1
Fair Work Act 2009
s.604—Appeal of decision
The Australasian Meat Industry Employees Union
v
Woolworths Limited trading as Brismeat
(C2014/8319)
SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER SPENCER
MELBOURNE, 4 MARCH 2015
Appeal against decision [[2014] FWC 8620] of Deputy President Asbury at Brisbane on
1 December 2014 in matter number C2014/3153 - rail allowance - paid leave payments.
Introduction
[1] The Australasian Meat Industry Employees Union (AMIEU) has appealed a decision
of Deputy President Asbury of 1 December 20141 in respect of an application made by them
for the Fair Work Commission (FWC) to deal with a dispute pursuant to the Woolworths
Limited - Brismeat, Queensland and the Australasian Meat Industry Employees’ Union
Agreement 20112 (2011 Agreement). The dispute concerned whether the “rail allowance” in
clause 3.1.1 of the 2011 Agreement is payable to a Table Butcher to whom the
2011 Agreement applies when on paid leave.
[2] The 2011 Agreement was approved by the FWC on 2 June 2011 to operate from
9 June 2011. The 2011 Agreement has a nominal expiry date of 18 May 2014.
[3] The dispute application before the Deputy President was made pursuant to the
grievance procedure in the 2011 Agreement.
[4] The Deputy President concluded to the effect that the “rail allowance” in clause 3.1.1
of the 2011 Agreement is not payable to employees to whom the 2011 Agreement applies
when on annual or other forms of paid leave.3
[5] On hearing the appeal, we granted the respondent to the appeal, Woolworths Limited
trading as Brismeat (Brismeat) permission to be represented by a lawyer pursuant to
s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act). We considered such representation
would enable the matter to be dealt with more efficiently taking in to account the complexity
of the errors of law and fact submitted in the notice of appeal.
[2015] FWCFB 1004
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 1004
2
Grievance procedure
[6] The grievance procedure in the 2011 Agreement is as follows:
“2.2 GRIEVANCE PROCEDURE
2.2.1 A grievance between an employee and the Company, including a grievance in
relation to the NES (except a dispute about clause 8.5 of this agreement
(flexible working arrangements) or whether the Company has reasonable
business grounds under subsection 65(5) and 76(4) of the FW Act) (‘matter’)
should be discussed in the first instance between the employee and the
employee’s line manager.
2.2.2 If the matter is still not resolved the employee may then raise the matter with
the relevant Senior Operations Manager and Human Resources Manager. At
this stage the employee has the option of enlisting the support of a
representative who may be a union representative.
2.2.3 If the matter is not resolved the employee and/or their representative may then
refer the matter to the relevant General Manager and Divisional Human
Resources Manager.
2.2.4 If the matter has still not been resolved either party may refer it to FWA for
conciliation.
2.2.5 If the matter is still not resolved the employee may raise the matter with the
relevant General Manager and Director of Human Resources. In instances
where the employee elects to be represented by the Union, the National
Secretary of the Union shall represent the employee in discussions with the
Company’s relevant General Manager and Director of Human Resources.
2.2.6 If after Step 5, there is still no resolution and the Company’s Director of
Human Resources and the employee agree or, in instances where the employee
elects to be represented by the Union, the Company’s Director of Human
Resources and the National Secretary of the Union agree, the matter may
proceed to arbitration by FWA.
2.2.7 If arbitration is necessary FWA may exercise the procedural powers in relation
to hearings, witnesses, evidence and submissions in line with the FW Act
which are necessary to make the arbitration effective.
2.2.8 The decision of FWA will bind the parties, subject to either party exercising a
right of appeal against the decision.
2.2.9 It is a term of this agreement that while the grievance resolution procedure is
being conducted work shall continue as normal before the dispute arose unless
an employee has a reasonable concern about an imminent risk to his or her
health or safety.”
[2015] FWCFB 1004
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Relevant clauses in the 2011 Agreement
[7] The clauses in the 2011 Agreement which are particularly relevant to the dispute are
set out below.
[8] Clause 1.6.6 defines a “Table Butcher” as follows:
“1.6.6 TABLE BUTCHER means any person employed as a butcher working at the
table positions on the boning chain. Classified as a BRISMEAT Level 9
Employee. A rail allowance is paid for duties performed on the rail.”
