1 Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement Transport Workers Union of Australia v IFM Services Pty Ltd (AG2025/3243) DEPUTY PRESIDENT O'KEEFFE PERTH, 16 JANUARY 2026 Application for approval of the IFM Services RTIO Pilbara Enterprise Agreement 2024- TWU as bargaining representative objects to approval on BOOT grounds – claimed wrong award used as comparator – Passenger Vehicle Transportation Award found not to cover Applicant – objection dismissed. [1] IFM Services Pty Ltd (the Applicant) has made an application to the Fair Work Commission (FWC) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the IFM Services RTIO Pilbara enterprise Agreement 2024 (the Agreement). The Agreement would cover the Applicant’s operations where it provides residential, catering and other services to employees of Rio Tinto based in a remote area of Western Australia. The Transport Workers Union of Australia (the TWU) has objected to the FWC approving the Agreement on the basis that it does not pass the Better Off Overall Test (BOOT) with respect to those employees engaged to – amongst other duties – drive passenger buses. [2] The Agreement contains three separate classifications of employees involved in the passenger bus operations of the Applicant. These classifications are found in cl.43 – Classifications of the Agreement. The three relevant classifications are grouped together under the “Transport” stream and are listed as follows: Classification Indicative Role Titles(s) Service Attendant - Transport Bus Driver Leading Hand - Transport Leading Hand – Bus Driver Supervisor - Transport Supervisor – Bus Driver [3] The Applicant has submitted in its application for approval that the Agreement should be tested against a number of awards, including the Hospitality Industry (General) Award (HIGA). The Applicant says that the HIGA is the appropriate award for the assessment of those employees engaged in its passenger bus operations. As per the information found in the Form F17B1, it uses the “Guest Services” stream of the classification structure in the HIGA to classify Bus Drivers as Guest service grade 2. The relevant section of the HIGA defines that grade as follows (with my emphasis): “A.2.3 Guest services stream [2026] FWC 168 DECISION [2026] FWC 168 2 … (b) Guest service grade 2 (wage level 2) means an employee who has not achieved the appropriate level of training and who is engaged in any of the following: • servicing and cleaning accommodation areas; • receiving and assisting guests at the entrance to the establishment; • driving a passenger vehicle or courtesy bus; • transferring guests’ baggage to and from rooms; • assisting in the dry cleaning process; • performing cleaning duties using specialised equipment and chemicals; • providing butler services such as food, beverage and personalised guest service…” [4] Drawing again from the Form F17B, the Applicant regards the Leading Hand – Bus Driver as Guest service Grade 3 and Supervisor – Bus Driver as Guest service Grade 5. The definitions of those grades in the HIGA is as follows: “(c) Guest service grade 3 (wage level 3) means an employee who has the appropriate level of training and who is engaged in any of the following: • supervising guest service employees of a lower classification; • providing butler services such as food, beverage and personalised guest service; • carrying out major repairs to linen or clothing including basic tailoring and major alterations and refitting; • dry cleaning. … (e) Guest service supervisor (wage level 5) means an employee who has the appropriate level of training, including a supervisory course, and has responsibility for the supervision, training and co-ordination of employees engaged in a housekeeping department.” [5] In contrast, the TWU submits that the transport employees should be classified as falling within the coverage of the Passenger Vehicle Transportation Award 2020 (PVTA). If the employees were to fall under the provisions of that Award, they would be graded at PVTA Grades 4, 5 and 6. In the case of Grades 4 and 5, the proposed Agreement hourly rate is lower than the current PVTA hourly rate. The scope of the question [6] Section 48(1) of the Act provides that a modern award will cover an employer if the award is expressed to cover that employer. In the case of the HIGA and the PVTA the awards provide that they cover employers in the hospitality and passenger vehicle transportation industries – as defined - respectively. Both of the awards in question also contain the statement2 often found in modern award coverage clauses as follows: “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.” [2026] FWC 168 3 [7] The clear effect of these provisions is that if both the HIGA and the PVTA cover the Applicant, then the FWC would need to make a decision as to which classification from the two awards is most appropriate to each of the three classifications in the Agreement. In the first instance, I am satisfied that the HIGA does cover the Applicant because it is in the hospitality industry. Indeed, there appears to be no contest from the TWU that it does so, albeit with respect to classifications other than those presently under consideration. Notwithstanding this, I note for completeness my reasoning for accepting that the Applicant is covered by the HIGA. [8] In clause 4.2, the HIGA defines the hospitality industry using a list of establishments which by the use of “includes” in line one of the clauses is not intended to be comprehensive. In any case, subclause 4.2(j) lists “hostels or any other type of residential or tourist accommodation” which I regard as sufficient to cover the relevant operations of the Applicant. The Applicant provides its clients with residential accommodation with a range of relevant services such as cleaning and catering and its business is geared towards the provision of such services in an integrated fashion. Given this, I am satisfied that it is in the hospitality industry as defined in the HIGA. I note further that clause 4.4 of the HIGA specifies a number of establishments that are not covered by it but none of these is applicable to the operations of the Applicant. [9] The issue then arises as to whether the Applicant is covered by the PVTA. I note firstly that the relevant coverage provisions of the PVTA exclude certain employees but none of the Applicant’s employees fall into the excluded categories. In terms of who is covered by the PVTA, clauses 4.1 and 4.2 provide as follows: “4.1 This industry award covers employers throughout Australia in the passenger vehicle transportation industry and their employees in the classifications listed in clause 15 — Minimum rates to the exclusion of any other modern award. 