[2013] FWCFB 2894 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON |
SYDNEY, 24 MAY 2013 |
Appeal against decision [2012] FWAA 10317 of Commissioner Cargill at Sydney on 13 December 2012 in matter number AG2012/7719 - approval of enterprise agreement - whether appropriate award used for the purpose of the better off overall test - Fair Work Act 2009 - ss. 185, 186, 604.
Introduction
[1] This decision concerns an application by the Australian Workers’ Union (AWU) for permission to appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 of Commissioner Cargill on 13 December 2012 to approve the Coffey Materials Testing Services Agreement 2012-20162 (the Agreement).
[2] The basis for the challenge to the decision is the use of the appropriate award for the application of the “Better Off Overall Test” (BOOT) under s.186(2)(d) of the Act. The Commissioner utilised the Manufacturing and Associated Industries and Occupations Award 2010 3 (the Manufacturing Award). The AWU contends that the applicable award is the Building and Construction General On-site Award 20104 (the On-site Award).
[3] At the hearing of the appeal in Sydney on 3 May 2013, Mr S Crawshaw, SC, with Mr S Crawford appeared on behalf of the AWU, Mr Y Shariff, of counsel with Mr O Fagir appeared on behalf of Coffey Information Pty Ltd (Coffey).
Background
[4] Coffey is a division of the Coffey Group - a global professional services consultancy specialising in the areas of geosciences, project management and international development. Four of its six divisions provide geo-scientific services to various clients. Those divisions are:
• Coffey Geotechnics - provides specialist ground engineering or geotechnical engineering services to mining, oil and gas, infrastructure, commercial/industrial development, residential development and onshore and offshore marine infrastructure;
• Coffey Information - performs independent testing, verification, conformity assessment of construction materials on behalf of mining, oil and gas, infrastructure, commercial/industrial development and residential development clients;
• Coffey Mining - provides consultancy, operational support and other services to the mining and quarrying sectors; and
• Coffey Environments - provides technical and advisory services in respect of environmental, social, health and safety, waste management and energy monitoring services.
[5] The divisions operate under separate legal entities but provide their services in an integrated way. They jointly bid for projects and engage one another’s expertise and share physical facilities. The second of those divisions (Coffey) is the applicant in the proceedings before Commissioner Cargill for the approval of an agreement covering approximately 330 employees engaged in the role of ‘Testing Technician’.
[6] The work covered by the Agreement is primarily geotechnical testing and analysis. It essentially involves employees collecting samples from a site and testing them in a laboratory. The tests range from basic to quite complex. The most basic tests conducted by Coffey technicians are soil testing, field density testing and concrete testing. The laboratories at which this work is performed may be permanent laboratories, known as ‘base labs’ established at Coffey premises in capital cities and regional centres, or temporary laboratories established at a client’s site.
[7] The temporary sites are commonly established on major infrastructure projects where a client is remote from a Coffey base lab or where the volume of work is such that the base lab cannot cope. There has been a shift to greater use of temporary labs in recent years. Mr Kelaher, the major projects manager of Coffey, gave evidence that this is the result of increased infrastructure spending in NSW and flood damage reconstruction and LNG projects in Queensland. As at September 2012 approximately one third of the employees covered by the agreement were based permanently at on-site laboratories. Mr Kelaher said that he considered this change to be cyclical and that as infrastructure spending abates he expected a return to the historical position of a much larger proportion of work being performed from base labs.
[8] Mr Muller, a technician employed by Coffey gave evidence about the duties he performed. They include concrete testing, soil testing and a wide range of testing duties. The tests he carries out include mixer efficiency tests, air tests, slump testing, bleed tests, core drilling, penetrometer tests and quality control tests.
Award Coverage
[9] The central question in the proceedings before the Commissioner and in this appeal is the identification of the applicable award or awards that apply to the employees covered by the Agreement. The Manufacturing Award is a hybrid industry and occupational award. Coffey relies on aspects of its occupational coverage of technical workers. The On-site Award is an industry award covering the building and construction industry. Both awards are confined to employees falling within classifications in the award. The awards contain provisions dealing with the interaction between them. It is necessary to consider the coverage provisions in detail.
[10] Clause 4.1 of the Manufacturing Award states:
“4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.”
[11] The occupations falling within this description in clause 4.9(c) include ‘technical workers’. The definition of the term ‘technical workers’ in clause 3 is as follows:
“technical workers are employees who are or who are mainly engaged:
(d) in the conducting of scientific or engineering work on:
(i) analytical, investigational, developmental, experimental or research work of a technical nature in connection with chemical, biochemical, physical chemical, bacteriological physics, physical testing or metallurgical processes; or
(ii) investigational, developmental, experimental, research or technical control work in manufacturing or pilot plants; or
(e) in assisting in the operations set out in (d)(i) and/or (d)(ii) by:
(i) the preparation or care of apparatus or materials; or
(ii) the recording or tabulating of results; or
(iii) any other means.”