[9] Clause 3.1.1 provides for the “rail allowance” as follows:
“3.1.1 Table Butchers shall receive an allowance for each day they are employed
boning beef on the rail as outlined in the Section 3.5 Wages. This allowance is
to proportionally increase with wage increase.”
[10] The classification structure is set out in clause 3.4 as follows:
“3.4 CLASSIFICATIONS
3.4.1 Brismeat Level 1
Employees at this level perform tasks as contained in the definitions for the
following roles:
Tray Packing Labourer
3.4.2 Brismeat Level 2
Employees at this level perform tasks as contained in the definitions for the
following roles:
General Labourer
3.4.3 Brismeat Level 3
Employees at this level perform tasks as contained in the definitions for the
following roles:
Dock Labourer; Offal Room Labourer.
3.4.4 Brismeat Level 4
Employees at this level perform tasks as contained in the definitions for the
following roles:
General Standards Officer (QA); Linker.
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3.4.5 Brismeat Level 5
Employees at this level perform tasks as contained in the definitions for the
following roles:
Offal Knifehand; Follow-on Labourer (Boning Room); General Knifehand;
General Bandsaw.
3.4.6 Brismeat Level 6
Employees at this level perform tasks as contained in the definitions for the
following roles:
Mixer; Retail Ready Butcher; Dry Goods Forklift Driver.
3.4.7 Brismeat Level 7
Employees at this level perform tasks as contained in the definitions for the
following roles:
Saw/Bandsaw Operator (Boning Room); Dock Forklift Driver; Boning Room
Standards Officer.
3.4.8 Brismeat Level 8
Employees at this level perform tasks as contained in the definitions for the
following roles:
Follow on Knifehand (Boning Room).
3.4.9 Brismeat Level 9
Employees at this level perform tasks as contained in the definitions for the
following roles:
Table Butcher”
[2015] FWCFB 1004
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[11] Wage rates are contained in clause 3.5 as follows:
“Effective from
16th May 2011
Effective from
14th May 2012
Effective from
20th May 2013
Level Description Full Time
per Week
Full Time
per Hour
Full Time
per Week
Full Time
per Hour
Full Time
per Week
Full Time
per Hour
9 Table Butcher 919.85 24.2065 952.04 25.0537 985.36 25.9306
8 Follow On Knifehand (Boning Room) 809.05 21.2908 837.37 22.0360 866.68 22.8073
7 Saw and Bandsaw Operator (Boning
Room); Dock Forklift Driver; Boning
Room Standards Officer
768.42 20.2217 795.32 20.9295 823.16 21.6620
6 Mixer; Ready Retail Butcher; Dry
Goods Forklift Driver
754.74 19.8617 781.16 20.5569 808.50 21.2764
5 Follow on Labourer (Boning Room);
General Knifehand; Offal Knifehand;
General Bandsaw
744.44 19.5904 770.49 20.2761 797.46 20.9858
4 Linker; Gen Standards Officer (QA);
General Printerm
722.28 19.0073 747.56 19.6726 773.72 20.3611
3 Dock Labourer; Offal Room Labourer 694.81 18.2844 719.13 18.9244 744.30 19.5868
2 General Labourer 688.11 18.1082 712.20 18.7420 737.12 19.3980
1 Tray Packing Labourer 646.82 17.0216 669.46 17.6174 692.89 18.2340
Allowances
Rail Allowance for Table Butcher on the rail
per 7.6 hour day worked
11.30 per day 11.70 per day 12.11 per day
Rail Allowance for Table Butcher on the rail
per 8 hour day worked
11.89 per day 12.31 per day 12.74 per day
Hard Beef Allowance (Beef Input Scales
Operator) for Follow on Labourer per day
worked
9.49 per day 9.82 per day 10.16 per day
Manual Printerm Allowance (in the absence of
mechanical assist labeller) for Follow On
Labourer per day worked
2.06 per day 2.13 per day 2.20 per day
Junior Rate Age
Classification
Percentage of the
Applicable rate
Morning and Afternoon Shift Allowance 15% on base ordinary rate
16 years and under 70%
17 years 75% ‘B’ rate to apply for new
employees
94% of base ordinary rate
18 years* 85%
* A junior (only 18 years and over) shall be paid at 100% of the adult rate if they have been declared competent
and are required to perform any follow-on task in the Boning Room.”
[12] Various leave provisions are set out in Part 5 of the 2011 Agreement.