4.2 Passenger vehicle transportation industry means the transport of passengers by: (a) motor vehicle, limousine or hire car; (b) bus or coach; and (c) electric tramway, monorail or light rail.” [10] The proper question therefore is whether the Applicant is “in” the passenger vehicle transportation industry as that industry is defined. It is clear that the question is not simply “does the Applicant do anything that employers in the passenger transport industry do” but rather whether the Applicant is engaged in those activities to the extent that it is part of that industry. Clearly, an employer could be engaged in some of the activities of an industry without being in the industry itself. Submissions and Evidence [11] The TWU submitted that the Applicant’s business is connected to multiple industries, including the passenger vehicle transport industry. In the alternative, it says that if the FWC was to find that the character of the Applicant’s business was substantially in the hospitality [2026] FWC 168 4 industry that it should nevertheless find that passenger transport is a secondary substantial character. The TWU further submitted that: “Upon review of the operations of Sodexo’s transport division, the regular duties of Sodexo’s Transport Employees, and classifications within both the Hospitality Award and the PVT Award, the Transport Employees are not appropriately covered by the Hospitality Award. Rather, the PVT Award is the correct award to cover Sodexo’s Transport Employees.”3 [12] The TWU drew my attention to the recent decision of Commissioner Lim in St John Ambulance Western Australia Preventative Trainers and Facilitators Enterprise Agreement 2024 (St John). In that matter, the Commissioner summarised various findings regarding award determination as follows (citations removed): (a) “The approach to interpreting award provisions is to discern the objective meaning of the words used, considering the context in which they appear and the purpose they are intended to serve. (b) An employer’s business may have more than one character and be connected to multiple industries. (c) The question of whether or not an employer is in a particular industry is a question of fact and is determined by the ‘substantial character’ of the enterprise in which it and its employees are engaged in.”4 [13] Drawing further upon this summary in St John the TWU notes that determining the “substantial character” is done by reference to the trade or business of the employer and all its employees and requires a consideration of the employer’s business as a whole.5 The TWU further cited the finding of the Full Bench in Dyno Nobel Asia Pacific Ltd v CFMEU (Dyno Nobel) where the Bench found that an employer’s business can be connected to multiple industries because: i) “The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously….; or ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character””.6 [14] The TWU submits that the Applicant’s contract with Rio Tinto requires the provision of transport between various camp and mine sites. It notes that the Applicant engages employees to perform bus driving as a principal duty7 and various ancillary tasks such as maintenance and care of buses and rubbish collection. The TWU notes that the daily tasks of a bus driver may vary but will involve a period of driving both in the morning and the evening and sometimes involve driving for the majority of the day where they are required to undertake an “airport run”. [15] The TWU’s submissions also set out details of the specific duties involved with driving – such as pre-start checks and recording passenger information – and contend that the drivers are organisationally distinct from other employees and have their own reporting structure. The [2026] FWC 168 5 submissions also outline qualification requirements, likening them to those found in major public transport providers. [16] Having addressed these issues, the TWU then goes on to examine the PVTA and the HIGA. In doing so, it notes that there is only one reference to bus driving in the HIGA, being in clause A.2.3(b). The TWU draws attention to the following wording in that particular clause (with TWU’s emphasis retained): “Guest service grade 2 (wage level 2) means an employee who has not achieved the appropriate level of training and who is engaged in any of the following…” [17] Clause 2 of the HIGA provides a definition of “appropriate level of training” as follows: “…appropriate level of training, in relation to an employee other than a casino gaming employee, means that the employee: (a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more appropriate units of competency forming part of a training package; or (b) has been assessed by a qualified skills assessor as having skills at least equivalent to those attained in an appropriate training program; or (c) as at 30 June 2010, had been doing the work of a particular classification for a period of at least 3 months.” [18] The TWU then goes on to outline the pertinent sections of the PVTA with respect to industry definition and the requirements of what it says are the relevant employee grades. Having set out the two awards, the TWU then submits that the PVTA is the relevant award for the purposes of the Applicant’s employees who drive buses. The TWU – essentially - makes the argument that due to the caveat regarding not having achieved the appropriate level of training as set out in [16] above, the HIGA Grade 2 classification cannot apply to bus drivers. [19] Rather, the TWU says that: “It is evident that a Guest service grade 2 classification is intended for employees that have not yet completed a training program that is relevant to the classification, or not yet having worked in a ‘particular classification’ for at least 3 months. Prior to commencing employment with Sodexo, a Transport Employee is required to undergo a verification of competency for bus driving ability, as well as obtain a Passenger Transport Driver’s licence and a Heavy Rigid Driver’s licence. Whilst ‘particular classification’ is not defined further in the Hospitality Award, an assessment of Guest service grade 3 suggests that the training is focused on the ability provide personalised guest services such as butler services, repairs to linen or clothing and dry