FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 2 February 2016.

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

REASONS FOR JUDGMENT

1    In August 2015 The Australian Workers’ Union (the “Union”) filed in this Court an Originating Application seeking declaratory relief pursuant to the Fair Work Act 2009 (Cth) (the “Fair Work Act”). The Respondent is Cleanevent Australia Pty Ltd (“Cleanevent”).

2    The Union seeks declarations that Cleanevent is an employer in the contract cleaning services industry within the meaning of cl 4 of the Cleaning Services Award 2010 (the “Cleaning Services Award”) and that its employees undertaking cleaning work in the classifications listed in Schedule D-Classifications to that Award are covered by that Award. The Union also seeks a declaration that from 18 June 2015 Cleanevent is required to pay its employees in accordance with that Award.

3    Cleanevent opposes the grant of such declaratory relief. It contends that its employees are covered by the Amusement, Events and Recreation Award 2010 (the “Amusement Award”).

4    The Senior National Legal Officer of the Union, Mr Stephen Crawford, maintains that there are “significant differences” between the two awards, including:

    the fact that under cl 27 of the Cleaning Services Award work on Saturdays is paid at time and a half of the ordinary hourly rate of an employee’s classification and work on Sundays is paid at double time, whereas under cl 23 of the Amusement Award work on Saturdays is paid at the ordinary hourly rates and work on Sundays is paid at time and a half; and

    the fact that hourly rates under the Cleaning Services Award are generally slightly higher than those under the Amusement Award.

5    Declaratory relief substantially as sought by the Union should be granted. An order should also be made to ensure the payment to employees of any amounts under-paid.

6    The division between the parties arises by reason of the termination by the Fair Work Commission in June 2015 of the workplace agreement previously applying to the employees of Cleanevent, namely the Cleanevent Australia Pty Ltd AWU Agreement 2006.

7    It was common ground between the Union and Cleanevent that:

    the Cleaning Services Award “applied” to the work being performed by the relevant employees and that that Award “covered” those employees.

That which divided the parties was whether:

    the Amusement Award also “applied” to those employees and whether that Award “covered” those employees;

and, in the event that it did, whether:

    the Amusement Award was the “most appropriate” award.

The Union rejected Cleanevent’s submission that the Amusement Award “applied” or “covered” those employees and submitted that – even if that Award did apply – the Cleaning Services Award was the “most appropriate” award.

8    The submissions advanced on behalf of the Union prevail. In reaching that conclusion it is necessary briefly to set forth:

    the relevant statutory provisions and some principles of construction which were common ground between the parties;

    the relevant provisions of the Cleaning Services Award and its evolution;

    the relevant provisions of the Amusement Award and its subsequent variation; and

    the reasons why the Union’s submissions prevail.

The Fair Work Act & principles of construing an award

9    The provisions of the Fair Work Act of most immediate relevance to the present dispute are ss 46, 47 and 48.

10    Section 46 provides as follows:

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.

The phrase of present relevance is that in s 46(2), namely “the award applies to the person”. That phrase is expanded upon in s 47.

11    Section 47 provides in part as follows:

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.

…

Modern awards apply to employees in relation to particular employment

(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.

The phrases of present relevance in s 47 are the “award covers the employee” and “particular employment”. The former phrase is expanded upon in s 48.

12    Section 48(1) provides as follows:

When a modern award covers an employer, employee, 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.

Within this section the phrase of present relevance is “expressed to cover…”.

13    When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. Madgwick J there observed:

Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] per Murphy J. The words used in an agreement or an award are to be given their “natural and ordinary meaning”: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16].

14    It is also well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) there observed:

[53]    The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).

His Honour continued on to observe:

[57]    It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

15    There is repeated reference in the authorities to the need to take into account the “context” in which an industrial agreement or award emerges. Thus, by way of example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 Gleeson CJ and McHugh J observed:

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …

Kirby J there also observed:

[66]    … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.

[67]    In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity …

In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449 at 455 Siopis, Buchanan and Flick JJ similarly stated:

[22]    The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.

Their Honours continued:

[46]    … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.

16    But care must be taken in looking to “the conduct of the parties” when construing an agreement, including an industrial agreement: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Qantas Airways Limited [2001] FCA 547 at [21], (2001) 106 IR 307 at 313 to 314 per North J. Gray ACJ also expressed a need for caution in Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616, (2006) 151 FCR 513 at 520 where his Honour observed:

[31]    Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement … It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning …

See also: Health Services Union v Ballarat Health Services [2011] FCA 1256 at [77] per Gray J.

