Veolia Environmental Services (Australia) Pty Ltd
[2019] FWCA 6211
•5 SEPTEMBER 2019
| [2019] FWCA 6211 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Veolia Environmental Services (Australia) Pty Ltd
(AG2018/5338)
VEOLIA COMMERCIAL AVENUE TOWNSVILLE EMPLOYEE AGREEMENT 2018 | |
DEPUTY PRESIDENT LAKE | BRISBANE, 5 SEPTEMBER 2019 |
Application for approval of the Veolia Commercial Avenue Townsville Employee Agreement 2018
Introduction
[1] An application has been made to the Fair Work Commission (the Commission) under s.185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement known as the Veolia Commercial Avenue Townsville Employee Agreement 2018 (the Agreement) by Veolia Environmental Services (Australia) Pty Ltd (the Applicant).
[2] Among other matters (now not being pressed) the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) wished to be heard in relation to the approval of the Agreement. The CFMMEU also wished to be covered by the Agreement if it was approved. The CFMMEU also alleged issues during the bargaining process which it originally submitted made the agreement incapable of approval. The CFMMEU further submitted that the applicable reference instrument for the purposes of the ‘better off overall test’ (BOOT) with respect to the Agreement was the Building and Construction General Onsite Award 2010 (Onsite Award) and not Waste Management Award 2010 (Waste Management Award) as was submitted by the Applicant in its application for approval.
[3] A hearing to determine the standing of the CFMMEU to be heard in relation to the Agreement and whether the CFMMEU was to be covered by the Agreement if it was approved, and to otherwise determine the issues that the CFMMEU alleged made the Agreement incapable of approval was set down for 24 July 2019.
[4] A day before the hearing the parties advised my chambers that the Applicant had consented for the CFMMEU to be heard in relation to the approval of the Agreement and had also agreed that the CFMMEU would be covered by the Agreement if it was approved. A determination on these matters was therefore not required, or indeed any other matter that the CFMMEU raised which allegedly made the Agreement incapable of approval, including any alleged issues in the bargaining process. With the CFMMEU being satisfied that these were not issues with respect to the approval of the Agreement and the Commission being satisfied that these were not issues, the only issue that remained was what the applicable reference instrument for the purposes of the BOOT with respect to the Agreement; the Onsite Award (as submitted by the CFMMEU) or the Waste Management Award (as submitted by the Applicant).
[5] If I am with the Applicant, and consider that the applicable reference instrument with respect to the Agreement is the Waste Management Award, then the Agreement is capable of the approval (subject to the undertakings already provided by the Applicant to the Commission). If I am with the CFMMEU, and consider that the applicable reference instrument with respect to the Agreement is the Onsite Award, the Applicant has asked for a further opportunity to submit undertakings, so that the Commission can be satisfied that the Agreement satisfies the BOOT relevant to Onsite Award. I now turn my attention to the applicable reference instrument with respect to the Agreement.
Applicable reference instrument
[6] The Applicant in their submissions to the Commission succinctly outlines the two-stage process I am required to consider when industry award coverage is in dispute. 1
[7] First, the Commission is required to consider the industry in which an employer is operating in so as to establish whether the employer falls within the industry coverage of a given award. An industry award can only cover employees if the employer of those employees is covered by that award. Second, if the employer is covered by an award, or more than one award, the classifications within the award/s are then compared against the duties performed by the employees of the employer so as to establish what is the applicable reference instrument or award that covers those employees.
Award coverage
[8] Relevantly, with respect to coverage, clause 4 of the Waste Management Award says:
“4. Coverage
4.1 This industry award covers employers throughout Australia in the waste management industry and their employees in the classifications listed in clause 18 – Classifications to the exclusion of any other modern award.
…
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
[9] Clause 3.1 of the Waste Management Award defines “waste management industry” as meaning:
“… the collection, transportation, handling, recycling and disposal of any waste material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed or in any other state or form and including all domestic, trade and industrial waste) and includes the operation of transfer stations, landfill sites, incinerators, recycling depots, yards or terminals, treatment plants, compost facilities, alternative waste treatment facilities and the operation of other facilities of the same kind.”
[10] Conversely, with respect to coverage, clause 4 of the Onsite Award says:
“4. Coverage
4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B – Classification Definitions to the exclusion of any other modern award.