cleaning.”8 [20] The TWU further submits that an assessment of the duties set out in Guest service grade 2: “…suggests that Guest service grade 2 employee is intended to cover an employee that only partly performs driving of a passenger vehicle and, generally, performs accommodation services at the hospitality site.”9 [2026] FWC 168 6 [21] The TWU then submits that, unlike the PVTA, the HIGA does not specify what types of vehicles might be driven by a Guest services grade 2 employee. It argues that the types of vehicles actually driven by employees of the Applicant are such that they are designed to carry over 25 passengers. Drawing on the evidence of its Organiser and the provisions of the PVTA, the TWU suggests that the HIGA was not intended to cover drivers of vehicles with a carrying capacity of over 25 passengers. Instead, such drivers should be covered by the PVTA because it clearly sets out the ability to drive vehicles with carrying capacity of above 25 passengers, and the drivers perform a number of other duties set out in the PVTA. [22] The TWU then goes on to – briefly - demonstrate why the Leading Hands and Supervisors are appropriately covered by the PVTA on the basis of their duties. Having done so, the TWU then turns to the issue of the Applicant being engaged in multiple industries. It notes that the Applicant, in order to fulfill its contractual obligations to Rio Tinto, has expanded beyond hospitality and into other industries. The TWU correctly notes that the Applicant concedes10 its operations are covered by the following awards: 1. Airline Operations Ground Staff Award 2020 2. Hospitality Industry (General) Award 2020 3. Manufacturing and Associated Industries and Occupations Award 2020 4. Plumbing and Fire Sprinklers Award 2020 5. Joinery and Building Trades Award 2020. [23] The TWU says that the Applicant has diversified into the industries of aviation and trade maintenance by virtue of employing employees such as airport attendants and carpenters and painters. It notes again that case precedent supports the notion of employers operating in more than one industry and draws again from Dyno Nobel where the Full Bench noted that in the case of example (i) in [13] above, the company may be in two industries because: • “There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a ‘substantial character’ that places it in each industry); and/or • The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a ‘substantial character’ within each of those industries.”11 [24] The TWU submits that if the FWC finds that the substantial character of the Applicant’s business is in hospitality, then it is still open for it to find the Applicant has a secondary substantial character of passenger transport. In support of this it cites the finding of the Full Bench in Harnischfeger v CFMEU where the Full Bench found that: “The substantial character of a business may be in or in connection with more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a ‘substantial character’ to operate as distinct businesses or enterprises within the employer’s overall operation…”12 [2026] FWC 168 7 [25] Given this finding, the TWU submits that the percentage of revenue generated by the transport area need not be the predominant item of revenue for the Applicant and that an assessment of the Applicant’s transport stream suggests that it is in the coverage of the PVTA, particularly given the work performed by the transport employees. The TWU further submits that the Applicant itself – in a case study submitted into evidence by the TWU13 - that its bus- driving and transport operations are a “massive undertaking” and that if the Applicant continues to operate 200 buses it would be a major operator of buses in Australia. [26] The Applicant submits that it is not an employer “in” the passenger vehicle transport industry. It says that its substantial character is of a provider of integrated facilities management services which falls within the hospitality industry. Where it does provide transport services, it submits that it does so only ever as an ancillary function in aid of its core hospitality offering. Further, it submits that the employees engaged in bus driving are engaged in a range of tasks and that driving buses is a minority part of their total work duties. [27] The Applicant also submits that there are no cases where it provides only transport services to a client and that it declines any invitations to provide solely transport services. Further, the Applicant submits that it provides transport services to less than thirty percent of its clients and where it does so it engages people in a “mixed function” role whereby they perform a range of other duties in addition to driving. [28] In addressing the issue of coverage of the PVTA, the Applicant expanded on the concept of being “in” the passenger vehicle transportation industry. It noted, citing Re: G.J.E Pty Ltd, that the exercise of determining if an employer is in an industry is an exercise of examining the substantial character of the business as a whole, noting that an employer can be in more than one industry.14 [29] The Applicant further submits that the proper approach drawn from case precedent is to determine the character of the industry itself and then conduct an inquiry into the relationship between the employer and that industry, based on an assessment of the employer’s character and business. It cites the comments of Allsop P - which were endorsed by Giles JA and Bell JJA – in Central West Group Apprentices v Coal Mines Insurance Ltd as follows (emphasis from submissions retained): “…[T]he task is to give context to the phrase “employers in the coal industry”. It is not the employee that is to work in the industry, but the employer must be “in” the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be “in” the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term “coal industry”; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is “in” the latter.”15 [30] In assessing the PVTA and its industry the Applicant notes that it contains no provisions of the type found in the Road Transport and Distribution Award 2020 (RTDA) where that award also contemplates coverage where transport work is performed: “…ancillary to the principal business, undertaking or industry of the employer.”16 [2026] FWC 168 8 [31] The Applicant submits five key reasons as to why its substantial character does not fall within the passenger vehicle transport industry, which are summarised as follows: 1. The Applicant’s business is one indivisible enterprise with no examples of discrete operations providing transport services. Further, transport is only one facet of the service it provides, and one that is provided in a minority of cases. 