Federal Court of Australia

BioGiene Pty Limited v Mullan [2022] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH AND SNADEN JJ:

1    By orders dated 10 February 2021, the South Australian Employment Court (the “SAEC”) awarded the respondent, Mr Mullan, $1,654.00 in wages payable pursuant to the Cleaning Services Award 2010 (the “CSA”). That amount was to be paid by the appellant, BioGiene Pty Ltd (“BioGiene”), by which he was employed as a cleaner at an abattoir in Bordertown, in regional South Australia. BioGiene had sought to resist that outcome on the basis that the CSA had no application to Mr Mullan’s employment. By an amended notice of appeal filed in this court on 1 November 2021, it maintains that position and seeks to have the SAEC’s orders set aside accordingly.

2    For the reasons that follow, the appeal should be dismissed. There should be no order as to costs.

Background

3    The SAEC’s orders of 10 February 2021 were made upon its acceptance of an application that was filed on Mr Mullan’s behalf on 27 May 2020. By that application, Mr Mullan charged BioGiene with having failed to comply with the terms of the CSA and, in doing so, having failed to pay him what it was obliged to pay him pursuant to s 323(1) of the Fair Work Act 2009 (Cth) (the “FW Act”). It was common ground between the parties (and remains so now) that the CSA was a “modern award” made pursuant to Pt 2-3 of the FW Act; and that, if it applied to Mr Mullan’s employment, BioGiene had failed to honour its terms.

4    By way of defence to Mr Mullan’s application, BioGiene contended that he was employed under the Meat Industry Award 2010 (the “MIA”), not the CSA. It maintained that it had paid Mr Mullan what that instrument (the MIA) obliged it to pay him; and that no further amounts were owing. It denied that it had contravened s 323(1) of the FW Act. Again, it was (and remains) common ground that the MIA was also a “modern award” for FW Act purposes.

5    The central question confronting the SAEC, then, was which of the two awards applied to Mr Mullan’s employment. By a judgment delivered on 28 January 2021, the SAEC resolved that question in Mr Mullan’s favour: Mullan v Biogiene Pty Ltd [2021] SAET 13 (hereafter, the “Primary Judgment”; Deputy President Lieschke). Following that judgment, the parties liaised and agreed upon the terms of the orders that were made on 10 February. Those orders included an order staying the requirement that BioGiene pay Mr Mullan the agreed sum of $1,654.00 pending the outcome of a then-foreshadowed appeal to this court. A further hearing to determine what, if any, penalty orders might be appropriate was adjourned pending the outcome of that (which is to say, this) appeal.

6    The nature of Mr Mullan’s employment with BioGiene is not materially controversial. It is conveniently summarised in the Primary Judgment (at [3]-[18]):

3     The background circumstances are not in dispute. The respondent provides hygiene and sanitisation services in the red meat and poultry processing industries across Australia.

4     The respondent does not process, manufacture or retail any red meat or poultry products. It is not licensed by the Commonwealth or the State of South Australia to process, manufacture or retail any meat products.

5     The respondent employs its cleaners of poultry processing plants under the terms and conditions of the CSA and not the Poultry Processing Award.

6     The respondent has a contractual agreement with the operators of the Bordertown abattoir to provide cleaning services in accordance with the relevant Australian standard for food meat production, AS: 4696:2007. The respondent does not charge the abattoir operator for the work of its employees on an hourly basis. Instead, it generally charges fixed fees for services plus other ad hoc charges.

7     The applicant has worked for the respondent for approximately nine years. The applicant has worked as a supervisor of other cleaners for about the last five years. He is one of 16 employees of the respondent engaged in cleaning work at the Bordertown abattoir. The abattoir is a red meat processing facility operated by an independent legal entity.

8     All work instructions given to the applicant are provided by the respondent.

9     The applicant described the work as "routine and quite simple", and that it only takes a new employee one or two days to learn the process.

10     The applicant's work was mostly performed in the boning room. He performed manual cleaning, did some minor dismantling of equipment for cleaning purposes, and used a hose and spray equipment for cleaning surfaces.

11     The hose is part of specialised cleaning equipment and pumps installed in the plant by the respondent. The hose can spray either hot pressurised water or cleaning foam with chemicals. The equipment has a range of fixed volume, flow and pressure settings and chemical mixes for different cleaning purposes. The respondent also supplies its employees with handheld equipment such as scouring pads and scrubbing utensils.

