Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union v. Spotless Services Australia Limited [2005] NSWIRComm 1229 APPLICANT Australian Workers' Union PARTIES: RESPONDENT Spotless Services Australia Limited FILE NUMBER(S): 5865 of 2005 CORAM: Connor C award variation - cleaning in the steelworks - outsourcing - preservation of steelworks wages and conditions of employment - special case principles - test case - position of an intervener in proceedings - operative date for variation of award CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Re Special Constables (Police Department) Award (1956) AR 880 Spotless Services BlueScope Steel Site Cleaning Award Case [2003] NSWIRComm 456 CASES CITED: State Wage Case (2005) 142 IR Transport Industry Waste Collection and Recycling Award Case (No.2) (2001) 103 IR 322 HEARING DATES: 12/22/2005 EXTEMPORE JUDGMENT DATE : 12/22/2005 APPLICANT Andy Gillespie Australian Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Joseph Moses McCarthy Ausgroup Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 22 December, 2005 Matter No IRC 5865 of 2005 Australian Workers' Union and Spotless Services Australia Limited Application for variation of the Spotless Services BlueScope Steel Site Cleaning Award DECISION [2005] NSWIRComm 1229 1 The Australian Workers' Union has lodged an application for a variation of a State award - the Spotless Services BlueScope Steel Site Cleaning Award - to cover employees engaged by Spotless Services Pty Limited in a new contract for the cleaning of the slab yard of BlueScope Steel (AIS) Pty Limited at Port Kembla (and by extension to other employees of Spotless who may be involved in cleaning in the steelworks). The work of cleaning the slab yard was previously performed by BlueScope Steel but it has been outsourced by it and Spotless Services will now perform the work. I understand that Spotless has recruited six of the employees of BlueScope Steel and they not unnaturally wish to preserve their existing steelworks entitlements, rather than the reduced commercial rate and conditions applying generally to cleaner, ie under the terms of the Cleaning and Building Services Contractors (State) Award. 2 The Spotless Services BlueScope Steel Cleaning Award was made by a Full Bench of the Commission (Walton J - Vice President, Grayson DP and Bishop C) in its unreported ex tempore decision of Tuesday, 9 December, 2003 in the Spotless Services BlueScope Steel Site Cleaning Award Case [Matter No.IRC 1315 of 2003]. It was confined to employees of Kembla Site Services (KSS), a division of BlueScope Steel, but that function was outsourced to Berkeley Challenge (now Spotless Services). There was a process put in place whereby existing KSS employees would be given an opportunity to either take up employment with the new cleaning contractor or benefit from the BlueScope Steel voluntary redundancy policy. For those employees of KSS who took up the work for Berkeley Challenge, the decision the Full Bench was to preserved the steelworks conditions of employment and wage levels for them in place of the rates and conditions under the Cleaning and Building Services Contractors (State) Award. 3 This AWU application was preceded by an earlier notification of an industrial dispute under S.130 of the 1996 Industrial Relations Act by the AWU. That S.130 notification was directed against Bluescope Steel (AIS) Pty Limited over the conditions for the outsourcing of the cleaning of the slab yard. Whilst Spotless Services had indicated its preparedness to pick up the existing BlueScope Steel cleaning staff to perform the work, BlueScope Steel had opposed the preservation of the existing steelworks wage levels and conditions of employment that they had formerly enjoyed. The matter came before me for a conference on Monday, 20 June, 2005 in the Commission's premises at 90 Crown Street, Wollongong and stood over generally. It was revived at the request of the AWU on Tuesday, 23 August, 2005 and again stood over generally. 4 The current application for the variation of the Spotless Services BlueScope Steel Site Cleaning Award came before me for a mention on Friday, 2 December, 2005 (in the Commission's premises at 90 Crown Street, Wollongong) and ultimately for hearing on Thursday, 22 December, 2005 (in Sydney). Mr Gillespie represented the AWU in the hearing. He regarded the variation as simply a natural extension of the decision of the Full Bench in the Spotless Services BlueScope Steel Site Cleaning Award Case. He pointed out the Spotless Services cleaning staff for the slab yard would work in contact with the other cleaning staff and it would be inequitable for them to receive a different rate of pay and conditions of employment. Mr Moses represented Spotless Services in the hearing. He opposed the AWU application, pointing out that the slab yard cleaning staff were not KSS employees and, since the Spotless Services BlueScope Steel Site Cleaning Award covered KSS employees alone, there was no obligation on Spotless Services to extend that State award to cover them. 5 BlueScope Steel, which had originally opposed the preservation of the wages and conditions of the employees in the S.130 proceedings, did not appear in the current hearing on the AWU application. In any event, BlueScope Steel is not a party to the relevant State award. When it outsourced that cleaning work, it has confined its role in these proceedings to an intervener only. That is a more limited role. As the Full Bench (Wright J - President, Hungerford J and Patterson C) indicated in the Transport Industry Waste Collection and Recycling Award Case (No.2) (2001) 103 IR 322 at pp.326 and 327]: "...Once the commissioner held, as we consider he correctly did, that the appellants were not parties to the proposed award, then the only role they could have in the proceedings was as an intervener...Two clear principles emerge from the cases and it is sufficient, so far as authorities are concerned, to refer to those set out in the well known judgement in Re Special Constables (Police Department) Award (1956) AR 880. For present purposes, it is sufficient to state the relevant principles as having two aspects: first, that the role of an intervener is limited and is subject to the exercise of the Commission's discretion as to that role; and, secondly, that an intervener has no right to call evidence or to cross-examine witnesses..." 6 It is agreed by Mr Gillespie and Mr Moses that this application does not raise any special case considerations. The Test Case Standards principle of the current wage fixation principles flowing from the decision of the Full Bench of the Commission [Wright J - President, Walton J - Vice President, Harrison and Sams PP and Boland J] in the 2005 State Wage Case (2005) 142 IR 337 at p.353 is in the following terms: "Test case standards established and/or revised by a Full Bench of the Commission may be incorporated into an award in accordance with the Act. Where disagreement exists as to whether a claim involves a test case standard, those asserting that it does must make an application for a special case." In any event, I am satisfied that, whilst the decision of the Full Bench in the Spotless Services Steelworks Site Cleaning Award Case is referred to as a "...Statement of the Commission..." it is nevertheless a "decision" and, for all practical purposes, a "test case" within the meaning of the Test Case Standards principle. Consequently, the current AWU application may proceed before me. 7 I am satisfied that Mr Gillespie's description of the AWU application - as a natural extension of the existing Spotless Services BlueScope Steel Site Cleaning Award - is correct. To extend the original Spotless Services Steelworks Site Cleaning Award to the slab yard cleaners is, in my opinion, clearly consistent with the spirit of the Full Bench decision in the Spotless Services Steelworks Site Cleaning Award Case. Historically, work within the confines of the steelworks has been regarded as distinct from other employment areas. I see no reason to distinguish the slab yard cleaners in that respect. I grant the AWU application to extend the State award to cover the slab yard cleaners in the steelworks and other cleaning staff engaged by Spotless Services within the confines of the steelworks. 8 The AWU application was lodged on Tuesday, 15 November, 2005 and, by virtue of S.15(2), that is the earliest date available to me as an operative date for the variation. The Spotless Services Steelworks Site Cleaning Award shall be varied from the beginning of the first pay period to commence on or after Tuesday, 15 November, 2005. However, I understand that Spotless Services has agreed to pay the rates from an earlier date by administrative action and that approach also has my support. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.