2. The core services provided are hospitality services, and the Applicant declines any invitations to provide transport services independent of hospitality services. 3. The Applicant’s revenue as a whole is derived from contracts offering its integrated services, the majority of which do not contain transport services. 4. Only 7.5 percent of the Applicant’s employees fall within transport stream classifications. 5. Those employees do not spend the majority of their time performing driving tasks but are engaged in mixed function roles.17 [32] In further submissions, the Applicant outlines its objections to the TWU’s approach. It says that while the TWU concedes that there needs to be an assessment of the employer’s business as a whole, its actual analysis fails to appropriately address this issue. The Applicant says that the correct approach is to consider not simply the tasks being performed, but rather the purpose to which those tasks are directed. It cites the findings of the Full Court in CFMEU v Duluxgroup where the Court rejected the finding that the primary function of the employee was that of forklift driver, notwithstanding that he spent the vast majority of his time driving a forklift. The Court said that the employee’s role was: “the performance of all tasks in connexion with the receiving, storing, picking and despatching of goods in the Dulux business (and, if required, to work flexibly in the paint manufacturing facility). The driving or other use of forklifts is best seen as a function directed to the end of fulfilling the purpose of Mr Lambert’s job, which is to carry out his assigned tasks necessary for the operation of the warehouse.”18 [33] The Applicant submits that the same principle applies here – the fact that the transport employees spend some of their time driving does not lead to a conclusion that the Applicant is in the passenger vehicle transportation industry. Rather, it says that the driving of buses is merely one function directed to fulfilling the broader purpose of providing a hospitality service. Further, the Applicant submits that the TWU has not meaningfully engaged with the task of identifying the nature and limits of the passenger vehicle transportation industry which is problematic given the lack of an ancillary coverage provision – such as that found in the in the RTDA – in the PVTA. [34] In response to the Applicant’s submissions, the TWU reiterates its submission that the Applicant is covered by both the HIGA and the PVTA and that a proper assessment of the roles of the transport employees demonstrates that they are most appropriately covered by the PVTA. The TWU submits that the transport employees are distinct from other employees with their own reporting structure. They are required to maintain qualifications of the type required in businesses that – presumably – operate within the passenger vehicle transportation industry. [35] The TWU refutes the Applicant’s argument that the transport employees only spend a minority of their time on driving tasks and draws upon the evidence of one of its witnesses to [2026] FWC 168 9 assert that driving is the primary set of duties that the employees undertake. The TWU submits that the non-driving duties such as rubbish collection are merely ancillary to the main role performed. The TWU further challenges the Applicant’s argument that the transport employees are integrated with other employees of the Applicant, again drawing on the evidence of one of its witnesses. It says that transport employees do not regularly interact with other employees and in the main work together and with their supervisors. [36] The Applicant provided evidence of a survey conducted across all of its operations which indicated that the average time spent on non-driving tasks by transport employees was 59%. The TWU - citing evidence from Ms Monika Rothwell - challenged this figure, claiming it was not an accurate representation of the way transport employees operated, particularly on days when they were required to undertake airport runs. [37] The TWU then turns its attention to the coverage of the PVTA and seeks to contrast the position of the Applicant with respect to this industry award with its position on the Airline Operations Ground Staff Award 2020 (the AOGSA). The Applicant concedes the coverage of the AOGSA in its Form F17B. The AOGSA is also an industry award, and in clause 4 it expresses its coverage as follows: “4.1 This industry award covers employers throughout Australia in the airline operations industry with respect to all their employees throughout Australia in the classifications listed in Schedule A —Classification Definitions and to those employees. This award applies to the exclusion of any other modern award. 4.2 Airline operations industry means operating and/or ancillary on-airport servicing of aircraft used for the purposes of: (a) providing commercial passenger or freight air transport services (whether schedule or non-scheduled); and/or (b) private business and instructional flying in, and from a base in, Australia.” [38] The TWU argues that the similarities between this clause and the equivalent clause in the PVTA are such that the Applicant would need to meet the same test with respect to its substantial character for the AOGSA to cover it. That is to say, the Applicant would need to demonstrate that it was in the airline operations industry. In addition, and drawing on the Applicant’s point at [30] above, the TWU correctly identifies that there is no ancillary coverage provision in the AOGSA. The TWU submits that as such the Applicant does not meet the coverage test with respect to the AOGSA noting that the group of employees providing that part of the service is, as with transport, small in number. Nevertheless, the Applicant concedes it is covered by that award. [39] The TWU also submits that the FWC should not confine itself to examining industry coverage but rather should also recognise the relevance of a classification analysis. In support of this proposition, it cites the finding of the Full Court in BioGiene Pty Lt v Mullan (BioGiene)19. In that matter the Court found that a cleaner working in an abattoir was covered by the Cleaning Services Award 2020 rather than the Meat Industry Award 2020. I do not