17    A further provision of the Fair Work Act which assumes relevance is s 134. That section provides in part as follows:

What is the modern awards objective?

(1)    The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

…

(g)    the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards …

…

With reference to s 134(1)(g), in Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131 at [36] Buchanan J (with whom North J agreed) rejected a submission that would “elevate form over substance”. The suggested approach advanced in that case, according to his Honour, was “so artificial” that he did “not accept that it can have been intended”. Notwithstanding a desire to promote “simplicity”, that objective cannot prevail where it does not give effect to the words used in an award: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [54] per Katzmann J.

18    It should finally be noted that in March 2008 the Commission published a “model clause” to be applied where there were “overlapping awards”: Re Request from the Minister for Employment and Workplace Relations [2008] AIRCFB 1000 at [28] to [31], (2008) 177 IR 364 at 377 to 378. It was that “model clause” which endorsed the expression “most appropriate”.

19    Little is to be gained by attempting to interpret either that phrase or other like phrases free from the industrial context in which they arise for consideration. It may nevertheless be noted that in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [31] to [35], (2014) 245 IR 449 at 457 to 458 the Full Court endorsed the approach taken by the primary Judge in determining which of the two classifications of employees there in issue was the “more appropriate”. In doing so, reference was made to such factors as:

    the training as to the range of tasks to be performed; and

    which classification was the “more comprehensive match”.

The contrast between those classifications which apply “specifically” to employees, as opposed to classifications which may apply “very widely”, was also relied upon by the Full Bench of the Fair Work Commission in Australian Workers’ Union v Coffey Information Pty Ltd [2013] FWCFB 2894, (2013) 232 IR 266 at 281 where it concluded as follows:

[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.

Clause 4.2(a) of the On-site Award excluded the application of that Award if the employees were covered by the Manufacturing Award.

The Cleaning Services Award

20    The Cleaning Services Award was made as part of the modernisation process undertaken by the then Australian Industrial Relations Commission (the “Commission”) during 2009.

21    Prior to the making of that Award, an “Exposure Draft” had been made published by the Full Bench of the Commission in January 2009. Clause 4 of the draft addressed the proposed “coverage” of the Award and, in particular, cll 4.1, 4.2 and 4.3 provided as follows:

4.    Coverage

4.1    This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classification listed in Schedule A to the exclusion of any other modern award.

4.2    To avoid doubt the contract cleaning services industry includes:

(a)    cleaning (including event cleaning, trolley collection and hygiene and pollution control); and

(b)    minor property maintenance which is incidental or peripheral to cleaning.

4.3    For the purpose of clause 4.2(a), event cleaning means the provision of cleaning, repair and maintenance services in or in connection with the staging of sporting, cultural, scientific, technological, agricultural or entertainment events and exhibitions of any nature. Event cleaning includes the performance of cleaning duties before, during and after an event, but does not include regular maintenance cleaning, and must be for a specific event.

That Exposure Draft prompted submissions being made by interested persons.

22    Cleanevent was one of those who made a submission. It opposed any potential for its activities to be embraced within the ambit of the proposed Cleaning Services Award. In February 2009 it thus wrote to the President of the Commission and submitted in part as follows (without alteration):

Our issues of significant concern are as follows:

(i)    Clause 4.2 and Clause 4.3 affect the capacity of our company to enter into legitimate agreements with the other union that has coverage in the event industry that being the AWU. Although a formal demarcation agreement exists between the LHMU and the AWU in the event industry, our company is concerned that the award in its proposed from will override that agreement. The result would be ongoing disputation from which no party can gain.

(ii)    Historically event cleaning has attracted different rates and conditions than daily or regular cleaning as the needs of a true “event clean” are quite different from those of regular cleaning. The exposure draft seeks to drag all event cleaning into the regular cleaning rates and conditions and this is fundamentally opposed by our company.

“LMHU” is a reference to the Liquor, Hospitality and Miscellaneous Union.