[13] The relevant part of the annual leave clause is as follows:
“5.1 ANNUAL LEAVE…
5.1.8 With the exception of night shift workers, employees are to be paid annual
leave on the basis of their ordinary pay rates.
5.1.9 Employees working in a higher classification rate than their normal
classification shall be paid for the proportionate annual leave accrued at that
higher rate. For the purpose of the correct annual leave payment rate an
employee must work a minimum of 13 weeks (and increments of 13 weeks) in
a higher ‘rate of pay’ position to accrue one weeks holiday pay at the higher
rate providing the 13 weeks falls within any 12 month period and thereafter in
each year which shall be calculated separately.” [Underlining added]
[2015] FWCFB 1004
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[14] The relevant part of the compassionate leave clause is as follows:
“5.2 COMPASSIONATE LEAVE
5.2.1 Full time and part time employees are entitled to compassionate leave in
accordance with the NES. Full time and part time employees are also entitled
to compassionate leave under this clause to the extent that it provides a greater
benefit than the NES. The leave benefits in this clause are inclusive of, and not
in addition to, any entitlement to compassionate leave under the NES arising in
respect of the same circumstances.”
[15] The long service leave clause is as follows:
“5.3 LONG SERVICE LEAVE
Long Service Leave shall be granted in accordance with the Queensland
Industrial Relations Act 1999.
5.3.1 All employees covered by this Agreement shall be entitled to long service
leave on full pay under, subject to, and in accordance with the provisions of the
Queensland Industrial Relations Act 1999.” [Underlining added]
[16] The parental leave clause is as follows:
“5.4 PARENTAL LEAVE
Employees are entitled to parental leave in accordance with the NES - A copy
will be provided upon request”.
[17] The personal leave clause is relevantly as follows:
“5.5 PERSONAL LEAVE
5.5.1 Full time and part time employees are entitled to personal leave in accordance
with the NES. Full time and part time employees are also entitled to personal
leave under this clause to the extent that it provides a greater benefit than the
NES. The leave benefits in this clause are inclusive of, and not in addition to,
any entitlement to personal leave under the NES arising in respect of the same
circumstances.”
[18] The public holidays clause relevantly provides as follows:
“5.6 PUBLIC HOLIDAYS
5.6.1 Full time and part time employees whose roster falls on the Public Holiday,
shall be entitled to a day off, without loss of pay for ordinary rostered hours for
the following days:
Public holidays shall be observed in Queensland as follows:
[2015] FWCFB 1004
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New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day,
Sovereign’s Birthday, Labour Day, Christmas Day and Boxing Day.
5.6.1.1 All full time employees and part time employees whose roster falls on
the Ipswich Show Day will generally be expected to be available to
work that day in accordance with the NES. Employees who work on
the Show Day shall be entitled to take a day’s leave in lieu without loss
of pay (calculated on the employee’s ordinary rate of pay).
5.6.1.2 Boning Room day shift full time and part-time employees whose
ordinary roster falls on the Picnic Day (last Monday in October), may
volunteer to work the day, and be entitled to a day’s leave in lieu
without loss of pay (calculated on the employees ordinary rate of pay).
5.6.1.3 All other full time and part-time employees whose ordinary roster falls
on the Picnic Day shall be required to work that day, but be entitled to
take a day’s leave in lieu without loss of pay (calculated on the
employee’s ordinary rate of pay).” [Underlining added]
[19] The community service clause relevantly provides as follows:
“5.7 COMMUNITY SERVICE
5.7.1 Defence Force Leave…
5.7.1.2 A full time or part time employee shall be allowed leave of up to two
(2) weeks maximum per calendar year to attend Defence Forces reserve
approved training camps.
During such leave full time and part time employees who are required
to attend full time training shall be paid an amount equal to the
difference between the payment received in respect of their attendance
at camp and the amount of ordinary time earnings they would have
received for working ordinary time during that period…
5.7.2 Natural Disaster Leave
5.7.2.1 Where a State of Emergency is declared, employees with children shall
be allowed to leave work to care for their children sent home from
school. An employee is to receive up to two days paid leave if there is
a reasonable and justified reason that employee is unable to attend
work due to a State of Emergency…
5.7.4 Jury Service…
5.7.4.2 In return the Company shall pay up to a full day’s wages (depending on
the number of hours involved) for each day spent on jury service,
including any allowances (e.g. shift allowances)…
[2015] FWCFB 1004
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5.7.4.4 By agreement between the Company and the employee an employee
may change his/her roster to fall in line with jury service schedule,
without the loss of any respective allowances (e.g. shift allowances).”