[12] The Manufacturing Award contains a limitation on the application of the occupational parts of its coverage. Clause 4.2(a) provides:
“4.2 The award does not cover:
(a) an employer who is outside the scope of clause 4.9(a) or (b) unless such employer employs an employee covered by clause 4.9(c) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.”
[13] The classifications of employees referred to by Coffey are the C9, C11, C13 and C14 classifications. The definitions of these classifications in the Manufacturing Award is as follows:
“B.3.3 Wage Group: C14
(a) Engineering/Manufacturing Employee—Level I
(i) An Engineering/Manufacturing Employee—Level I is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
(ii) An employee at this level performs routine duties essentially of a manual nature and to the level of their training:
(a) Engineering/Manufacturing Employee—Level II
(i) An Engineering/Manufacturing Employee—Level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level.
(ii) An employee at this level performs work above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training:
B.3.6 Wage Group: C11
(a) Engineering/Manufacturing Employee—Level IV
Laboratory Tester
(i) An Engineering/Manufacturing Employee—Level IV is an employee who has completed an Engineering Production Certificate II or Certificate II in Engineering—Production Technology or equivalent so as to enable the employee to perform work within the scope of this level.
(ii) A Laboratory Tester is an employee who has completed a Certificate II, or equivalent, in Sampling or Measurement so as to enable the employee to perform work within the scope of this level.
(iii) An employee at this level performs work above and beyond the skills of an employee at the C12 level and to the level of their skills, competence and training:
B.3.8 Wage Group: C9
(a) Engineering/Manufacturing Tradesperson—Level II
(i) An Engineering/Manufacturing Tradesperson—Level II is an:
who has completed the minimum training requirements specified in clause B.2.1 of Schedule B or equivalent.
(ii) An Engineering/Manufacturing Tradesperson—Level II works above and beyond a tradesperson at the C10 level and to the level of their skills and competence and training performs work within the scope of this level:
(b) Engineering/Laboratory Technician—Level I
(i) An Engineering/Laboratory Technician—Level I is an employee who has the equivalent level of training of the C9 level Engineering/Manufacturing Tradesperson or equivalent so as to enable the employee to apply skills within the scope of this level. The skills exercised by the Engineering/Laboratory Technician—Level I are in the technical field including draughting, planning or technical tasks, including in a laboratory, requiring technical knowledge.
(ii) At this level the employee is engaged on routine tasks in the technical field. In a laboratory the employee performs basic laboratory duties using written, spoken or diagrammatic instructions and/or basic quality control assurance procedures and techniques under general supervision-either individually or in a team environment.”
[14] The On-site Award coverage clause contains the following terms:
“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.
4.2 Without limiting the generality of the exclusion, this award does not cover employers covered by:
(a) the Manufacturing and Associated Industries and Occupations Award 2010;
...
4.10 For the purposes of clause 4.1:
....
(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);”
[15] The classifications in the On-site Award include:
“B.2.1 Construction worker level 1/Engineering construction worker level 1 (CW/ECW 1)
(a) A CW/ECW 1 works under general supervision in one or more skill streams contained within this award. An employee at CW/ECW 1 (level d) will have:
(i) successfully completed, in accordance with RPL principles, a construction skills test equivalent to the required competency standards; or
(ii) successfully completed a relevant structured training program equivalent to the required competency standards; or
(iii) successfully completed an Engineering Construction Industry Skills Certificate Level 1 consisting of 16 appropriate modules; or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standards
CW/ECW 1 (level a) |
Upon commencement in the industry |
CW/ECW 1 (level b) |
After three months in the industry |
CW/ECW 1 (level c) |
After twelve months in the industry |
CW/ECW 1 (level d) |
Upon fulfilling the substantive requirements of Construction Worker 1/Engineering Construction Worker 1 as detailed above |
(b) An employee at the CW/ECW 1 (level d) performs work above and beyond the skills of an employee at CW/ECW 1 (level c) and to the level of their training and:
(c) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT, and may be required to perform a range of duties across the skill streams contained within this award. An employee at this level:
(d) Indicative tasks which an employee at this level may perform include the following:
(e) The CW/ECW 1 classification incorporates the following broadbanded award classifications:
(f) An employee at this level may be undergoing training so as to qualify as a CW/ECW 1 (level d) or CW/ECW 2. Where possible, an employee at Levels 1 (level a), 1 (level b) and 1 (level c) will be provided with access to accredited structured training approved by the relevant Skills Council.