23    The Australian Workers’ Union also made a written submission. It was concerned as to what it perceived to be ambiguity in the definition of “event cleaning” and whether “regular maintenance cleaning” fell within cl 4.3 of the Exposure Draft. That Union submitted that “there is a need for certainty and clarity about the application of the award to ‘regular maintenance cleaning’ associated with premises that regularly hold ‘specific events’ under clause 4.3”. It proposed that cl 4.3 be re-drafted as follows:

4.3    For the purpose of clause 4.2(a), event cleaning means the provision of cleaning, repair and maintenance services in or in connection with the staging of sporting, cultural, scientific, technological, agricultural or entertainment events and exhibitions. of any nature. Event cleaning includes the performance of cleaning duties before, during and after an event, but does not include regular maintenance clearing, and must be for a specific event.

24    A hearing was held before the Commission. The hearing continued on 27 February 2009. Oral submissions were made on behalf of the Building Services Contractors Association of Australia and the Australian Contracting Cleaners Association. Their submissions supported the inclusion within the proposed Cleaning Services Award of cleaners engaged in event cleaning. Cleanevent also made submissions. There was also an appearance, albeit belatedly, on behalf of the Australian Workers’ Union.

25    The position pursued by Cleanevent during the course of the resumed hearing on 27 February 2009 was curious. At one stage Counsel on behalf of Cleanevent, Mr Diamond, submitted as follows:

MR DIAMOND:     As my client indicated in its written submissions, at the moment the way the exposure draft is constructed, it is the view of my client that that will effectively contribute to a re-ignition of the demarcation argument between the ASU and the LHMU. My client has a fairly dominant role in event cleaning. It has certainly been caught between those two unions in this argument which has flared up again in recent years. The suggestion that was made in the written submission was that that issue, that sole issue perhaps be the subject of some conciliation proceedings before a single member of the Bench to see whether it can be worked out.

The President of the Commission, Justice Guidice, then enquired whether Cleanevent had made “any approaches for direct discussions with the union or unions about this”. There followed a short adjournment. Immediately thereafter was this exchange:

JUSTICE GIUDICE:    Yes, Mr Diamond.

MR DIAMOND:    Your Honour, by agreement I do have news to report that is good, so it was felt I should do that briefly.

JUSTICE GIUDICE:    Yes.

MR DIAMOND:    Having warned your Honours and Commissioner of violence and calamity ahead on the Event Cleaning issue, we had a short conference during the break and peace broke out. I understand that the amendment proposed by the AWU is a consent matter, I wasn’t aware of that. That certainly would address my client’s concerns, and if there is broad agreement on that that would be a good fix for it. If the Commission pleases.

JUSTICE GIUDICE:    Another disaster averted, Mr Diamond.

MR DIAMOND:    So it seems, so it seems, it’s always good when there is a love fest between the unions, your Honour, and it’s always good to report it.

26    The Full Bench of the Commission made its decision in April 2009: [2009] AIRCFB 345. That decision stated in part as follows:

Cleaning Services

[127] We have decided to make an award called the Cleaning Services Award 2010. For the most part it is in the same terms as the exposure draft published on 23 January this year, although there are a number of changes which should be mentioned.

[128] The coverage clause has been amended. An exclusion has been added to make it clear that trolley collections, which is covered by the General Retail Modern Award is not covered by the award. The definition of event cleaning has been varied to make it clear that the award does not cover repair and maintenance services.

27    Clause 4 of the Cleaning Services Award as ultimately made provides in part as follows:

4.    Coverage

4.1    This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D–Classifications to the exclusion of any other modern award.

4.2    The contract cleaning services industry means the business of providing cleaning services under a contract and includes:

(a)    cleaning (including event cleaning, trolley collection and hygiene and pollution control but excluding trolley collection covered by the General Retail Industry Award 2010); and

(b)    minor property maintenance which is incidental or peripheral to cleaning.

4.3    For the purpose of clause 4.2(a), event cleaning means the provision of cleaning, in connection with the staging of sporting, cultural, scientific, technological, agricultural or entertainment events and exhibitions.

Clause 4.9, together with the Note to that clause, provide as follows:

4.9    To avoid doubt this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another award had employees who perform functions referred to in clause 4.2 or in the classification description referred to in Schedule D.

NOTE: Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

Clause 4.3, it may be noted, mirrored the amendment proposed by the Australian Workers’ Union.