[Underlining added]
[20] The National Employment Standards (NES) in the FW Act provide for the payment of
certain compassionate, parental, personal and community service leave at the employee’s base
rate of pay for their ordinary hours of work for the period of the leave. Section 16 of the FW
Act defines the “base rate of pay” of a national system employee, other than a pieceworker, as
“the rate of pay payable to the employee for his or her ordinary hours of work, but not
including any of the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.”
[21] The “rates” terms used in these clauses, such as “ordinary pay rates”, “full pay” and
“ordinary rate of pay”, are not defined in the definitions clause of the 2011 Agreement.
However, similar terms are referred to elsewhere in the 2011 Agreement, including the
following:
“2.1 CONTRACT OF EMPLOYMENT…
2.1.2 Probationary Period…
2.1.2.2 For the duration of the probationary period, employees engaged in
either classification 2, 3 or 5 will be paid at 94% of the ordinary rate for
the relevant classification they are engaged to perform…
2.1.5 Casual employees
2.1.5.1 The ordinary rate for a casual employee shall be the weekly employee’s
hourly rate plus a casual loading of 20%...
4.2 ROSTERED DAYS OFF (RDO)
4.2.1 Subject to clause 4.2 full time employees will be entitled to one (1) day off in
each twenty (20) day, four (4) week cycle. Payment for the RDO will be based
on the employee’s ordinary rate of pay, including any shift allowances.
Employees can only take an RDO when a minimum time in credit of 1 day
(7.6 hours) is accumulated as displayed on the employee’s payslip for the
previous week’s period or as agreed by the Company…
4.2.5 An employee’s rostered day off shall not be considered part of his or her
ordinary time. If an employee consents to work on an RDO then the employee
[2015] FWCFB 1004
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may elect to be compensated, with agreement with the Company, with an
ordinary day being 7.6 hours, in one of the following ways:
a) The RDO to be paid at ordinary rates…
4.2.6 Any RDO time accrued shall be paid to the employee on termination of
employment for any reason at ordinary rates…
4.2.14 With reference to 4.2.2, relating to Boning Room employees, at the date of
ratification half a body equates to 26 minutes. It is recognised that the
2 minute differential be paid into the respective ordinary rates for employees…
4.7 SHIFT WORK…
4.7.4 Notwithstanding anything contained in the clause, employees on the
morning/afternoon shift shall receive a shift allowance of 15% which becomes
the ordinary rate for the purposes of Public Holidays, Personal Leave,
Compassionate Leave and Long Service Leave.” [Underlining added]
The Deputy President’s decision
[22] In determining the dispute, the Deputy President referred to the relevant provisions of
the 2011 Agreement and detailed the evidence and submissions before her, before giving
consideration to those matters and concluding.
[23] In her consideration of the dispute, the Deputy President considered the text of the
2011 Agreement, the context of the 2011 Agreement and the extrinsic material before her, in
concluding to the effect that the “rail allowance” in clause 3.1.1 of the 2011 Agreement is not
payable to employees to whom the 2011 Agreement applies when on annual or other forms of
paid leave.
[24] In respect of the text of the 2011 Agreement, the Deputy President relevantly said:
“[57] There is no definition in the Agreement of the term ‘ordinary pay rates’ for the
purposes of clause 5.1.8 of the Agreement... The 2002 Agreement has a clause 5.1.9 that is in
identical terms to clause 5.1.8 of the 2011 Agreement the subject of these proceedings…
[60] It is clear from the language of the Agreement that the allowance for table butchers
boning beef on the rail in clause 3.1.1 that is the subject of these proceedings is a daily
allowance. The manner in which it is expressed is not distinguishable from the allowances in
clauses 3.1.2 and 3.1.3 which respectively apply to follow on labourers operating boning room
beef input scales and the boning room carton printerm. None of these allowances are
specifically designated as all-purpose allowances and there is no basis, on the plain words of
the clauses which provide for those allowances for the rail allowance to be paid on a different
basis to the allowances applicable to employees operating beef input scales or the carton
printerm.
[2015] FWCFB 1004
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[61] That the rail allowance is a daily allowance is also indicated by the terms of clause 3.5
wages, where the table setting out wages and allowances shows that the dollar value of the
allowance for Table Butchers boning beef on the rail on a daily basis, varies depending on the
hours worked. The allowance is higher when an eight hour day is worked than it is when a 7.6
hour day is worked. This is indicative of the allowance being a flat amount that is capped on a
daily basis depending on the hours worked.