12    Cleaning chemicals used in the work include sanitisers, detergents and acids. These are provided by the operator of the abattoir.

13     The respondent requires its employees to work to the Australian Standard for cleaning meat processing facilities. This standard requires cleaning to a microbiological level rather than to just a visual level, with regular testing of cleaned surfaces for residual organisms.

14     The respondent has developed a written manual with specific cleaning procedures for about 23 pieces of equipment used by meat workers in the abattoir. The applicant has never seen this manual; it was not used by him to perform the cleaning work.

15     The applicant and the other cleaners employed by the respondent perform their duties at night time when the plant is not in operation. No meat processing workers are then on-site. In some other establishments the respondent provides some cleaning services to be performed at the same time as animals are killed and processed.

16     The applicant and other cleaners commence at 5 or 6 PM and work a 12 hour shift. Just before the end of the shift they conduct a self-assessment of their cleaning work to ensure it meets required standards. The cleaners then join employees of the abattoir who conduct a pre-operational hygiene inspection to ensure their hygiene standards are met. If there is any issue the respondent's cleaning staff will then rectify it.

17     During the meat processing work, i.e. when the respondent's employees are not working on site, cleaning and sanitisation of certain tools and equipment is undertaken by the abattoir workers.

18     The applicant is paid as for the MI 3 classification under the MIA. He was also paid an over-award allowance for his additional supervisory duties as the MIA does not provide any additional remuneration for this.

Statutory framework

7    Section 323(1) of the FW Act provides as follows:

323    Method and frequency of payment

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

    …

8    Section 323(1) is a “civil remedy provision”: FW Act, s 539(1). Alleged contraventions of it are actionable within “eligible State or Territory court[s]”: FW Act, s 539(2). The SAEC is such a court: FW Act, s 12; Fair Work Regulations 2009 (Cth), r 1.05. This court has jurisdiction to hear appeals from judgments given in such actions: FW Act, s 565(1).

9    As has already been noted, it was not controversial that each of the CSA and the MIA are and were “modern awards” established under Pt 2-3 of the FW Act. Section 134 of the FW Act is entitled “the modern awards objective”. Amongst other things, it requires the Fair Work Commission to ensure, when exercising functions or powers under Pt 2-3, that “…modern awards, together with the National Employment Standards [provided elsewhere in the FW Act], provide a fair and relevant minimum safety net of terms and conditions…” That objective is to be achieved by taking account of, amongst other things, “the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards”: FW Act, s 134(1)(g).

10    Sections 46 to 48 of the FW Act identify the circumstances in which a modern award is taken to regulate a particular employment situation. Those provisions relevantly provide as follows:

46     The significance of a modern award applying to a person

(1)     A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2)     A modern award does not give a person an entitlement unless the award applies to the person.

47     When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1)     A modern award applies to an employee, employer, organisation or outworker entity if:

(a)     the modern award covers the employee, employer, organisation or outworker entity; and

(b)     the modern award is in operation; and

(c)     no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

…

(3)     A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

48     When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1)     A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

…

Modern awards cover employees in relation to particular employment

(5)     A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

11    It was not suggested (either before the SAEC or this court on appeal) that any “other provision” provided as s 47(1)(c) of the FW Act contemplates, and it was (and remains) accepted as between the parties that each of the CSA and the MIA was in operation throughout the period of present relevance. The central question before the SAEC—and before this court on appeal—turns, then, upon whether either or both of the CSA and the MIA, by their terms, covered Mr Mullan’s employment with BioGiene.

12    At the relevant times, cl 4 of the MIA provided as follows:

Coverage

4.1     This industry award covers employers throughout Australia in the meat industry and their employees in the classifications listed in Schedule A-Classification Definitions to the exclusion of any other modem award.