The Amusement, Events and Recreation Award 2010

28    The Amusement Award also arose out of the award modernisation process.

29    In May 2009 the Commission published an “Exposure Draft” of this Award. According to a Statement made by the Commission in May 2009, the “exposure draft … is based to a large extent on the terms of the AWU Theme Park and Amusement Award …”: [2009] AIRCFB 450 at [75].

30    Cleanevent made no submission to the Commission.

31    The Commission made the Amusement Award on 4 September 2009.

32    In June 2010 an application was made to vary cl 4.2 of that Award. The application was made by Silverback Properties Pty Ltd and Muscillo Holdings Pty Ltd, the two companies involved in the operation of the Australia Zoo located on the Sunshine Coast in Queensland. It was Muscillo Holdings Pty Ltd that was involved with provision of food and beverages and merchandising services within the Zoo.

33    That application was to vary cl 4.2 as follows:

Clause 4.2 be varied by:-

a)    in sub-clause 4.2(a)(vi), by adding the word “zoos”, so that the sub-clause reads:

“(vi) zoos, animals parks and aquariums.”

b)    by adding a new sub-clause 4.2(d) in the following terms:-

“(d) For the purposes of this clause, the amusements events and recreation industry also includes the provision of services within the primary venue such as photographic services, the sale of food, beverages and merchandising, and also activities undertaken by an employer covered by this Award which are ancillary to the conduct of the primary venue, such as road or water transport at, to or from, or away from, the primary venue, sightseeing tours, travel arrangements, and wildlife research, conservation and collection conducted away from the primary venue.”

A written submission was also filed in June 2010 in support of the application made. That submission stated in part as follows:

28.    Australia Zoo is, as appears from the above description, a large and diverse facility which provides photographic services, the sale of food, beverages and merchandising, and ancillary services such as road transport to and from the tourist accommodation areas of the nearby Sunshine Coast and associated sight-seeing tours and travel arrangements. Australia Zoo is also a world renowned leader in wildlife research and animal welfare and conservation. Zoo staff are also regularly engaged in research nature conservation and collection of display animals away from the Zoo itself.

29.    All of the activities carried on by either Silverback Properties Pty Ltd or Muscillo Holdings Pty Ltd are directly integrated within the overall experience of visiting Australia Zoo, and/or are a part of its overall nature conservation role and purpose. As such, principally for the avoidance of future doubt, reference to such activities should be expressly referred to as being activities included within the definition of the Amusement, Events and Recreation Industry in the Award.

30.    Such express references would be consistent with the terms of clause 4.1 of the Award, which excludes the operation of all other modern awards from employers and employees covered by the Award, thereby effectively quarantining the entire operations of such employers from the effect of any other modern award.

31.    However difficulties in the practical interpretation of this provision may arise where activities are conducted away from the primary venue, as in the case of dedicated visitor transport vehicles or catching or nature conservation work in remote locations.

32.    Further, Muscillo is confined in its business activities to the provision of food and beverages, and merchandising within the Australia Zoo complex. It does not operate a “zoo” in the sense of being an operator or employer in respect of housing and welfare of animals, as appears to be required by clause 4.1 of the award, however it does conduct a range of other essential and related facilities within the primary Zoo venue which is operated by Silverback.

33.    In order to ensure that there can be no irregular or doubtful coverage of this Award in cases where the constituent elements of the overall service provided at a venue (which is otherwise covered by the Award) are provided by different corporate entities, it is submitted that the new subclause 4.2(d) set out in the Application for variation of the Award, should be added to the Award.

It was para [33] of this submission which was to assume significance in the present proceeding.

34    A hearing was conducted before Commissioner Harrison on 10 August 2010. The purpose or objective in seeking the amendment was explained by Counsel appearing for the applicants in part as follows:

The objective of that subclause is to ensure that the rope that the full bench originally ran around these kinds of facilities, by the terms of clause 4.1, runs a little wider and it definitely incorporates, within the coverage of the award, all of the matters that one might find generally being conducted in a facility of this kind. The alternative would be that there is a possibility – if that doesn’t apply, if that’s not the case – that a restaurant award, a fast-food award, a general hospitality, some of the veterinary awards and a range of other awards of that kind would all intrude into this operation and, as I say, I think the count was between – six and eight awards would apply within the boundaries of the facility, simply because Muscillo Holdings and Silverback have divided, between the two companies, the overall functions.