…
4.9 For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.
4.10 For the purposes of clause 4.1:
(a) general building and construction means:
(i) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
(ii) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.10(a)(i); and
(iii) the installation in any building, structure or works of fittings and services;
(b) civil construction means:
(i) the construction, repair, maintenance or demolition of:
• civil and/or mechanical engineering projects;
• power transmission ,light, television, radio, communication, radar, navigation, observation towers or structures;
• power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries;
• silos; and/or
• sports and/or entertainment complexes;
(ii) road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt;
(iii) the prefabrication and installation of geomembranes, geotextiles and appurtenances;
(iv) dredging or sluicing work for or at premises provided for persons mentioned in or in connection with work under clause 4.10(b)(i);
(v) the testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10(b)(i);
(vi) batch plants and precast yards at a construction site in or in connection with work under clause 4.10(b)(i);
(vii) traffic management in or in connection with work under clause 4.10(b)(i);
(viii) construction and/or establishment of landscape gardens in or in connection with work under clause 4.10(b)(i), provided that this award does not apply to the:
• maintenance or horticultural establishment work following practical completion of work as specified under the terms of the construction contract or project; and/or
• laying-out, construction, cultivation or keeping in order of gardens in connection with private houses;
(ix) the industry or calling of either or both catering and cleaning for or at premises provided for persons mentioned in clause 4.10(b)(i);
(x) car parks excepting car park buildings and car parks within the alignment of a building; and
(xi) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits ,and all concrete work and preparation incidental thereto;
… ”
Evidence of the parties
[11] The CFMMEU relied on a witness statement filed by Ben Shephard (Mr Shephard), Operator and CFMMEU delegate, in support of its submissions that the Agreement should not be approved and that the applicable reference instrument was the Onsite Award.
[12] The Applicant relied on witness statements filed by Scott Southwell (Mr Southwell), Manager Regional North Queensland, and Simon Richards (Mr Richards), Operations Manager in support of its submissions that the Agreement should be approved and that the applicable reference instrument was the Waste Management Award.
[13] The preference of both parties was for the Commission to make a decision based on the submissions and material filed without the need for a formal hearing.
[14] Due to the above, the evidence, by consent of the parties, was not put to the scrutiny of cross-examination. I will take as fact what each witness has stated in their witness statements. If there are any relevant disagreements between the witnesses as to the facts, I will note these disagreements in the consideration.
[15] I will only consider the evidence within these statements relevant to the applicable reference instrument in respect of the Agreement.
Evidence of Mr Shephard
[16] Mr Shephard provided the Commission with evidence of the work that the Applicant is engaged in and the type of work that the employees of the Applicant perform.
[17] Specifically, Mr Shephard stated that the:
“main activity [of the Applicant’s employees] is using specialised equipment to perform industrial and environmental cleaning, for example at a mine site where there has been a spill and we are called out to do high-pressure cleaning, excavation and disposal of the waste.” 2
[18] Mr Shephard further stated that:
“[the Applicant’s employees] also do a lot of mine shutdown work as well at locations such as Moranbah, Dysart and Cannington mine, Mt Isa mine, where we might use the equipment to clean out tanks and remove waste, or perform hydro-excavation to dig trenches to re-line cables.
At the port of Townsville, when they load lead, zinc or copper boats out to go overseas, [the Applicant’s employees] would use the equipment to wash and maintain the boats down for quarantine or for seaworthy.
As an Operator, I am employed to operate an array of equipment, in particular mobile plant, trucks and pumps involved in high-pressure water-blasting, sand-blasting and hydro-excavation.
Typically, this is done with the use of vacuum excavator trucks (“vac trucks”), of which there are five large vac trucks and two smaller “4-metre” vac trucks.
The vac trucks are equipped with high-pressure pumps that blast water and sand onto surfaces to dislodge or dig up material that can then be removed through separate vacuum pumps and into the trucks’ tanks for later disposal.
Vac trucks need to be manned by a minimum of three Operators whilst in operation. One Operator is required on the “kill switch” to shut the pump off if there is any de-pressure or a hose burst, another Operator acts as a spotter, and another Operator operates the pump itself. Operators alternate between these roles.