 4.2     The meat industry includes:

(a)     meat manufacturing establishments - an establishment wholly or predominantly concerned with the manufacturing or processing of fresh meat into any form of edible manufactured or processed meat, meat products, smallgoods, ham, bacon, or similar products in which meat is a substantial ingredient, including any related activities such as retail and/or wholesale sales, and killing, dressing, boning, slicing, preparation and/or packing of fresh meat, where such activities are conducted at any place as an ancillary part of the manufacturing or processing business;

(b)     meat processing establishments - an establishment wholly or predominantly concerned with any one or more of the activities of killing, dressing, boning, slicing, preparation, and/or packing of fresh meat and will include any related activities conducted at any place as an ancillary part of such business, such as manufacturing or processing of meat, the treatment and processing of skins or hides, rendering, processing of by-products and/or retail and/or wholesale sales;

(c)     meat retail establishments - an establishment wholly or predominantly concerned with the retail and/or wholesale sale of fresh meat and/or meat products, including establishments where meat and/or meat products including ham and smallgoods and similar products are processed and/or manufactured as an ancillary part of the retail and/or wholesale business; and

(d)     the following:

(i)     handling and further processing of all by-products of the establishments referred to in clauses 4.2(a), 4.2(b) or 4.2(c), including skins, hides and rendering; and

(ii)     distribution, transport and storage (including freezing and cold storage) operations for the purpose of transport or storage of the meat or meat products of an establishment referred to in clauses 4.2(a), 4.2(b) or 4.2(c),

where such activities are carried out by an employer engaged in any of clauses 4.2(a), 42.(b) or 4.3(c) as an ancillary part of the business of that establishment, or by an employer that is a related company of such employer.

4.3     This award does not cover:

(a)     meat inspectors (being employees of an employer covered by this award who are engaged to perform duties equivalent to duties usually performed by AQIS Meat Inspectors) except to the extent provided for by clause 19 - Relieving inspection duties;

  (b)     employees covered by:

(i)     Nurses Award 2010;

(ii)     General Retail Industry Award 2010; or

(iii)     Food, Beverage and Tobacco Manufacturing Award 2010,

(c)     employees engaged to undertake managerial duties and responsibilities (at the level of foreman and above);

(d)     employers and employees engaged in the slaughter and/or processing of any species of poultry, game or game birds not specifically listed in clause 2-Definitions;

(e)     storage, transport or distribution of meat or meat products or by-products by employers who are not engaged in, or who do not conduct or operate a meat processing establishment, a meat manufacturing establishment or a meat retail establishment, and are not a related company of an employer that is so engaged;

(f)     employees engaged in mechanical and electrical maintenance classifications covered by the Manufacturing and Associated Industries and Occupations Award 2020.

…

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.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

…

13    Throughout the period to which this appeal relates, Schedule A to the MIA “…[set] out the classification structure that [applied] to all employees covered by [that] award”. The only classification of present relevance was that of “Meat Industry Level 3” employees. Clause A.3.3 of the MIA provided as follows:

A.3.3 Meat Industry Level 3

An employee at this level will be performing the following indicative tasks:

14    Clause 4 of the CSA contained equivalent coverage provisions relevant to that award, relevantly:

4.     Coverage

4.1     This industry award covers, to the exclusion of any other modern award:

(a)     employers in the contract cleaning services industry throughout Australia; and

(b)     employees (with a classification defined in Schedule A-Classification Definitions) of employers mentioned in clause 4.l(a).

4.2     For the purposes of clause 4.1, contract cleaning services industry means the business of providing cleaning services under a contract and includes:

(a)     cleaning, including event cleaning; and

(b)     hygiene and pollution control; and

…

4.6     If an employer is covered by more than one award, an employee of the employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and the industry in which they work.

NOTE: An employee working in the contract cleaning services industry who is not covered by this industry award may be covered by an award with occupational coverage.

…

15    Like the MIA, the CSA also contained, at Schedule A, a classification structure. It provided for a suite of “Cleaning Services Employee” classification levels. The second level is of particular relevance to this appeal. It provided as follows:

A.2 Cleaning Services Employee Level Two (CSE 2) means an employee providing cleaning services at a higher skill level than an employee at CSE l level.

A.2.1 Employees at this level:

(a)    work from complex instructions and procedures; and

(b)    assist in the provision of on-the-job training; and

(c)    work under general supervision either individually or in a team; and

(d)    are responsible for assuring the quality of their own work; and

(e)    perform those tasks customarily performed by cleaners.