There were a number of references during Counsel’s submissions to the variation being intended to “rope off” the activities conducted at the Australia Zoo. Counsel appearing for the applicants before Fair Work Australia also relied upon s 134(1)(g) of the Fair Work Act and the objective of ensuring that the modern award system remains “simple” to understand and the “difficulty in interpretation in relation to the way that the web of modern awards was made in respect to a facility” such as Australia Zoo.

35    The application to vary the Award was granted. Clause 4.2(d) was added.

36    As varied, cl 4 of the Amusement Award provides in part as follows:

4.    Coverage

4.1    This industry award covers employers throughout Australia in the amusement, events and recreation industry and their employees in the classification set out in this award to the exclusion of any other modern award.

4.2    Definition of amusement, events and recreation industry

(a)    Amusement, events and recreation industry means the operation of:

(i)    leisure and recreation facilities and centres;

(ii)    sporting, exhibition, convention and amusement complexes;

(iii)    theme parks;

(iv)    heritage, tourism and cultural centres;

(v)    museums and galleries;

(vi)    zoos, animal parks and aquariums;

(vii)    agricultural and horticultural shows;

(viii)    carnivals and amusement parks;

(ix)    ten pin bowling venues;

(x)    go-kart racing venues; and

(xi)    amusement arcades, including video game and pinball parlours.

(b)    For the purposes of this clause, theme parks means locations or enterprises operating attractions or amusements (whether indoor or outdoor) open to the public through either paid or free admission.

(c)    For the purpose of this clause, the amusement, events and recreation industry also includes employers engaged in the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry.

(d)    For the purposes of this clause, the amusements, events and recreation industry also includes the provision of services within the primary venue such as photographic services, the sale of food, beverages and merchandising, and also activities undertaken by an employer covered by this Award which are ancillary to the conduct of the primary venue, such as road or water transport at, to or from, or away from, the primary venue, sightseeing tours, travel arrangements, and wildlife research, conservation and collection conducted away from the primary venue.

It was cl 4.2(d) which was relied upon by Senior Counsel for Cleanevent as being that provision which “covered” or “applied” to the activities undertaken by its relevant employees.

37    Clause 4.6, together with the Note to that clause, provides as follows:

4.6    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.

In the event that cl 4.2(d) applied to or covered the employees of Cleanevent, reliance was thereafter placed upon the Note in support of a further submission that it was the Amusement Award which was the “most appropriate” award.

38    Schedule B to this Award sets forth the “Classification Structure” of employees and provides in part as follows:

Schedule B–Classification Structure

B.1    Introductory level employee

Introductory level employee means an employee who enters the industry and who has not demonstrated the competency requirements of a Grade 1 employee. An employee at this level will undergo training for up to three months before progressing to Grade 1.

B.    Grade 1

B.2.1    An employee at this level is an employee who has completed at least three months training which will include successfully undertaking accredited courses of study or on-the-job training in all of the relevant day-to-day operating processes so as to enable the employee to perform work within the scope of this level.

B.2.2    An employee at this level performs work above and beyond the skills of an employee at Introductory level and to the level of their skills, competence and training.

B.2.3    An employee at this level may include a Cleaner, Maintenance person, Gardener, Handyperson, Animal attendant, Ride attendant, Tour guide, Customer Service Officer, Meet and Greet/Concierge, Photography Attendant, Host/Presenter, Car Park attendant, Parking attendant (not handling cash), Door attendant, General attendant, Admissions/Entrance attendant level 1, Gateperson (not on major gates), Bowling attendant, Usher and Event day attendant.

…

B.2.4    Such an employee will possess the following skills and may be required to perform the following duties:

…

(h)    Undertakes general cleaning duties, issuing costumes, grooming, cleaning of animal enclosures, mowing lawns, basic gardening and labouring tasks including operation of simple machinery, laundry duties, brush-cutting, basic labouring including assisting with animal care, basic repairs to clothing, food preparation, ushering, basic preparation of ingredients, assisting employees who are cooking, basic cooking and kitchen attending.

…

B.3    Grade 2

B.3.1    An employee at this level is an employee who has completed an appropriate level of training so as to enable the employee to perform work within the scope of this level.