The use of high-pressure water can be highly dangerous because the water is coming out at a very high rate. The blaster pumps are between 550-1000 horsepower. Depending on the job requirements, water is mixed with a small quantity of fine sand so that the pumps can be used as a sandblaster or cold-cutter and is capable of cutting 16mm-thick steel. Sand-blasting is mainly used for stripping paint off steel surfaces (e.g. hand-rails, floorings and tanks) and preparing them for fresh coatings.
Manual labour is usually limited to operating the equipment (e.g. lifting and moving hoses and pumps around). From time to time, we may use scrapers or shovels to clean surfaces or dig, or to set up water lines, but this is very limited because of the machinery we have to perform that kind of work. 3
[19] Mr Shephard also provided evidence on the type of vehicles that operators may be required to use from time to time in performing their roles 4, the tickets held (in terms of equipment and safety)5 and the competencies of each of the operators and other employees of the Applicant.6
Evidence of Mr Southwell
[20] According to Mr Southwell, the main purpose of the works performed by the Applicant is to collect and treat waste and perform industrial cleaning services. 7
[21] Mr Southwell then explicitly stated that “[the Applicant’s] services consist of the following work:
• liquid waste collections using vacuum trucks or liquid tankers;
• greasetrap collections and disposal;
• regulated waste collection and disposal;
• recycling collections and disposal;
• oily water separations;
• sludge waste collection and disposal;
• contaminated soil collections and disposal;
• general waste collections and disposals;
• baling of recyclables;
• waste separation;
• hydro excavation;
• high pressure water blasting;
• industrial cleaning; and
• culvert grass cutting.” 8
[22] Mr Southwell went on to say that:“[t]he activities of [the Applicant’s] employees vary on a day-to-day basis but normally include:
• the collection of general waste;
• the management of recycling;
• treating waste waters;
• greasetrapping;
• managing the treatment of various contaminated waste such as batteries, filters, oily rags and any other regulated waste from customer sites; and
• water blasting.” 9
[23] Mr Southwell further stated generally that:
• the duties of employees vary on each day as the work required varies dependant on the available work; 10 and
• employees are not permanently assigned to one kind of work or another and work across both industrial cleaning and waste collection and treatment services. 11
[24] With respect to ‘the collection of general waste work’, Mr Southwell stated that:
• this includes picking up bins filled with general waste and disposal of [that] waste; 12 and
• approximately half of the Applicant’s employees perform these duties and are commonly required to undertake this work on 2 to 3 days each week for between 2 and 3 hours per day. 13
[25] With respect to ‘the management of recycling work’, Mr Southwell stated that:
• this includes the collection of recycling materials, separation on site, baling of products and transporting the recycling to the relevant facilities 14; and
• approximately 3 of the Applicant’s employees perform these duties and are commonly required to undertake this work on 2 to 3 days each week for between 2 and 3 hours per day. 15
[26] With respect to ‘the treatment of waste waters work’, Mr Southwell stated that:
• this involves the collection and treatment of oily water by transporting the water to the internal plant at the Applicant’s depot which is then refined into a sellable product 16; and
• approximately 10 of the Applicant’s 14 employees are qualified to perform these duties and are on average required to perform this work on approximately 3 days each week for between 4 and 10 hours per day. 17
[27] With respect to ‘the greasetrapping work’, Mr Southwell stated that:
• this involves the collection of grease trap liquid from customer sites through a vacuum truck and that grease liquid is then transported to disposal facilities in Townsville; 18 and
• around 7 of the Applicant’s employees commonly perform this work for 2 to 3 days each month for between 6 to 8 hours on any given day. 19
[28] With respect to ‘the managing the treatment of various contaminated waste work’, Mr Southwell stated that:
• this includes the collection of batteries, filters, oily rags and any other regulated waste from customer sites, the transportation of such waste to the Applicant’s depot, and the separation and sorting of such waste prior to its disposal 20; and
• approximately 4 of the Applicant’s employees perform these duties and are commonly required to undertake this work on 2 each week for between 6 and 3 on any given day. 21
[29] With respect to ‘the industrial cleaning work’, Mr Southwell stated that:
• this primarily involves water pressure blasting of conveyor belts or other site specific equipment, buildings or industrial machinery to remove waste, dirt and dust. 22
• it also involves cleaning tanks by removing sludge from the tanks through the use of high pressure water blasters and vacuum trucks. 23
• road sweeping also forms part of the industrial cleaning services of the Applicant. 24
[30] Mr Southwell also provides better particulars on the Applicant’s employees performing work on mine sites 25; their training competencies26, what vehicles they drive27, and their conducting sand blasting work (which he indicates is only done very rarely).28
[31] Relevantly, with respect to coverage under the Onsite Award, Mr Southwell stated that:
• the Applicant does not do any traffic management, site clearance, earth moving, site restoration or landscaping associated with building and construction work; 29
• the only excavation work that the Applicant does is hydro-excavation, which is a particular service that the Applicant does from time to time and is a small part of the work that the Applicant does; 30
• the Applicant does not undertake on-site work in civil or building and general construction or maintenance of civil and mechanical projects, power houses, refineries or silos, or for that matter of any building or structure; 31
• the Applicant is not engaged in the on-site industry or construction industry. It is engaged in the waste management industry;
• the Applicant does not collect or remove waste from building or construction sites;
• the Applicant from time to time does pressure water blasting but none of this work is undertaken on building sites and is only a small part of the work undertaken by the Applicant.