[62] If the allowance was intended to be an all-purpose allowance, there would be no
reason to express it as a daily amount which varies on the basis of ordinary hours worked. If
more is needed there is a further indication that the allowance is payable while the work to
which it relates is being performed in clause 1.6.6, which defines ‘Table Butcher’ and
provides that a rail allowance is paid for duties performed on the rail. There is no indication
that any of the allowances in clauses 3.1.1, 3.1.2 and 3.1.3 of the 2011 Agreement, all of
which are expressed in virtually identical terms, are all-purpose allowances.
[63] The terms in which the rail allowance in clause 3.1.1 of the Agreement and the
allowances in clauses 3.1.2 and 3.1.3 are expressed can be contrasted with the terms of clause
4.7.4 of the Agreement which makes it clear that employees on morning or afternoon shift
receive a shift allowance which becomes the ordinary rate for the purposes of public holidays,
personal leave, compassionate leave and long service leave. Notably shift allowances are not
included in the ordinary rate for annual leave, by virtue of clause 5.1.8. Given that shift
allowances are 15% and annual leave loading is 17.5% this is consistent with the general
principle that employees who are shift workers are paid for annual leave their ordinary rate
plus shift allowance or annual leave loading, whichever amount is greater…
[65] Similarly under the terms of the 2011 Agreement, the rate of pay for employees on
rostered days off includes shift allowances. There is no reference to allowances being payable
to employees while on personal leave or compassionate leave.
[66] Thus in the context of the 2011 Agreement read as a whole, where an allowance is
considered to be part of the ordinary rate for the purposes of leave, and therefore payable to an
employee while on leave, there is a specific provision to that effect. There is no such
provision with respect to the rail allowance in clause 3.1.1, or the allowances in 3.1.2 or 3.1.3
with respect to operation of the beef input scales or the boning room carton printerm.”4
[25] With respect to the context of the 2011 Agreement, the Deputy President said:
“[67] The context in which the 2011 Agreement was made includes its earlier iterations.
The provision of the 2011 Agreement dealing with payment for annual leave is in identical
terms to the provisions in six earlier versions of the Agreement. The AMIEU did not
challenge the submission of Brismeat that the allowance for Table Butchers boning beef on the
rail had not previously been paid on annual leave. It almost goes without saying that there
would have been no need for the AMIEU to have made a claim that the allowance should be
paid to employees on annual leave, if that had been Brismeat’s practice.
[68] I am of the view that when the provisions of the earlier iterations of the
2011 Agreement are considered, the context in which the 2011 Agreement was made does not
support the interpretation contended for by the AMIEU. The 1994 Agreement does not
contain any allowances. That Agreement contains classifications and wage rates for both Rail
Butchers and Table Butchers with the weekly wage rate for Rail Butchers being $20 per week
higher than the weekly wage rate for Table Butchers.
[2015] FWCFB 1004
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[69] The 1996 version of the Agreement, approved with effect from 4 December 1997,
provided as follows at clause 3.1.1:
‘Rail Butchers shall receive an all purpose allowance of $4.80 per day for each day
they are employed boning beef on the rail.’
[70] The usual meaning of the term ‘all purpose’ when used in respect of an allowance, is
that the allowance is part of the base or ordinary rate for the purposes of calculating payments
for overtime and all forms of paid leave. The 1996 Agreement contains wage rates and
classifications for both Rail Butchers and Table Butchers and those wage rates are identical.
Further, the Rail Butchers allowance does not appear in the wages table in clause 3.4.1 of the
1996 agreement.
[71] In the 2002 Agreement clause 3.1.1 which continues to deal with the allowance for
Rail Butchers boning beef on the rail is in the following terms:
‘Rail Butchers shall receive an allowance for each day they are employed boning beef
on the rail as outline in Section 3.4 Wages. This allowance is to proportionally
increase with wage increases.’
[72] There is also a new clause 3.1.2 which provides that:
‘Rail Butcher skill allowance is included into workcover’.
[73] Instead of being specified in clause 3.1.1, the quantum of the rail allowance now
appears in the wages table in clause 3.4 as follows:
‘SKILL ALLOWANCE (RAIL BUTCHERS) $8.26 per DAY in addition to base rate’.
