

 2   [2009] FWAFB 599.

 3   McDonald’s Australia Pty Limited on behalf of Operators of McDonald’s Outlets re: McDonalds Australia Enterprise Agreement 2009 [2010] FWAFB 4602

 4 Ibid at [13].

 5   The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135

 6   Ibid at 135.

 7   The King v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57.

 8   Australian Collieries Staff Association and Queensland Coal Owners Association No. 20 of 1980, 22 February 1982 and [CR2297]

 9   Ibid at 135.

 10   [2010] FWAFB at [33].

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