intend to provide a comprehensive analysis of the TWU’s argument arising from this case. Suffice to say it does not assist their position, for reasons that I will set out in my consideration. [2026] FWC 168 10 [40] The TWU also draws upon the findings in Health Services Union v Catering Industries (NSW) Pty Ltd (HSU).20 Again, the TWU uses the case to raise the issue of examination of the appropriate classification. It submits that: “…upon assessment of both the Hospitality Award and the PVT Award, it is apparent that the PVT Award is the most appropriate award to provide coverage to the Transport Employees…”21 [41] As with BioGiene, I do not intend to traverse the findings in this case in any detail, save to say that again I do not find that they assist the TWU and I will expand upon my reasons in my consideration. The TWU then goes on to examine the duties of driving as set out in the HIGA Guest Services Grade 2 job description. It concludes that having done so, it says that it emerges that: “…driving a passenger vehicle or courtesy bus’ is an ancillary duty to a range of other hospitality-related duties, such as servicing and cleaning accommodation areas, transferring guests’ baggage to and from rooms, performing cleaning duties using specialised equipment and chemicals, and providing butler or personalised guest services. Transport Employees do not perform any of these other duties...Transport Employees spend most of their time driving buses. These buses are passenger vehicles with a carrying capacity of 25 or more passengers.”22 [42] From this the TWU concludes that clearly the HIGA was not intended to cover employees working in the roles occupied by the transport employees. The TWU then goes on to make another line of argument. It submits that even if the FWC determines that the Applicant only operates within the hospitality industry, the PVTA should still be included in the proposed Agreement. It says this is so because the Hospitality Award does not cover all of the employees within the proposed agreement. [43] The TWU outlines a number of roles in the Aviation and Trades Maintenance streams of the proposed agreement who it says have no relevant classification in the HIGA and are not covered by that Award. The TWU submits that as the Applicant has applied the AOGSA and the Manufacturing and Associated Industries and Occupations Award 2020 to cover those roles it can thus also apply the PVTA even where its substantial character is located solely within the hospitality industry. [44] With respect to the witness evidence provided for the TWU, the Applicant raised a number of objections to various parts of that evidence on the basis of relevance and the presence of opinion and hearsay. I have been mindful of those objections and will indicate my thoughts on such components of the TWU evidence that go to the question of whether the Applicant is “in” the passenger vehicle transportation industry, noting that much of the TWU evidence does not really address that issue directly. [45] The evidence for the Applicant was provided by Ms Tanja Lucic, its General Manager – Employee and Industrial Relations. Ms Lucic was cross-examined on her evidence, and I will refer to any issues arising from such cross-examination when discussing the elements of her evidence that are relevant to the issue of award coverage. [2026] FWC 168 11 Consideration [46] I take it to be uncontroversial – and indeed consistent with the approach taken in the cases raised by the TWU – that the first issue to be determined is whether the PVTA covers the Applicant. If it does, then the task for the FWC is to decide which classification from the two awards – being the PVTA and the HIGA - is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. But this assessment of the appropriate classification need only be undertaken if the PVTA covers the Applicant because the Applicant is in the passenger vehicle transportation industry. [47] In the first instance, I propose to deal with the arguments made by the TWU that I regard as providing no support to their argument that the PVTA covers the Applicant, noting that I do so in no particular order. I begin with the assertion found in [11] above that reviewing (a) the operations of Sodexo’s transport division, (b) the regular duties of Sodexo’s Transport Employees, and (c) the classifications within both the Hospitality Award and the PVT Award leads to a conclusion that the transport employees are not covered by the HIGA but rather are covered by the PVTA. [48] It seems to me that this analysis is flawed. Firstly, the issue is not whether the employees are covered by the PVTA, but whether the Applicant is covered – see [29] above. Secondly, in making this analysis, item (c) above is irrelevant. The TWU’s argument suggests award coverage – as opposed to which of two awards covering an employer has the most appropriate classification for a particular job – is to be assessed by comparing the classifications in the two awards. In HSU the Court made it clear that in deciding award coverage where there are multiple awards under consideration: “In each case, coverage is to be assessed solely by reference to the award’s terms.”23 [49] If the employer is covered by both awards, then an analysis of which contains the most appropriate classification is undertaken. However, the FWC cannot decide that award A displaces award B because it has a classification that more neatly fits a particular job if the employer is not covered by award A. Item (b) suffers from a similar problem – it is looking to what the transport employees are doing, rather than whether the employer is in the industry. Determining coverage of an industry award is not achieved by observing that the employer in question has employees performing the sort of work contemplated by the award in question. [50] Clearly, without any such work it would be difficult to establish coverage. However, the analysis needs to focus on whether the work, in the context of the employer’s business as a whole, can be said to be a substantial part of the business such that the employer is engaged in the industry. In that regard item (a) as stated in the TWU submissions is also of no assistance. Looking at the transport division in and of itself is not the task: the task is to examine the transport division in the overall context of the total operations of the Applicant. [51] I also reject any line of argument suggesting that as the HIGA cannot properly cover the jobs performed by the transport