A.2.2 A CSE 2 may be required to perform any duties of a CSE 1 and, in addition, may be required to perform any of the following indicative tasks, or a combination of such tasks, for the greater part of each day or shift:

(a)    routine repair work or building maintenance (of a non-trade nature) in or about the facility; or

(b)    ordering and distribution of toilet and other requisites or cleaning materials; or

(c)    customer or public relations duties; or

(d)    carrying out those roles expected of a leading hand (subject to the provision of the applicable allowance in accordance with clause 17. 7-Leading hand allowance );or

(e)    carpet cleaning; or

(f)    cleaning windows on the exterior of multi-storied buildings from swing scaffolds, boatswain's chairs, hydraulic bucket trucks or similar devices; or

(g)    operating ride-on powered machinery; or

(h)    operating steam cleaning and pressure washing equipment; or

(i)    maintaining gardens, lawns or rockeries; or

(j)    trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading fertiliser, clearing shrubs or trimming hedges; or

(k)    vehicular rubbish collection or operating mobile compaction units; or

(l)    specialist computer cleaning.

The primary judgment

16    Before the SAEC, Mr Mullan contended that his employment was covered by the CSA. BioGiene accepted that it was covered by the CSA but contended that, insofar as it undertook cleaning work at the Bordertown abattoir, it was also covered by the MIA. That being so, it contended that the combined effect of cll 4.7 of the MIA and 4.6 of the CSA was such that Mr Mullan was covered only by the award that contained the classification “most appropriate” to him. It was said that that was the “Meat Industry Level 3” classification within the MIA.

17    Whether or not the MIA covered BioGiene generally or in relation to its employment of Mr Mullan turned upon whether or not it was an employer “…in the meat industry”: MIA, cl 4.1. The SAEC concluded that it was not: Primary Judgment, [33]-[35].

18    The SAEC also concluded, in any event, that the MIA did not cover Mr Mullan because he was not employed in a classification established under it. It is convenient to set out in full its conclusion on that front (Primary Judgment, [36]):

36    Next I conclude that the MIA's listed indicative tasks for the eight MI worker classifications are not classifications listed in Schedule A. There are only eight classifications and they are all expressed as Meat Industry Levels. There is no classification of cleaner in Schedule A, notwithstanding the reference to 'Cleaners (all-establishments)' and MI 3 in the summary of hourly rates of pay set out in Schedule B.4. On that basis I conclude that the respondent did not employ the applicant or any other cleaners in any MIA classifications.

19    Either of those conclusions was sufficient to decide the controversy. Nonetheless, the SAEC considered the application of cl 4.7 of the CSA and whether, insofar as concerned Mr Mullan, a classification under the CSA was more appropriate than one under the MIA. Again, it is convenient to replicate the concise conclusions to which it was drawn (Primary Judgment, [39]-[42]):

39    The MIA's only relevant classification does not distinguish between experience, skill level, equipment used or supervisory responsibilities of cleaners. In contrast to the sole MI 3 level for all cleaning work, the CSA has three classification levels. The lowest is basic, the second is for more complex cleaning, and the third is essentially for supervisory cleaners.

40     Here the applicant would be classified at level 2 based on the specialised pressurised washing equipment used each shift and provided by the respondent, this being an indicative task for the level: cl A.2.2(h). The nature of the cleaning work is also analogous to specialised computer cleaning, a listed indicative task for CSE 2: cl A.2.2(l). That is based on the need to clean to a microbial level for important food safety reasons in accordance with prescribed hygiene standards. This further supports CSE 2. The applicant's specific additional supervisory tasks do not alter the classification level.

41     I conclude that the CSA classification of CSE 2 would be more appropriate to the applicant's duties…because that classification more appropriately caters for the specialised nature of the work performed.

42     In relation to the issue of the most appropriate environment I disagree that the working environment is that of an operating abattoir. Instead it is the empty abattoir without animals, meat workers or meat, but with the waste and contaminants from butchering animals and processing their meat. The applicant does not handle meat and does not work alongside meat workers. The cleaning environment is little different from any other industrial food production premises at times of no production work being performed. The working environment is that of an empty building that needs to be cleaned before work resumes the next day or shift, and not that of an operating abattoir. This type of working environment is common to the contract cleaning services industry. For these reasons I conclude that the working environment is most appropriately covered by the CSA.

The appeal

20    BioGiene’s amended notice of appeal identifies eight grounds, namely:

1.     The Court erred in finding that the Appellant, BioGiene Pty Limited, was not an employer in the meat industry, within the meaning of the [MIA].