[74] The 2002 Agreement also contains a classification for Rail Butcher and a
classification for Table Butcher and both classifications receive the same weekly wage rate.
[75] The terms of the 2004 Agreement are the same as those of the 2002 Agreement with
respect to the inclusion of clauses 3.1.1 and 3.1.2. With respect to classifications, 11 levels
have been introduced. The classification of Table Butcher is in the level for which the highest
weekly wage rate is specified - level 11. There is no classification for Rail Butcher. In the
wages table in clause 3.5, the following appears:
‘Skill Allowance for Rail Butcher work $8.82 per day’.
[76] In the 2006 Agreement, clause 3.1.1 remains unchanged, but clause 3.1.2 has been
deleted. The skill allowance for Rail Butchers is still found in clause 3.5 weekly wage rates
except that the amount of the allowance differs depending on whether or not employees work
under an arrangement with a rostered day off. The 2007 Agreement has the same provision
with respect to the allowance for Rail Butchers and clause 3.5 weekly wage rates is also in
similar terms other than the quantum of the allowance has been increased.
[77] Clause 3.1.1 of the 2011 Agreement is in similar terms except the allowance is now
payable to ‘Table Butchers for each day they are employed boning beef on the rail’. The
quantum of the allowance is also included in the wages table set out clause 3.5 on the basis
that the quantum changes depending on whether employees work a 7.6 or 8 hour day. This is
consistent with item 10 of the minutes of the meeting of 27 October 2010 which is as follows:
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Allowances
3.1
replace ‘rail’ with ‘table’
10/08/10 No classification of ‘Rail Butcher’, it is a ‘Table
Butcher’ that gets a rail allowance.
24/08/10 Employees to respond.
07/09/10 Accepted.
[78] The reference in the 1996 Agreement to the rail allowance being an all purpose
allowance is not found in any of the subsequent iterations of the clause prescribing the
allowance. As previously noted, the AMIEU does not dispute the assertion made by Brismeat
that custom and practice has been that the allowance has not been paid to employees by
Brismeat while they are on leave.
[79] All indications are that in versions of the Agreement following the 1996 Agreement
the rail allowance cleared [sic] to be all purpose and was paid on a daily basis and the
classification for Rail Butchers was phased out. There is insufficient material before me to
form any conclusion about this matter. However regardless of any previous provisions, it is
clear that the rail allowance in the 2011 Agreement is not an all purpose allowance.
[80] It is improbable that a change of some significance was negotiated with respect to the
2011 Agreement and that the clauses dealing with both the allowance and the payment to
employees while on annual leave, were not amended to reflect that change. It is even more
improbable that in circumstances where the parties agreed on an amendment to clause 3.1.1 to
reflect the fact that there was no classification for Rail Butcher, that they did not amend the
clause to reflect what would have been a much more significant change to the practice that
Table Butchers were not paid the rail allowance while on leave…
[82] For these reasons, the interpretation of the Agreement advanced by the AMIEU is
inconsistent with both the specific terms of the 2011 Agreement and the context in which it
was made, including the earlier iterations of the 2011 Agreement and the Award which
underpinned it for the purposes of the process by which the 2011 Agreement was approved by
the Commission.
[83] The interpretation advocated by the AMIEU would require that the text of the
2011Agreement be strained and would result in rather than avoid inconvenience and injustice.
I agree with the submission of Brismeat that the AMIEU has failed to explain how payment to
employees for annual leave and other forms of leave would be calculated if the construction of
the 2011 Agreement advanced by the Union was accepted. Clause 5.1.9 of the Agreement is
not an answer to this problem. That clause deals with employees working at higher
classification levels and not with employees performing work for which an allowance is
prescribed. There is no classification for Rail Butcher as there was in previous versions of the
Agreement, and clause 5.1.9 cannot apply where a daily allowance is paid.
[84] Further, there is no rational basis for the allowance in clause 3.1.1 of the Agreement to
be paid to employees on annual and other forms of leave, and not the allowances in clause
3.1.2 and 3.1.3, which are expressed in identical terms to the allowance subject of these
proceedings.”5
[26] In considering the extrinsic material, the Deputy President said:
“[85] I am also of the view that there is nothing ambiguous about the provisions of the 2011
Agreement under which the AMIEU asserts an entitlement on the part of Table Butchers to be
paid the allowance in clause 3.1.1 of the Agreement on all forms of leave. Quite simply, on
the plain meaning of the words in relevant provisions of the Agreement, the allowance in
clause 3.1.1 is not paid on all forms of leave. For the reasons set out above, this view is
[2015] FWCFB 1004
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consistent with the context in which the relevant provisions appear in the 2011 Agreement and
in earlier iterations of that Agreement. It is also consistent with the Award.