workers, the PVTA should apply. The TWU goes to some lengths to demonstrate that the HIGA does not have the capacity to properly cover the transport employees – see [20], [21], [41] and [42] above. Even if that argument is correct, it does not [2026] FWC 168 12 follow that the PVTA therefore applies. The PVTA only applies if the Applicant is captured by its coverage provisions. While it may have a more comprehensive classification structure for transport employees than the HIGA, that is not relevant if the Applicant is not covered by it. [52] I should comment here about the findings in HSU and BioGiene. In BioGiene the scenario facing the Court was an employee – Mr Mullan - of a cleaning services contractor – BioGiene - who was working as a cleaner in an abattoir owned by a third party. BioGiene had been applying the provisions of the Meat Industry Award (MIA) to Mr Mullan’s employment and he claimed he should be paid under the Cleaning Services Award (CSA). Both awards are industry awards and in essence cover employers who are in those industries. I do not intend to traverse the entirety of the decision. However, the Court undertook the orthodox approach by asking the question “is BioGiene in the meat industry?” [53] The Court concluded that the essential character of BioGiene’s business was such that it was not an employer in the meat industry. Having made that decision based on the essential nature of BioGiene’s business – which was as a cleaning services provider covered by the CSA, the Court stated as follows: “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.”24 [54] This approach demonstrates that the task is first to determine award coverage by examining the coverage provisions of the award. In the present matter, and in BioGiene, the awards under consideration are industry awards covering employers in the industry. If the employer is not in the industry, it is not covered and there is no further analysis of that particular award needed. While the Court in Biogiene subsequently went on to examine the most appropriate classification from the two awards in question, as it specifically stated, it did not need to do so. [55] The same issue arises with HSU. In this matter, the Full Court found that the primary judge had erred in his reasoning by – essentially - conducting something of a comparison of the awards and deciding that one award applied to the exclusion of the other due to its terms. As with BioGiene, the Full Court made the observation that when examining award coverage where multiple awards may apply: “In each case, coverage is to be assessed solely by reference to the award’s terms.”25 [56] The Full Court then undertook the task of determining whether the Aged Care Award covers the employer by first examining the coverage provisions. These provide that the award applies to employers in the aged care industry as defined. The Full Court states that: “The reference in cl 4.1 of the Aged Care Award to “employers…in the aged care industry” is properly to be construed in an equivalent way. It is a phrase that is apt to describe employers that operate businesses or undertakings the substantial character of which suffices to situate them “in” the aged care industry. Resolution of the central issue with which this appeal engages thus turns upon analyses of the essential elements [2026] FWC 168 13 that constitute the “aged care industry” (on the one hand) and of the nature of Catering Industries’ undertaking (on the other).”26 [57] The Full Court’s assessment was that due to its substantial character the employer was not properly classified as being in the aged care industry. It stated as follows: “If the Aged Care Award were expressed to cover employers that operate “in or in connection with” the aged care industry, then the position might be quite different. But the present inquiry involves no such analysis. It starts and ends with consideration of whether Catering Industries is “in” the aged care industry. It is not. With that stated, the following conclusions emerge. Catering Industries is not an “employer[ ]in the aged care industry” for the purposes of cl 4.1 of the Aged Care Award. That award covers neither it nor the Catering Employees. The factual and legal bases that were said to underpin the HSU’s claim to declaratory relief are not established and the decision of the primary judge to refuse that relief on that basis was not a product of error. The conclusions just stated suffice to dispose of the appeal in its entirety and it is not strictly necessary to consider the other questions to which the parties’ submissions were directed. Nonetheless and in deference to the efforts that the parties made in advancing what they advanced, the following observations should be made.”27 [58] Once again, the case effectively ends with a finding that the employer is not in the industry – an analysis made on the basis of its substantial character. While the Full Court then went on to look at which classification from the two awards in question was most appropriate, it noted – as did the Full Court in BioGiene – that it was under no compulsion to do so and essentially performed the tasks in deference to the efforts of the parties in addressing the matter. [59] From all of the above it seems clear that any argument about coverage of the PVTA which is premised on an analysis of the HIGA is flawed. Whether the Applicant is covered by the PVTA must rest solely on an examination of the coverage provisions of that award. Even if it is proven that the HIGA does not apply to the transport employees this will not establish that they are covered by the PVTA. I should comment on a similar line of argument advanced by the TWU. [60] As discussed at [38] above, the TWU submits that a proper analysis of the coverage requirements of the AOGSA – being that the employer needs to be in the airline operations industry – would, based on the same arguments made by the Applicant about the PVTA, conclude that the Applicant is not in that industry. The TWU notes that the Applicant concedes it is covered by the AOGSA and so – presumably by implication – the Applicant should be covered by the PVTA – or at the very least there is no impediment to PVTA coverage. [61] I do not find any merit in this line of argument. Leaving aside for a moment that the AOGSA does have an ancillary coverage provision – albeit in terms different to the RTDA - if it is truly the case that the AOGSA does not cover the Applicant, then that is the extent of the effect of that