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Industrial law – determination of modern award application…

…appeal from the South Australian Employment Court

In BioGiene Pty Limited v Mullan [2022] FCAFC 73 (9 May 2022), the Full Bench of the Federal Court (Charlesworth, O’Callaghan and Snaden JJ) determined the modern award coverage of a cleaner employed in an abattoir.

Mr Mullan is employed by BioGiene Pty Ltd (BioGiene) as a cleaner at an abattoir in Bordertown, in regional South Australia. On 10 February 2021, the South Australian Employment Court (SAEC) awarded Mr Mullan $1654 in wages payable pursuant to the Cleaning Services Award 2010 (CSA)by BioGiene (at [1]).

Mr Mullan had successfully argued that his employer had failed to pay him what he was owed pursuant to the CSA and, therefore, pursuant to s323(1) of the Fair Work Act 2009 (Cth) (FW Act) (at [3]).

BioGiene argued that the CSA did not apply to Mr Mullan’s employment and that instead Mr Mullan was employed under the Meat Industry Award 2010 (MIA). BioGiene contended that it had paid Mr Mullan as required under the MIA and, therefore, had not contravened s323(1) of the FW Act (at [4]).

The MIA covers ‘employers throughout Australia in the meat industry’ (at [24]). Before the SAEC, BioGiene accepted that it was covered by the CSA but argued that BioGiene was also covered by the MIA when BioGiene undertook cleaning work at the Bordertown abattoir (at [16]).

Before the Full Bench of the Federal Court, BioGiene continued to make similar arguments. BioGiene argued that it should be regarded as an employer “in the meat industry” when BioGiene was contracted to provide cleaning services in an abattoir (at [24]).

The Full Bench of the Federal Court rejected these arguments. The Full Bench did not accept that an employer could be regarded as ‘in the meat industry’ pursuant to the MIA merely because it had employees who performed work at a physical location like a meat processing facility. Rather, the employer needed to be concerned with the performance of work associated with the meat industry, namely the manufacturing, processing or retailing of meat (at [32]).

The Full Bench then considered whether BioGiene could be regarded as in the meat industry pursuant to the MIA because its provision of the cleaning of a meat processing establishment could qualify as a “related activity conducted . . . as an ancillary part of” the abattoir (at [12] and [33]). The Full Bench did not accept this argument either.

The Full Bench held that the cleaning needed to be “related” to the primary activities of “killing, dressing, boning, slicing, preparation, and/or packing of fresh meat” under the MIA. The Full Bench held that this was not so (at [36]). The Full Bench did not accept that it was sufficient for the cleaning to be ancillary to the business of meat processing generally (at [35]).

The Full Bench concluded that the MIA did not cover BioGiene as had been held by the SAEC (at [39]). The Full Bench held: “Mr Mullen is properly understood to have worked as a contract cleaner in an abattoir; not as an abattoir worker who performed cleaning works” (at [53]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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