B.2.2 Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2)
(a) A CW/ECW 2 works under limited supervision in one or more skill streams contained within this award. A CW/ECW 2 will:
(i) have completed in accordance with RPL principles a Construction Skills Test equivalent to the required competency standards; or
(ii) have completed relevant structured training equivalent to the required competency standards; or
(iii) successfully completed an Engineering Construction Industry Certificate Level 2 consisting of a total of 20 appropriate modules, or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standard.
(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT and may be responsible for the supervision of one or more employees working at CW/ECW 1 level.
(iii) An employee at this level:
(c) Indicative tasks which an employee at this level may perform include the following:
(d) The CW/ECW 2 classification incorporates the following broadbanded award classifications:
(e) An employee at this level may be undergoing training so as to qualify as a CW/ECW 3.
B.2.3 Construction worker level 3/Engineering construction worker level 3 (Engineering construction tradesperson level 1) (CW/ECW 3)
(a) A CW/ECW 3 works individually or in a team environment in one or more skill streams contained within this award. A CW/ECW 3 will:
(i) have successfully completed a relevant trade apprenticeship or its AQF equivalent; or
(ii) have successfully completed, in accordance with RPL principles, a Construction Skills Test for this level; or
(iii) have successfully completed the required competency standards; or
(iv) have successfully completed an Engineering Construction Industry Certificate Level 3 consisting of a total of 24 appropriate modules or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or
(v) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standard,
any one of which will qualify the employee as a CW/ECW 3.
(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be responsible for the supervision of one or more employees working at CW/ECW 1 or CW/ECW 2 level.
(iii) An employee at this level:
(c) Indicative tasks which an employee may perform at this level include the following:
(d) The CW/ECW 3 classification incorporates the following broadbanded award classifications:
(e) An employee at this level may be undergoing training so as to qualify as a CW/ECW 4.”
The Decision under Appeal
[16] The Commissioner expressed her conclusions on the question of award coverage as follows:
“[77] I am satisfied on the basis of the evidence of Mr Kelaher that the employees are engaged in various degrees of analytical and investigational work of a technical nature in connection with physical testing. That brings them within the definition of technical workers and consequently within the list of occupations in clause 4.9(c). The classification structure set out in Schedule B to the award includes at C11, Laboratory Tester and at C9 and above, Laboratory Technician.
[78] However, because of clause 4.2 of the Manufacturing Award, it is necessary to also consider whether Coffey is covered by another modern award containing a classification which is more appropriate to the work of the employees. The only other award which has been suggested is the On-Site Award.
[79] Clause 4.1 of the On-Site Award states:
“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.”
[80] Clause 4.2 provides that the award does not cover employers covered by, among others, the Manufacturing Award. Clause 4.8 deals with the situation where an employer is covered by more than one award.
[81] Clause 4.9 defines the industry as:
“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.”
[82] The relevant part of the industry in this matter is said to be civil construction. That is defined in clause 4.10(b) in the following terms:
....
(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)”
[83] The issue is whether or not Coffey is an employer in the on-site building, engineering and civil construction industry. In order to answer this question it is necessary to consider the evidence. As can be seen from the earlier summary there is no real conflict between the evidence of Mr Kelaher on the one hand and the AWU witnesses on the other. The evidence of Mr Callinan and Mr Muller was very helpful however it necessarily reflected only the parts of Coffey’s operations with which they are familiar. Mr Kelaher’s evidence related to the business as a whole.
[84] Coffey does not dispute that a proportion of its employees undertake their duties at construction sites. Mr Kelaher’s evidence is that, in September 2012, approximately one third of relevant employees were based at on-site labs. It is also his evidence that this is a relatively recent phenomenon and is the result of a cyclical rather than structural shift. He expects it to return to its historical position.
[85] It is of note that Mr Kelaher’s evidence is that less than 10% of the tests that Coffey performs are carried out on site. It is also of note that he says that some employees move between base labs and on-site labs on a daily basis.
[86] A consideration of all of the evidence leads me to conclude that Coffey is not an employer in the on-site building, engineering and construction industry. It follows that the On-Site Award does not cover the company. It also follows from that and my conclusions in paragraph 77 above that the Manufacturing Award does cover it. Consequently that is the relevant award for the purposes of the BOOT.”
Grounds of Appeal
[17] The AWU contends in this appeal that the above conclusions are incorrect. The AWU submits that the On-site Award is at least an applicable award for the purposes of the BOOT and the approval of the Agreement was wrongly determined because it failed to apply the BOOT in relation to the On-site Award. Coffey submits that the terms of the awards are intended to avoid overlapping coverage, and once it is determined that the Manufacturing Award applies, these terms establish that the On-site Award does not apply.