2.     The Court erred in finding that there is no classification of cleaner in Schedule A to the MIA.

3.     The Court erred in finding that the Respondent, Mr Benjamin Mullan, was not employed by the Appellant pursuant to classification 3 of the MIA.

4.     The Court erred in finding that the MIA was not the most appropriate award to apply to the Respondent, having regard to:

a.     The MIA classification 3 applicable to the Respondent; and

b.     The environment in which the Respondent normally worked.

5.     The Court erred in finding that the Respondent's employment was and is governed by the terms of the Cleaning Services Award 2020.

6.     The Court erred in upholding and not dismissing the Respondent's claim for overtime.

7.     The Court erred in finding that the Respondent never saw the Applicant's written operations manual.

8.     The Court erred in finding that the Applicant conceded that only category 3 of the [MIA] applied to cleaners.

21    At the hearing of the appeal, counsel for BioGiene indicated—correctly, with respect—that “…there [were] really only three substantive issues” for the court to consider, namely:

(1)    whether the MIA covered BioGiene;

(2)    if it did, whether BioGiene employed Mr Mullan in a role that corresponded to a classification applicable under that award; and

(3)    if he was so employed, whether that classification—as compared to one provided for by the CSA—was the “most appropriate” for the purposes of cll 4.7 of the MIA and 4.6 of the CSA.

22    Mr Mullan does not contest the second of those questions. If the court were to find that the MIA covered BioGiene, Mr Mullan accepts that it should follow (subject to the resolution of the third question—and contrary to what the SAEC concluded at [36] of the Primary Judgment) that he was employed as a “Meat Industry Level 3” employee. The appeal, then, turns upon two questions: did the MIA cover BioGiene; and, if it did, which award contained the “most appropriate” classification?

23    It is convenient to limit the discussion that follows to those central questions. We shall return to the individual appeal grounds—and to how they should interact with the answers to those two questions—later in these reasons.

MIA coverage

24    The MIA is expressed to cover “…employers throughout Australia in the meat industry…” Whether or not it covered BioGiene, then, turns upon whether or not BioGiene was an employer “in the meat industry”. BioGiene submits that it was, because the work that it was contracted to perform was work that was carried out at an abattoir. It attributes a locational character to the word “in”; that is to say, it reads “employers…in the meat industry” as sufficing to include employers that employ people whose work is undertaken within the physical premises of a meat business. Additionally, it contends that its work at the Bordertown abattoir involved activities that were sufficiently related and ancillary to the meat processing works conducted there as to bring it within the defined conceptual limits of the “meat industry”.

25    Mr Mullan, in contrast, contends that BioGiene is an employer in the contract cleaning services industry. It is, he says, in the nature of that industry that the work that its employees are engaged to perform will be performed within the physical premises of other businesses, many (if not the overwhelming bulk) of which will be subject to other awards, including awards that contain classifications that contemplate the performance of cleaning work. If, by that reality alone, a contract cleaning business should be understood to operate simultaneously within the cleaning services industry and the industries within which its clients operate, then the proper classification of its employees will always depend upon the “most appropriate” test for which cl 4.6 of the CSA provides. That, in turn, would breed significant uncertainty, and would sit uneasily alongside the aspirations that define the “modern awards objective” (above, [9]).

26    The precise limits of the phrase “employers…in the meat industry” in cl 4.1 of the MIA turns upon an orthodox process of construction. The principles that the court should apply in that endeavour are well known and were not in contest. When construing the terms of a modern award, the court looks to divine and give effect to the meaning that their authors intended them to convey: Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J). The terms in which an award is framed are to be understood under the light of their context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246 [2] (Gleeson CJ and McHugh J). They must not be construed in a vacuum, divorced from industrial realities: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, 440 [57] (French J).

27    Ordinarily, a reference in an award (or any instrument) to an “industry” would not sensibly be understood as a reference to a physical location or locations. Industries are defined by constituent commercial or economic processes or activities, not places. Although there might be some exceptions (for example, stevedoring enterprises), a business would not normally be understood to operate within a particular industry merely because of the location at which its employees work.

28    Nonetheless, cl 4.2 of the MIA proceeds, for the purposes of that award, to define the “meat industry” so as to include certain species of establishment (specifically, “meat manufacturing”, “meat processing” and “meat retail” establishments). That may (and BioGiene contends that it does) suffice to introduce a locational element to the definition: to qualify the “meat industry” as comprising at least the physical locations of such establishments.