fact. The AOGSA would not apply, but neither would the PVTA. If the Applicant has erroneously adopted the AOGSA, that has no effect on whether the PVTA applies. As noted previously – and repeatedly - it is the case that to determine if an award covers an employer the [2026] FWC 168 14 FWC needs to look only at the award in question, and it either covers the employer or it does not based on its provisions. Comparisons with the rationale for – or correctness of – the adoption of other awards is irrelevant. If the AOGSA does not cover the Applicant as the TWU submits there may be some consequences of this, but it is not necessary to examine those consequences as part of this matter. [62] Another line of argument advanced by the TWU which is related to some of the arguments above is the distinct nature of the transport workers. The TWU submits that they have their own reporting structure, have different qualification requirements and tend to operate in such a way as to not interact with non-transport employees. Whether the transport employees have these particular characteristics or not does not address the issue of whether the Applicant is in the passenger vehicle transportation industry. As with some of the other arguments made, it may have some bearing on which classification is most appropriate if both awards apply, but it does not assist in determining if the Applicant is covered by the PVTA. [63] Another argument that would have some bearing on the most appropriate classification for the various employees is the amount of time spent on each particular task. On this matter, the parties had conflicting evidence. A simple summary is that the Applicant’s position was that transport employees spent less than fifty percent of their time on driving duties. The TWU’s position was that more – and sometimes significantly more – than fifty percent of time was spent on driving duties. [64] However, for the purpose of determining whether the Applicant is in the passenger vehicle transportation industry, I do not regard it as necessary to resolve that dispute. The analysis to undertake is to assess the character of the Applicant’s business as a whole. I believe that this can be done using the evidence discussed below about the overall operations without determining the exact percentage of each employee’s time spent driving. Suffice to say, it is not 100 percent, but it would not be determinative even if it were. Again, this is an issue that may well be relevant in determining the appropriate classification when comparing the two awards, but our analysis has not yet reached that point. [65] I then come to the submissions and evidence about the essential character of the Applicant’s business operations. Much of the TWU evidence in this regard was hearsay and opinion. The TWU did submit into evidence a study28 dated 2021, which dealt with a driver safety program implemented by Sodexo. I note that the Applicant is part of the broader Sodexo Group of companies but is an independent business. The study stated that, as at the time of its preparation, Sodexo had a fleet of 200 buses. The TWU suggests that this makes the Applicant a significant player in the passenger vehicle transportation industry. [66] I am inclined to be very careful in my treatment of this study. The TWU attempted to cross-examine Ms Lucic on its contents, but it emerged that she was not aware of the document or its history or genesis. I also note that it is roughly five years old and as observed by the Applicant, applies to Sodexo rather than the Applicant itself. I also made the observation to the parties at hearing that it was a document designed to highlight a safety program rather than to provide accurate details of the operations of Sodexo. For example, it speaks of a “200-strong bus fleet”, “moving 1500 people on a typical morning” and “completing 800 journeys per day”. These are all round numbers and to me suggest that they may well be approximations. I also note that the study speaks of bus capacity – being 63 seats – that appears to be larger than any [2026] FWC 168 15 of the buses operated by the Applicant. Finally, the author of the study was not called to be cross-examined on its contents. [67] As such, I am not prepared to attach any great significance to the figures found in the study. Instead, I am minded to turn to the material annexed to the statement of Ms Lucic showing a breakdown of its workforce by employee classifications29. These figures were discussed but not challenged by the TWU during the cross-examination of Ms Lucic and I am prepared to accept that they provide a fairly accurate picture of the spread of employees between various streams of work. The other items of evidence from Ms Lucic which were not challenged were that transport services are only provided in less than thirty percent30 of the Applicant’s contracts with clients and that it does not seek or provide transport-only services31. [68] The breakdown of the Applicant’s workforce by employee classifications shows that 291 employees out of 3,867 are in transport roles – being just slightly more than 7.5 percent. While this figure varies – to zero in some cases and to 12.95 percent in the case of the Rio Tinto sites – even in the highest instance I do not believe it can be said to rise to a significant portion of the operations. The figures are a simple headcount and – as far as can be determined – not based on “full time equivalent” basis. It may thus be argued that some of the cleaning and catering staff may be part-time which might skew the figures. It should however be remembered that the transport employees do not spend 100 percent of their time on driving duties and as such, it is difficult to determine the exact percentage of the total labour spent on each classification. Given this, I have adopted the percentages which are able to be calculated. [69] Notwithstanding this, I note again the unchallenged evidence that less than thirty percent of the Applicant’s contracts have a transport component. Put another way, the vast majority of its contracts and thus its overall business does not engage with transport services at all. This appears to me to weigh against a finding that the Applicant is in the passenger vehicle transportation industry. I note also the unchallenged evidence from Ms Lucic that the Applicant does not seek to – and actively avoids - engaging in transport only operations and essentially provides them only when it is a requirement of a contract. [70] This raises an interesting