[18] As the decision is a mixed question of fact and law, the appeal bench needs to determine whether the conclusion reached by the Commissioner is in error. We will consider whether the Manufacturing Award applies to the employees in question, the interaction between the two awards and whether the On-Site Award applies.
Does the Manufacturing Award apply?
[19] In our view, the geotechnical analysis conducted by the technicians covered by the Agreement involving collecting samples and applying tests in the laboratory is properly described as scientific work and analytical work of a technical nature in connection with physical testing processes. We reject the AWU’s contention that the work cannot be described as scientific work. In our view conducting tests in a laboratory is inherently work of a scientific nature and is within normal conceptions of that term. We also find that the work is analytical and involves physical testing processes. In our view, for these reasons, the work of the Coffey technicians falls within the description of technical workers in the Manufacturing Award.
[20] Further, we are of the view that the classifications in the Manufacturing Award apply to the technicians. The C11 classification clearly applies to Laboratory Testers who have completed a Certificate II in sampling or measurement or the equivalent. The C9 classification applies to laboratory employees who use technical knowledge above the trades level.
[21] For those who have not completed the Certificate II qualification we are of the view that one of the lower classifications, C13 and C14 would apply. The definitions of these classifications are very broad and cover more basic work in an engineering or manufacturing environment, primarily with on the job training. In our view the work of the technicians such as Mr Muller can be so described. We reject the AWU contention that unqualified technicians are not covered by the Manufacturing Award at all. In our view the Manufacturing Award is intended to cover all semi-skilled and unskilled employees covered by the relevant industries and occupations and not leave gaps in coverage as contended for by the AWU.
The Interaction between the Awards
[22] The awards contain interaction rules to govern the situation when more than one award may apply. Clause 4.2(a) of the On-Site Award, set out above, excludes the application of the On-site Award if the employees are covered by the Manufacturing Award. Clause 4.2(a) of the Manufacturing Award excludes the operation of that award if the coverage is based only on the occupational coverage of the award and the employer is covered by another award containing a classification which is more appropriate to the work performed by the employee.
[23] These provisions require a consideration of whether there is a more appropriate classification in the On-site Award, on the assumption that it otherwise applies. In our view the provisions establish a priority in favour of the Manufacturing Award where there is not a more appropriate classification in another applicable award.
[24] We are unable to conclude that the classifications in the On-site Award are more appropriate to the classifications in the Manufacturing Award. The Manufacturing Award contains classifications which specifically cover laboratory work and the work of technical workers. The Manufacturing Award covers such employees on a very wide occupational basis. Less qualified employees are nevertheless covered by general semi-skilled classifications.
[25] The On-site Award applies very widely to employers in the construction industry. The classifications are of a very general nature. They contain no specific mention of laboratory or testing work although the definition of the civil construction industry does. The technicians work on such projects as the company may be contracted to provide its specialist services from time to time. Long term employees will usually perform their work in a base lab or at multiple locations. Most of the work is performed at base labs. In our view a classification structure designed for workers in the construction industry cannot be considered more appropriate than the technical stream in the Manufacturing Award.
[26] It follows that the Manufacturing Award covers the technicians and by virtue of clause 4.2(a) of the On-site Award, the On-site Award does not cover them.
Does the On-site Award apply?
[27] It is strictly unnecessary that we consider the basis that the Commissioner found that the On-site Award did not apply or indeed whether the On-site Award would apply if the interaction provisions did not render it inapplicable. Whether Coffey is an employer in the building and construction industry depends on an analysis of the services it provides, the relationship between those services and the construction activity and the application of the definitions in the On-site Award.
[28] Given the specialist nature of its services and the significant proportion of those services provided at a laboratory location some distance from the construction activities we doubt that the employer’s business can be legitimately described as the construction of civil or mechanical engineering projects. Other aspects of the award coverage provisions are broader. Notwithstanding its primary activities at base laboratories we tend to the view that a part of its business can be described as testing at a construction site or testing in connection with construction work. However the On-site Award does not cover the technicians in any event because of the interaction provisions of the awards.
Conclusions
[29] As the matter involves complex questions as to the coverage of awards for the purposes of the BOOT we grant permission to appeal. However, for the reasons given we dismiss the appeal. We find that the Commissioner correctly determined that the Manufacturing Award was the only relevant award for the purposes of applying the BOOT.
VICE PRESIDENT WATSON
Appearances:
S Crawshaw, SC with S Crawford for the Australian Workers’ Union
Y Shariff, of counsel, with O Fagir for Coffey Information Pty Limited
Hearing details:
2013.
Sydney.
May, 3.
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