…

B.3.3    Such an employee will possess the following skills and may be required to perform the following duties:

…

(k)    Food preparation, attending counter, handling cash, specific cleaning duties, animal care, ordering stock, hosting duties, operate rides, EFTPOS transactions, basic record keeping, taking bookings and reservations, telephone and switchboard operations, grooming, handling and feeding animals, presentations, operate cash register, beer reticulation, general gardening including operation of machinery, process invoices, drive forklift, stock control, pruning, irrigation, bar attending, waitering, attending snack bar, non-specialised cooking duties, operate games/amusement rides, ground controller/basic security and general park maintenance including maintenance of enclosures.

…

B.5    Grade 4

B.5.1    An employee at this level is an employee who has completed appropriate training or has acquired equivalent competency so as to perform work within the scope of this level. Work performed at this level will be trade level or equivalent.

…

B.5.3    Such an employee will possess the following skills and may be required to perform the following duties:

…

(r)    Trade qualified cooking, food production, senior security officer, trade qualified maintenance (i.e. plumbing, spray painting, construction work) designs costumes and production, liaise with agencies, staff recruitment, menu planning, animal training, medication of animals, plantation management, animal education duties, management of a food outlet, cleaning operators, projectionist, bar supervisor, maitre d’, greenkeeping, specialised performers and advanced lifeguarding.

The application of the Cleaning Services Award

39    It was in 2006 that the Union and Cleanevent entered into a workplace agreement known as the Cleanevent Australia Pty Ltd AWU Agreement 2006 (the “2006 Agreement”). That Agreement was made under the Workplace Relations Act 1996 (Cth) and governed the rights and entitlements of employees of that company who fell within the classification structure there set forth. The 2006 Agreement nominally expired at the end of 2009. Prior to that Agreement, the conditions of Cleanevent’s employees were determined by the Cleaning Industry – AWU/LHMU – Cleanevent Pty Ltd – Award 1999 (the “1999 Award”).

40    In November 2010 the Union and Cleanevent entered into a Memorandum of Understanding that the 2006 Agreement would continue to apply. It was the 2006 Agreement that was terminated by the Fair Work Commission in June 2015.

41    There was no disagreement between the parties as to the nature of the work undertaken by Cleanevent. Mr Bremner, the State Manager of that corporation which provides services to (inter alia) Cleanevent, said that the “business involves providing cleaning and waste management services at sporting, exhibition, convention and amusement complexes, recreation, leisure and cultural centres and facilities, carnivals and agricultural and horticultural shows”. There was limited cross-examination of Mr Bremner. In short, he agreed with the proposition that employees were not confined to only providing the services described in contracts as between Cleanevent and (for example) sporting venues. The services of employees extended (inter alia) to assisting members of the public in the giving of directions to facilities such as ATM machines and toilets located within particular venues and in providing additional security due to the variety of places attended by those employees in contrast to those places attended by specialist security staff. Mr Crawford described the nature of the work undertaken as the provision of cleaning services on a contract basis to businesses operating in a number of industries, including in relation to major sports stadia, racecourses, cultural venues, major sports events, festivals and leisure precincts. Mr Crawford further referred to the website of Cleanevent and the description there provided of Cleanevent as “the venue and event cleaning specialist” and the claim that it “provides cleaning and waste management services for many different industries, across large-scale events, as well as public spaces and buildings”.

42    Although it was common ground, it should be expressly acknowledged that there could be no doubt that the Cleaning Services Award applied to the relevant employees of Cleanevent. If for no other reason, that Award “applied to” or “covered” those employees because:

    the nature of the activities undertaken by the relevant employees of Cleanevent fall within the natural and ordinary meaning of the definition of “cleaning services industry” in cl 4.2 and, in particular, the further definition of that phase in cl 4.3 as meaning the provision of “cleaning, in connection with the staging of sporting, cultural, scientific, technological, agricultural or entertainment events and exhibitions”.

The application of the Amusement Award & most appropriate?

43    Rejected are both the submissions advanced by Senior Counsel on behalf of Cleanevent that:

    the Amusement Award also applied to the relevant employees of Cleanevent;

and, assuming that that Award did apply to those employees, that:

    the Amusement Award was the most appropriate award.

44    The former submission focussed upon an analogy sought to be drawn between the object or purpose of varying the Amusement Award in “roping off” the activities of Australia Zoo and “roping off” the activities of Cleanevent. It was submitted on behalf of Cleanevent that all that happened within the amusement, events and recreation industry – including, in particular, the cleaning of those facilities at which (for example) events were held – was to be covered by the Amusement Award.