29    If it does, the attraction underpinning BioGiene’s contention is apparent. Insofar as the reference to “establishments” within the definition in cl 4.2 of the MIA should be understood to incorporate specific places, the contention that the performance of work within such locations should qualify as work within the “meat industry” is not obviously wrong. On the contrary, it is compelling.

30    The matter is complicated somewhat by the descriptions of the three categories of establishment that are said non-exhaustively to comprise the “meat industry”. Those descriptions are unhelpfully multi-faceted: they are defined by reference to the activities with which each nominated species of establishment is “wholly or predominantly concerned”; but they then (in two cases) extend to other “related activities”. By way of example, “meat processing establishments” are defined as establishments “wholly or predominantly concerned with any one or more of [listed] activities”; but also to “include any related activities conducted at any place as an ancillary part of such business…” That definition is confusing (at least insofar as “establishment” should be understood to denote a physical location). It begins by nominating the species of establishment that partly comprises the “meat industry” and ends by nominating various activities conducted elsewhere—yet it seems to contemplate that the former might somehow “include” the latter. Conceptually, an “establishment” (insofar as it denotes a physical location) may be characterised by the activities that are conducted within it; but it is grammatically nonsensical to speak of physical establishments that “include” activities.

31    That semantic mismatch suggests that the references to “establishment[s]” within cl 4.2 of the MIA are not intended to carry locational or physical connotations. Rather, it suggests that “establishment” is used as a synonym for “business” or “undertaking”: in other words, that the meat industry comprises (or includes) businesses of the types described. Reading the references in that way avoids the confusion referred to above and affords the definition a measure of clarity that is otherwise lacking. It is also consistent with the conceptual limits of the term “industry” (being referrable, typically, to economic or commercial processes or activities, rather than physical locations).

32    That being so, we do not accept that an employer might qualify as one “in the meat industry” simply because its employees perform their work at (for example) a meat processing facility. In order that an employer might be understood to be “in the meat industry”, it must be understood to be in the business of—or to otherwise be concerned in the performance of work associated with—meat manufacturing, meat processing or meat retailing.

33    The question then arises: does the cleaning of a meat processing establishment qualify as a “related activity conducted…as an ancillary part of” the Bordertown abattoir? If it does, it would follow that BioGiene was an “employer…in the meat industry” by operation of cl 4.2(b) of the MIA.

34    Again, the limits of that concept (“related activities conducted…as an ancillary part” of an abattoir business) turn upon an orthodox process of construction: what do the words mean when read in, and with appropriate regard to, their proper industrial context?

35    It is not difficult to understand how it could be suggested that cleaning should qualify as an activity that is relevantly ancillary to the business of meat processing. It was not in contest—and could hardly be doubted—that the continued operation of the Bordertown abattoir was conditional, in both a regulatory sense and a commercial reputational sense, upon the maintenance of high standards of hygiene. Plainly, those standards could only be met by undertaking the activities that BioGiene was contracted to perform. Those activities were (and are) crucial to the primary activities of the abattoir such that they should properly be regarded as “activities conducted…as an ancillary part” of it.

36    What is less clear is whether cleaning might be described as an activity “related” to the “killing, dressing, boning, slicing, preparation, and/or packing of fresh meat”. In our view, it is not. The limits of activity that is “related” to those primary activities are apparent from the remainder of the definition in cl 4.2(b) of the MIA (and from an orthodox application of the ejusdem generis principle, which is properly applied in this context): the examples that are there enumerated (“manufacturing or processing of meat, the treatment and processing of skins or hides, rendering, processing of by-products and/or retail and/or wholesale sales”) all concern the realisation of commercial opportunities that present in consequence of the primary activities of meat processing establishments. Those activities are related in the sense that it is the primary activities that create those secondary (related) opportunities.

37    The same cannot be said of cleaning; nor, indeed, of any of the facilitative vocations that one might ordinarily associate with the management of any successful business, including professional services (such as accountancy and legal services), staff training, information technology support, building maintenance, security and so on. All are ancillary in the sense that they accumulate to a point facilitative of some central commercial purpose. Some are more important to the realisation of that purpose than others. Some—and cleaning is a good example, particularly at an abattoir—can fairly be described as essential to it. But they are not, of themselves, activities that are related to that purpose. Their performance does not qualify the employers whose employees perform them as “employers…in the meat industry”.