[86] The AMIEU asserts that notwithstanding the text of the Agreement, the extrinsic
material, in the form of minutes of negotiation meetings, and the belief of officials of the
AMIEU and its members that agreement was reached that the allowance in clause 3.1.1 would
be paid on all forms of leave, requires a construction of the Agreement to that effect.
[87] As previously noted, extrinsic material may be considered to resolve an ambiguity or
expose it. In the present case, the extrinsic material is the minutes of a meeting held on 27
October 2010, for the purpose of negotiating the 2011 Agreement. I do not accept that the
minutes of that meeting or of any other meeting establish that the parties agreed that the Rail
Butchers allowance would be paid on annual leave or any other form of leave. It is clear from
the evidence of Ms Romero and the minutes themselves that the claim was raised by
employees on 10 and 24 August 2010 and that on 7 and 14 September the Company provided
reasons why this claim was rejected. On 14 September employees indicated that they would
respond to the Company’s position, which was ‘still no’ and on 29 September ‘Accepted’ the
Company’s rejection of this claim.
[88] This is a more probable scenario than the one advanced by the AMIEU, which would
require the Commission to accept that after rejecting a claim at two previous meetings, the
Company changed its position and accepted it. This scenario advanced by Brismeat with
respect to the minutes is supported by the evidence of Ms Romero who was present at the
meetings where the claim was discussed. It is also supported by the fact that there was no
change to the clause prescribing the allowance, the wages clause or the annual leave clause, to
reflect this alleged agreement. This is despite the clause providing for the allowance being
amended to reflect the fact that the allowance was payable to Table Butchers and not Rail
Butchers – a classification which no longer appeared in the Agreement.
[89] I am also of the view that the term ‘Accepted’ in the context of the minutes as a
whole, is used to indicate acceptance of the last substantive position. In relation to items
where there was negotiation, the term ‘Accepted’ is generally used to indicate acceptance of
the final negotiating stance of the other party. In cases where the term ‘Accepted’ relates to
the original claim, there is no negotiation and the substantive position to which the term
‘Accepted’ relates, is the original claim. This can be seen from the minutes of 7 October in
relation to items 10 and 16, both of which dealt with clause 3.1.1 the clause which provides for
the rail allowance. It is also apparent from other sections of the minutes highlighted in cross-
examination by both Mr Dalgleish and Mr Jauncey.
[90] This is illustrated by the following extracts from the minutes of meeting 7. With
respect to item 10, it is apparent that on 10 August 2010, the Company proposed the deletion
of the term ‘Rail Butcher’ and the insertion in lieu of that term of the term “Table Butcher”.
On 24 August 2010 employees indicated that they would respond to this proposal. On 7
September 2010, the item is recorded as having been ‘Accepted’. Clearly, in this case there
was no substantive discussion about the proposal and the acceptance of the item relates to the
original claim.
[91] This can be contrasted with the minutes in relation to item 16. The minutes show that
on 10 August 2010, employees claimed that stand up rail butchers be paid allowance on all
paid leave inclusive of leave loading. On 24 August 2010 it was recorded that employees
were to clarify the claim. On 7 and 14 September the Company’s opposition to the claim is
outlined and the minutes record that employees are to respond to the Company’s position. The
response ‘Accepted’ is clearly a response to the Company’s position of opposition. In other
words employees accepted that the claim was rejected and opted not to pursue it further. This
[2015] FWCFB 1004
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is consistent with the fact that the clause was not altered other than in the manner agreed to in
relation to item 10.
[92] The fact that Mr Crawford later formed a view that the minutes should be interpreted
in the manner contended for by the AMIEU is not sufficient to establish that there was an
understanding or agreement between the parties about this matter. Mr Crawford attended only
two meetings and was not at the meetings where this matter was discussed. His view is based
on minutes of meetings he did not attend, and however genuinely that view is held, it is not a
sufficient basis to establish that there was agreement on this matter. It is also the case that
there is no evidence that any employee who was employed as a Table Butcher at the relevant
time, believed that the Company had agreed to pay the rail allowance on annual leave or other
forms of leave. That there was no substantive change to the provision is also evidenced by the
fact that exactly the same wording was included in the 2011 Agreement with respect to the
clause providing for the allowance and the clause relating to payment for annual leave.