45    To focus attention on the correct characterisation of the work of the “employer” was said to be irrelevant. If attention was focussed on the activities being undertaken by the “employees” engaged in the cleaning of those facilities, according to Cleanevent, those activities would place the employees “within the rope” intended to be covered by the Amusement Award. The written submissions filed in this Court on behalf of Cleanevent were thus expressed in part as follows:

The intention which appears from the text of the Amusement Award taken as a whole was to put a rope around the operations of the venues and events defined in subclause 4.2(a).

Whether so much appears “from the text of the Amusement Award taken as a whole” may be doubted; that intention, however, very clearly emerges from the submission advanced by the operators of Australia Zoo during the course of the hearing before Fair Work Australia. To venture too far from the text of an award, and to venture into the extent to which Fair Work Australia may be taken to have embraced submissions advanced or the reasoning urged during the course of oral submissions, is a dangerous – if not an impermissible – exercise. It was presumably to avoid this danger that Cleanevent sought to place reliance upon para [33] of the submission advanced on behalf of Australia Zoo before Fair Work Australia and to the nature of the services provided by Muscillo Holdings Pty Ltd. Before this Court the submission was as follows:

… Moreover, if the intention was to limit the operation of subclause 4.2(d) to the provision of services by a separate entity within the primary venue like those provided by Muscillo Holdings Pty Ltd as suggested by the AWU, the clause could have simply stated “For the purposes of this clause, the amusements, events and recreation industry also includes the provision of services within the primary venue such as photographic services. the sale of food, beverages and merchandising within the primary venue”.

In further support of the submission that the Amusement Award covered the employees of Cleanevent, reliance was also sought to be placed upon the fact that the employee classification structure in Schedule B to that Award covered the work of its employees. The references in Schedule B to “general cleaning duties” and “specific cleaning duties”, it was submitted, are “appropriate descriptors which capture the cleaning functions of the Respondent’s employees”.

46    If that be correct, it was then submitted that there was an “overlap” between the two awards such that the analysis thereafter required to be undertaken was to determine which was the “most appropriate”.

47    The former submission is rejected because:

    clause 4.2 does not apply in terms to employers who provide cleaning services;

    the “objective meaning” of the phrase employed in cl 4.2 – namely the definition of “amusement, events and recreation industry” – does not naturally extend to the activities undertaken by Cleanevent;

    the “objective meaning of the words” employed in cl 4.2(d), and the extension by means of that clause to those other activities to be included in the “amusement, events and recreation industry” and the examples provided, do not support a construction of cl 4.2 extending to the quite distinct activities undertaken by Cleanevent; and

    the Amusement Award, being part of the award modernisation process, is to be construed harmoniously – if possible – with the Cleaning Services Award. In the absence of clear words indicating to the contrary, the Amusement Award is not to be construed as applying to those employers covered by the Cleaning Services Award when the latter Award deals specifically – and in detail – with cleaning activities.

Such isolated references as are made – for example, in cl B.2.3 to Schedule B to the Amusement Award – and such similarity as may exist as between those classifications and the terms of the 1999 Award:

    do not vary the meaning otherwise to be given to cl 4.2.

As a matter of the construction of cl 4.2, it is further concluded that:

    clause 4.2(d) is confined in its operation to those employers who participate in the “amusement, events and recreation industry” and that cl 4.2(a) defines that industry as meaning those employers who “operate” one or other of those activities enumerated in cl 4.2(a)(i) to (xi). Clause 4.2(a), it will be noted, defines the “amusement, events and recreation industry” as meaning one or other of those activities. Clause 4.2(d) is drafted more widely, namely as “inclusive” of the examples provided. Cleanevent does not “operate” one or other of the enumerated activities. Contrary to the submission advanced on behalf of Cleanevent, to so construe cl 4.2(d) does not have the consequence that that clause has “little work to do”. So construed, cl 4.2(d) gives content to the nature of the activities that are taken to be included within cl 4.2(a).

This conclusion is also only reinforced when consideration is given to:

    the context in which cl 4.2(d) was added by variation to the Amusement Award on the application of Australia Zoo, that context indicating the acceptance on the part of Fair Work Australia that the variation sought on behalf of Australia Zoo should be granted. The nature of the activities undertaken by Muscillo Holdings Pty Ltd, and relied upon in support of the application to vary the Award, were activities undertaken within Australia Zoo; the nature of the activities undertaken by Cleanevent at many and varied venues and facilities is, with respect, in no way comparable; and

    the absence of any discernible intention in varying the Award by varying cl 4.2(d) to include those employees engaged simply in cleaning activities.