question as to whether an employer can be in an industry even though it does not wish to be. I suspect the answer is that it can – the test (again) is what is the essential character of the employer’s business operations. In this particular case, I am persuaded that the Applicant is probably seeking to avoid any serious engagement with the passenger vehicle transportation industry but in any case, its operations are such that those operations are very much an ancillary part of what the business is actually doing. Put simply, the Applicant is in the hospitality industry and not in the passenger vehicle transportation industry. Such transport work as is done is merely ancillary to the Applicant’s substantial character. There being no ancillary coverage provisions in the PVTA, I cannot accept that the Applicant can be covered by that award. [71] I should make one further observation. The TWU has made arguments about why the HIGA cannot cover any of the transport employees. I do not accept that this is the case for the employees engaged as bus drivers. While the TWU makes much of the fact that the buses driven are large in terms of seating capacity, there appears to me to be no impediment in the relevant classification in the HIGA to driving such buses. The relevant section of the classification reads: [2026] FWC 168 16 “driving a passenger vehicle or courtesy bus”32 [72] This does not appear to place any limitations on the type or size of the bus or passenger vehicle. The TWU also draws upon the provision in that classification description that reads as follows (my emphasis): “Guest service grade 2 (wage level 2) means an employee who has not achieved the appropriate level of training and who is engaged in any of the following…”33 [73] The TWU points to the lack of training and contrasts this with the training and certification needed to drive a large bus on the road. While this argument is interesting, it is clear to me that the intention of the wording is not exactly as the TWU suggests. For example, the classification includes – in addition to drivers of passenger vehicles and buses – a range of other jobs. One is described as follows: “performing cleaning duties using specialised equipment and chemicals”34 [74] It is to be assumed that the HIGA is not suggesting that people should undertake such duties without the appropriate level of training, which would appear to be a breach of work health safety obligations. Rather, I suspect that the caveat about training is to distinguish the jobs in wage level 2 from the HIGA’s higher-graded jobs performing the same work. For example, wage level 2 has a role of “assisting with the dry-cleaning process” and wage level 3 has the role of “dry cleaning”. [75] Regrettably, not all of the roles in wage level 2 have an obvious successor role and the driver role falls into this category. Nevertheless, it does not fall to me to conduct any detailed review of the award provision: suffice to say I do not accept the argument advanced regarding such training as would be required to safely and lawfully undertake the relevant tasks. Given this, I believe that wage level 2 is the appropriate HIGA level for the bus drivers. I also take the view that wage level 3, which includes a role described as: “supervising guest service employees of a lower classification” can be utilised for the Leading Hand bus drivers. This role description seems to be appropriate for the work that they do as leading hands in the transport stream. [76] The position that creates an issue is the Supervisor role. The Applicant places these roles at wage level 5, which the HIGA defines as (my emphasis): “…an employee who has the appropriate level of training, including a supervisory course, and has responsibility for the supervision, training and co-ordination of employees engaged in a housekeeping department.”35 Clearly transport is not a housekeeping department and so these employees may well be award- free or covered by the Miscellaneous Award 2020 (MA). However, I am satisfied that there is no issue with the BOOT as the TWU itself acknowledges that these employees are paid at a [2026] FWC 168 17 base rate above the HIGA wage level 5 which is a higher rate than the relevant rate in the MA. As such, I do not propose to deal with this matter any further. Conclusion [77] For the reasons set out above, I do not find that the Applicant is in the passenger vehicle transportation industry. Not being in that industry, it is not covered by the PVTA. As such, there is no need to determine which of the PVTA or the HIGA contains the most appropriate classification, and I do not intend to do so. Given this, the TWU’s objection to the FWC approving the Agreement on BOOT grounds is dismissed. [78] Note that a decision dealing with approval of the Agreement will issue separately. DEPUTY PRESIDENT Appearances: For the Applicant: Mr A. Pollock, of Counsel Mr D. White, Solicitor, Mills Oakley For the Respondent: Mr L. Slaney, Legal Representative, Transport Workers Union Hearing details: Monday, 8 December 2025, By Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR795952> 1 See Court Book at page 28. 2 See HIGA at cl.4.5 and PVTA at cl.4.6. 3 See TWU Submissions page 2 at [7]. 4 St John Ambulance Western Australia Preventative Trainers and Facilitators Enterprise Agreement 2024 [2025] FWCA 2035 at [96]. 5 Ibid. 6 Dyno Nobel Asia Pacific Ltd v CFMEU PR956868 at [51]. [2026] FWC 168 18 7 See TWU Submissions page 6 at [23]. 8 Ibid page 13 at [48]. 9 Ibid page 13 at [51]. 10 See for example Form F17B at question 8. 11 Dyno Nobel at [51]. 12 Harnischfeger of Australia Pty Ltd v CFMEU [2005] AIRC890 at [86]. 13 See Court Book at pages 286-294. 14 See Re: G.J.E Pty Ltd [2013] FWCFB 1705 at [18]-[20]. 15 Central West Group Apprentices v Coal Mines Insurance Ltd [2008] NSWCA 348 at [37]. 16 Road Transport and Distribution Award 2020 at clause 4.2(a). 17 See Applicant Submissions page 8 at [25]-[29]. 18 CFMEU v Duluxgroup (Australia) Pty Ltd [2022] FCAFC 101 at [44]. 19 BioGiene Pty Lt v Mullan [2022] FCAFC 73. 20 Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82. 21 See TWU Reply Submissions page 9 at [55]. 22 Ibid page 10 at [59]-[60]. 23 HSU at [49]. 24 See BioGiene at [40]. 25 See HSU at [49]. 26 Ibid at [61]. 27 Ibid at [93]-[95]. 28 See Court Book at pages 286 – 294. 29 See Court Book at page 88. 30 See witness statement of T. Lucic page 4 at [18]. 31 Ibid at [17] and [19]. 32 See HIGA at A.2.3(b). 33 Ibid. 34 Ibid. 35 See HIGA at A.2.3(e).