• to the best of his knowledge, the Applicant has not performed work at solar farms, sugar refineries or power stations, but it had done work on any such sites, it would have been on an odd job basis.
Evidence of Mr Richards
[32] Mr Richards generally provided further and better particulars of the waste management and collection and industrial cleaning work business of the Applicant, and the work performed by the employees of the Applicant. 32
[33] Relevantly, with respect to the CFMMEU’s submissions and evidence, Mr Richards stated that:
• the Applicant does not do any traffic management, site clearance, earth moving, site restoration or landscaping associated with building and construction work. 33
• the only excavation work that the Applicant does is hydro-excavation from time-to-time which involves the use of low pressure, non-destructive water blasting equipment mainly to remove soils and make trenches to make pipes accessible for installation of new electrical or phone cable lines, the relocation of electric lines or the installation of water pipes for main water or fire water. 34
• hydro-excavation is only a small part of what the Applicant does. 35
• by way of example, at the Cannington Mine site, hydro-excavation work requires 2 Operators to perform and is done approximately over four days during a given week. Generally 8 employees will attend the Cannington Mine on a month’s roster and hydro-excavation work is approximately spread equally between those employees who are working on the mine that given month. 36
• other than hydro-excavation work being performed at the Cannington Mine, on average, employees of the Applicant would perform approximately 1 other day of hydro-excavation work a month. 37
• the Applicant does not undertake on-site work in civil or building and general construction or maintenance of civil and mechanical projects, power houses, refineries or silos, or for that matter of any building or structure; 38
• the Applicant is not engaged in the on-site industry or construction industry. It is engaged in the waste management industry; 39
• the Applicant from time to time does pressure water blasting but none of this work is undertaken on building sites and is only a small part of the work undertaken by the Applicant; 40 and
• the Applicant does not collect or remove waste from building or construction sites. 41
[34] Whilst not explicitly stated by Mr Richards, I can determine on the evidence that hydro-excavation work provided would not amount to more than 6 days in any month for the Applicant’s employees.
[35] Mr Richards further clarifies a number of matters that Mr Shephard raises in his evidence about employees of the Applicant working on mine sites, 42 about the work performed at the Townsville Port,43 about sand blasting work done by the Applicant44 and about the vehicles and equipment used by employees of the Applicant.45
Consideration
[36] To simplify a determination in this matter, I intend to focus my attention on the second limb of the process that I outlined in paragraph [7] (with respect to a determination on the applicable reference instrument) without making a finding that the Onsite Award necessarily covers the Applicant and thereby the employees of the Applicant.
[37] If I assume that the Onsite Award could cover the Applicant and its employees, without deciding that it does, the question then becomes: what is the applicable reference instrument based on the duties performed by the employees of the Applicant?
[38] The Applicant rightly submits that the appropriate test to be applied in this instance is the “principle of major and substantial employment.” 46
[39] On the evidence before me, I find that the major and substantial employment of the Applicant’s employees is to perform work in the waste management industry.
[40] While on occasion, the type of work performed by the Applicant’s employees (or the type of vehicles or equipment used by the Applicant’s employees) may touch upon work which may be covered by a classification in the Onsite Award (or the types of vehicles or equipment used (or possibly used) by the Applicant’s employees may be referenced in the Onsite Award in its indicative competencies), particularly work for example such as the hydro-excavation work or the sandblasting work, this type of work, on the evidence, does not form the major and substantial employment of the Applicant’s employees.