38    That is not to say, of course, that cleaning tasks are not tasks to which the MIA might ever apply. Insofar as they are undertaken by “employers…in the meat industry”, they are. So much is clear from the reference to “Cleaners” within the list of indicative tasks associated with the “Meat Industry Level 3” classification for which the MIA provides. That, though, is not the focus of the present inquiry. The question that arises presently is whether cleaning qualifies as an activity that is relevantly (which is to say, for the purposes of cl 4.2(b) of the MIA) related and ancillary to the primary activities of the Bordertown abattoir. In our view, it does not.

39    Here, then, the cleaning work that BioGiene was contracted to perform at the Bordertown abattoir was not work that sufficed to constitute it as an “employer…in the meat industry”. It follows that the MIA did not cover BioGiene and the SAEC was correct so to decide.

The “most appropriate” test

40    Having concluded as we have on the issue of MIA coverage, it is not strictly necessary that we should address the remaining issue that presents for consideration in the appeal: namely, whether the classification “most appropriate” to Mr Mullan was one contained in the CSA or the MIA. Nonetheless—and in deference to the helpful submissions that were advanced on that question at the hearing—we shall do so.

41    A convenient starting point for the analysis that follows is the text of cll 4.7 of the MIA and 4.6 of the CSA. Immediate note may be made of their similarity. Although they are not identical, those terms (or materially identical facsimiles of them) have been a feature of modern awards since the advent of the FW Act. Indeed, the clause was first conceived of prior to that enactment, in the context of an “award modernisation request” made in 2008 under s 576C of the Workplace Relations Act 1996 (Cth): Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364, 377-378 [30] (Giudice J, Lawler and Watson VPP, Watson, Harrison and Acton SDPP, and Smith C). It (or close analogues of it) made its way into each of the CSA and the MIA (or their predecessors) shortly thereafter: Re Request from the Minister for Employment and Workplace Relations [2009] AIRCFB 345 (Giudice J, Watson VPP, Watson, Harrison and Acton SDPP, and Smith C); Re Request from the Minister for Employment and Workplace Relations [2009] AIRCFB 450 (Giudice J, Lawler and Watson VPP, Watson, Harrison and Acton SDPP, and Smith C).

42    In settling upon the form of the standard “most appropriate” clause, the Australian Industrial Relations Commission (as it then was) acknowledged what was in any event plain: namely, that “…the provision involves the application of judgment in relation to the adjective ‘appropriate’ and the phrase ‘the environment in which the work is performed’…”: Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364, 377 [30] (Giudice J, Lawler and Watson VPP, Watson, Harrison and Acton SDPP, and Smith C).

43    Two features of the Primary Judgment bear noting at this juncture. The first concerns the reasons for which the SAEC concluded that the classification most appropriate to Mr Mullan’s situation was that of “C[leaning ]S[ervices ]E[mployee level] 2” for which the CSA provided (above, [19]). The second concerns the nature of the SAEC. We shall address each in reverse order.

44    The South Australian Employment Tribunal Act 2014 (SA) (the “SAET Act”) establishes, as its name suggests, the South Australian Employment Tribunal: SAET Act, s 5(1). That tribunal is empowered to sit “in Court Session” as the SAEC: SAET Act, s 5(2). When it does so, it is empowered to hear (amongst others) matters involving allegations of breach of s 323(1) of the FW Act (see above, [8]).

45    The SAEC was formerly known as the Industrial Relations Court of South Australia and, before that, the Industrial Court of South Australia. Along with the South Australian Employment Tribunal (formerly, the Industrial Relations Commission of South Australia), it has been a feature of the South Australian judicial system for more than a century. It exercises both civil and criminal jurisdiction restricted to controversies arising out of employment relationships and, on any view, it qualifies as a specialist body operating with expertise in the field of industrial law. The conclusion of such a body concerning a matter that requires, as the then Australian Industrial Relations Commission put it, “…the application of judgment” is one to which this court might afford substantial weight: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 154-155 [47] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

46    Regardless, we consider that the conclusions to which the SAEC was drawn were correct. As has been rehearsed, the nature of Mr Mullan’s work at the Bordertown abattoir was not controversial. It involved the after-hours cleaning of equipment and work areas normally used for meat processing purposes. The work was specialised insofar as particular standards of hygiene were to be met, which required the use of particular equipment and cleaning products; but, as the accepted evidence made clear, it was otherwise routine and relatively simple to master. It was carried out at times when the abattoir was not engaged in its central meat processing endeavours. Mr Mullan did not work alongside abattoir workers.