The construction urged upon the Court on behalf of Cleanevent, with respect, is “artificial” (cf. Australian Chamber of Commerce and Industry [2015] FCAFC 131 at [36] per Buchanan J). Albeit perhaps more equivocal is the context in which:

    Cleanevent, at least initially, expressed concern at the prospect that cl 4.2 as set forth in the Exposure Draft would “effectively contribute to a re-litigation of the demarcation argument between the AWU and the LHMU” but for an undisclosed reason ultimately expressed no opposition to the variation to cl 4.2(d) being advocated on behalf of the Union.

Looking at the “end product” of the terms of an award as made by the Commission, albeit considered in the context of the submissions that had been advanced, does not trespass into that area where a Court should be cautious in seeking to give effect to the “conduct of the parties” (cf. Qantas Airways; Woolworths Ltd) rather than the terms of the award as made and the natural and ordinary meaning of the terms employed.

48    The argument that the Amusement Award “applies” to or “covers” the relevant employees of Cleanevent is thus rejected.

49    It thus becomes unnecessary to resolve the latter submission advanced on behalf of Cleanevent, namely that the Amusement Award is the “most appropriate” award to “apply” to or “cover” the relevant employees. Although cl 4.9 and the Note to that clause in the Cleaning Services Award, and also cl 4.6 and the Note to that clause in the Amusement Award, expressly recognise the potential for an employer to be covered by more than one award, the latter submission would also have been rejected because:

    the classification of the relevant employees of Cleanevent, it is considered, fall more specifically – and appropriately – within the terms of the Cleaning Services Award; and

    clause 4.3 of the Cleaning Services Award specifically includes within “cleaning services industry” the provision of such services as “event cleaning”.

That conclusion, again, is only reinforced when reference is made to:

    the absence of any discernible intention on the part of the Commission that employees engaged in cleaning services were not intended to be covered by the Cleaning Services Award but by another award; and

    the fact that the acceptance of the arguments advanced on behalf of Cleanevent would run counter to the objective set forth in s 134(1)(g) of the Fair Work Act and should be rejected to “avoid unnecessary overlap of modern awards”. The argument would also not promote “simplicity” (cf. Excelior Pty Ltd [2013] FCA 638 at [54]) and runs counter to the more specific terms employed in the Cleaning Services Award.

The conclusion that the Cleaning Services Award is the “most appropriate” award to cover the activities of the employees of Cleanevent is not diminished by the fact that:

    some of the activities undertaken by those employees extend beyond mere cleaning services, including training in matters of occupational health and safety and training (where appropriate) in handling chemicals; the clearing of tables in any food court areas located at a particular venue; and the wiping down of enclosures for small animals like dogs and cats. The fact that employees engaged to provide essentially cleaning services may also be called upon to perform other services does not have the consequence that the “coverage” expressed in cl 4 the Cleaning Services Award ceases to be the “most appropriate”; or

    some classifications within Schedule B to the Amusement Award (e.g., the references to “general cleaning duties” and “specific cleaning duties”) also have potential application to cleaning activities undertaken by employees – indeed, in the absence of such references many of the arguments advanced on behalf of Cleanevent as to that Award being the “most appropriate” would fall away.

Determining which award is the “most appropriate” naturally involves an exercise of judgement. In the present case, that balance is resolved in favour of the case advanced by the Union.

CONCLUSIONS

50    Relief substantially in the form sought by the Union should be granted.

51    During the course of the hearing, reservation was nevertheless expressed with respect to two matters, namely:

    whether the form of the declaratory relief should be refined perhaps to identify more clearly the activities of Cleanevent that would be embraced by a declaration and more clearly identify those employees to be covered by the Cleaning Services Award; and

    the desirability of quickly resolving the calculation of payments to be made to employees as a consequence of their being found to be covered by the Cleaning Services Award. The desirability of avoiding any future dispute(s) was understood to be endorsed by both parties to the proceeding – as was the desirability of ensuring that such payments as are to be made can be achieved quickly.

THE ORDER OF THE COURT IS:

The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 2 February 2016.

Associate:

Dated:    24 December 2015