[41] On the evidence before me, I have determined that the hydro-excavation work is performed by a given employee of the Applicant on no more than 6 days per month. On the evidence before me, I have determined that sandblasting work is undertaken no more than 14 occasions per year.
[42] I have determined on this basis that the major and substantial employment of the Applicant’s employees is to perform general waste management and industrial cleaning work, consistent with the evidence of Mr Southwell and Mr Roberts.
[43] The Applicant has previously responded to the Commission’s Member Assist Team on 7 February 2019 in a detailed manner about issues relating to its employees using certain vehicles; including crane vehicles, front lift vehicles and forklifts. The Commission’s Member Assist Team expressed concern that the use of these vehicles could be consistent with indicative competencies under the Onsite Award.
[44] I am satisfied with the Applicant’s explanations with respect to the use (or possible use) of these types vehicles, being that they are used overwhelmingly for the purpose of providing services as part of the Applicant’s industrial cleaning, garbage and waste businesses. I also agree with the Applicant’s submissions that the Waste Management Award makes explicit reference to the use of crane vehicles 47 and front lift vehicles,48 and that driving a forklift is part of scope of the waste management function performed by the Applicant’s employees.
[45] I further follow the Applicant’s submissions that the Waste Management Award includes several classifications that would be applicable to employees covered by the Agreement. As the Applicant identifies, for example, Schedule B Level 2 refers to an employee performing “waste treatment and/or handing and/or disposal facility attendant and/or process worker”, which is comparable to the duties of a Level 3 classification employee under the Agreement. Other examples are provided by the Applicant of indicative competencies under the Waste Management Award which align with the Applicant’s employee classifications under the Agreement. 49
Conclusion
[46] The only issue which has prevented the Agreement from being approved was a determination on what the applicable reference instrument is to be applied with respect to the BOOT; the Onsite Award or the Waste Management Award.
[47] Being satisfied with the Applicant’s submissions that it is the Waste Management Award, the Agreement is capable of approval, subject to the undertakings that have been provided by the Applicant to the Commission dated 7 February 2019 which are annexed to the Agreement. I am now satisfied that each of the requirements under ss.186, 187, 188 of the Act as are relevant to this application for approval have now been met.
[48] The Agreement will cover the CFMMEU.
[49] The Agreement is approved in accordance with s.54 of the Act and will operate from 12 September 2019. The nominal expiry date of the Agreement is 5 September 2022.
DEPUTY PRESIDENT
Determined on the papers by consent of the parties.
Printed by authority of the Commonwealth Government Printer
<AE505160 PR712071>
1 Applicant’s Outline of Submissions at [34].
2 Witness Statement of Ben Shephard at [8].
3 Ibid at [8 – 16].
4 Ibid at [17].
5 Ibid at [18 – 20].
6 Ibid at [21, “Attachment 4”].
7 Witness Statement of Scott Southwell at [12].
8 Ibid.
9 Ibid at [13].
10 Ibid at [14].
11 Ibid.
12 Ibid at [15].
13 Ibid.
14 Ibid at [16].
15 Ibid.
16 Ibid at [17].
17 Ibid.
18 Ibid at [18].
19 Ibid.
20 Ibid at [19].
21 Ibid.
22 Ibid at [21].
23 Ibid.
24 Ibid at [22].
25 Ibid at [23 – 27].
26 Ibid at [28 – 29].
27 Ibid at [30 – 32, 34].
28 Ibid at [33].
29 Ibid at [38].
30 Ibid.
31 Ibid
32 Witness Statement of Simon Richards [7 – 34].
33 Ibid at [38].
34 Ibid.
35 Ibid at [39].
36 Ibid.
37 Ibid.
38 Ibid at [41].
39 Ibid at [42].
40 Ibid at [43].
41 Ibid at [45].
42 Ibid at [21].
43 Ibid at [22].
44 Ibid at [22 – 24].
45 Ibid at [28 – 35].
46 Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [361].
47 Waste Management Award 2010 – Classification Level 4.
48 Ibid – Classification Level 6.
49 Such as for example, Waste Management Award 2010 – Classification Level 4 referring to an employee working as a driver of a mechanical road sweeper and this being comparable to the duties of a Level 3 classification employee under the Agreement.
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