47    Neither the MIA nor the CSA identifies any criteria that might weigh upon an assessment as to which of two or more competing classifications is the “most appropriate” to a particular employee. Likewise, no assistance is offered to that end by any of the relevant decisions of the Fair Work Commission (or its predecessors) that led to the inclusion of the terms now in focus. What limited jurisprudence there is on the subject suggests that the question should turn at least partially upon how comprehensively the indicative tasks associated with each classification match against the work that the subject employee performs: Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449, 457-458, [34] (Siopis, Buchanan and Flick JJ).

48    In maintaining that the classification most appropriate to the nature of Mr Mullan’s work was that of “Meat Industry Level 3” under the MIA, BioGiene seeks to stress the importance of cleaning work to the operation of the Bordertown abattoir. It submits that compliance with applicable health and hygiene standards is self-evidently critical to the abattoir’s operations, such that “…the meat processing environment is the dominant one in which [Mr Mullan] works”.

49    There is undoubted force to those submissions; but, ultimately, the question of which classification is most appropriate is one of judgment that must be formed through the accumulation of detail. BioGiene seeks, as it would, to elevate certain details to levels that it says are determinative; but there are other matters to which the endeavour warrants that attention also be directed.

50    At its core, Mr Mullan’s work was contract cleaning. As is to be expected, the classification structure for which the CSA provides was geared specifically to the performance of that work. That structure incorporates a recognition that contract cleaners will work with varying degrees of skill and responsibility, including (in some cases) training and supervisory responsibility. Further, it bears repeating that the CSA expressly covers “hygiene and pollution control” work.

51    The MIA classification structure, by contrast, refers to “cleaners” in only the most peremptory of ways. That reference is tucked discreetly away within the list of 19 otherwise diverse and undifferentiated tasks or callings with which the “Meat Industry Level 3” classification is associated. No mention is made of any supervisory function of the kind that Mr Mullan assumed.

52    Those realities attracted themselves to the SAEC (see above, [19]). To borrow from the observations made in Coles Supermarkets (at 458 [35]):

We are unable to fault [the SAEC’s] approach. It appears to us that the primary judge applied himself diligently to the comparison and evaluation which was required. On the facts found by the primary judge we would reach the same conclusion.

53    The classification most appropriate to Mr Mullan was that of “Cleaning Services Employee Level Two” under the CSA. Mr Mullan is properly understood to have worked as a contract cleaner in an abattoir; not as an abattoir worker who performed cleaning works.

The appeal grounds

54    We return to the specific grounds of appeal that BioGiene advanced and to how they are to be resolved in light of the conclusions that are recorded above.

55    Ground one is not made out: the SAEC was correct to conclude that BioGiene was not an employer in the meat industry.

56    Ground two is no longer controversial but, in any event, is not dispositive. It may be accepted that the classification structure under the MIA includes some provision relevant to cleaners. To the extent that the SAEC concluded otherwise (if it did), it did so in error; but that error is not material to the outcome of the appeal.

57    Ground three must fail. Mr Mullan was not employed “pursuant to classification 3 of the MIA” and the SAEC did not err by failing to conclude that he was.

58    Ground four must also fail. The SAEC’s conclusion that the classification most appropriate to Mr Mullan was that of “Cleaning Services Employee Level Two” under the CSA was correct.

59    Grounds five and six are little more than collective restatements of ground three, and must fail for the same reason.

60    Grounds seven and eight are irrelevant to the disposition of the appeal and nothing more need be said of them.

Disposition

61    The appeal should be dismissed. Most likely in recognition of the limitations imposed by s 570 of the FW Act, Mr Mullan did not seek any order for costs and none should be made.

Associate:

Dated:    9 May 2022

REASONS FOR JUDGMENT

O’CALLAGHAN J:

62    I have read in draft the reasons for judgment of Charlesworth and Snaden JJ and I agree that the appeal should be dismissed for the reasons their Honours give.

Associate:

Dated:    9 May 2022