[93] The extrinsic material relied on by the AMIEU does not support the construction
advanced by the Union. There is no basis for inferring that an understanding was reached, and
the evidence is to the contrary.”6
Grounds of appeal
[27] The AMIEU’s grounds of appeal maintain that the Deputy President erred in
concluding to the effect that the “rail allowance” in clause 3.1.1 of the 2011 Agreement is not
payable to employees to whom the 2011 Agreement applies when on annual or other forms of
paid leave.
[28] The AMIEU says that the Deputy President’s error arises from, in summary, her:
failure to consider all the relevant submissions of the AMIEU,
delay in making the decision,
mishandling of the evidence before her, and
misconstruing the terms of the 2011 Agreement.
[29] In support of their appeal, the AMIEU focuses on the minutes of an enterprise
bargaining meeting of 29 September 2010. Those minutes were prepared by Brismeat. The
relevant part of those minutes was replicated in the minutes of the subsequent enterprise
bargaining meetings that led to the making of the 2011 Agreement.
[2015] FWCFB 1004
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[30] The relevant part of those minutes is as follows:
No Combined Log of Claims Discussion Summary
16 Weekly Wage Rates
3.5
Stand up rail butchers to be paid
allowance on all paid leave
inclusive of leave loading
10/08/10: Similar to the shift allowance for annual
leave and personal leave.
24/08/10: Employees to clarify claim.
07/09/10: In the last agreement negotiations, this
increase was granted but the rail butchers rejected the
offer and asked for the difference to be applied across
the board to all Brismeat employees. If the butchers
who receive the rail allowance wish it to be applied
all the time, it must be taken back out from the
‘general pot’ (as it was applied last EBA) and this
allowance will decrease amount applied across the
board to all employees.
14/9/10: PG communicated our position is still no,
indicated that we have already paid last EBA.
Employees to respond.
29/09/10: Accepted
[31] The AMIEU submits that the word “Accepted” in the “Discussion Summary” column
indicates that in the bargaining for the 2011 Agreement, Brismeat accepted the content of the
corresponding “Combined Log of Claims” column.
[32] Accordingly, they submit that the terms of the 2011 Agreement should have been
construed to give effect to that mutual understanding, agreement or intent.
[33] Brismeat opposes the appeal.
[34] We turn then to consider the appeal.
Consideration of the appeal
[35] In our view, pursuant to the 2011 Agreement, the “rail allowance” in clause 3.1.1 of
the 2011 Agreement is not payable to a Table Butcher to whom the 2011 Agreement applies
when on paid leave. We are not persuaded the Deputy President erred in concluding to that
effect.
[36] As earlier indicated, none of the “rates” terms used in the 2011 Agreement are defined
in its definitions clause. Although, the term “full pay” in the Industrial Relations Act 1999
(Qld) is defined as meaning “payment in full for the time that an employee is absent from
work.”7
[37] Nonetheless, from the other clauses in the 2011 Agreement, it is evident that for some
paid leave purposes these “rates” terms include the shift allowance in the 2011 Agreement.
For example, pursuant to clause 4.7.4 of the 2011 Agreement, for employees on
morning/afternoon shift the “ordinary rate of pay” in clause 5.6 of the 2011 Agreement for the
purposes of payments in respect of public holiday entitlements includes a shift allowance of
15%. However, none of the other clauses in the 2011 Agreement make it evident that the
“rates” terms include the “rail allowance” in the 2011 Agreement for paid leave purposes.
[2015] FWCFB 1004
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[38] We are fortified in our view that none of the “rates” terms include the “rail allowance”
for paid leave purposes by the fact that the 2011 Agreement does not specify the “rail
allowance” as being an “all purpose allowance”. This is in contrast to the A.M.I.E.U. -
Brismeat Enterprise Agreement 19948 which provided for a “Rail Butcher” to receive $547.50
per week and a “Table Butcher” to receive $527.50 per week.9 Further, the subsequent
Woolworths-Brismeat Enterprise Agreement 199610 provided for a “Rail Butcher” and “Table
Butcher” to receive the same amount per week,11 with the “Rail Butcher” also being entitled
to an “all purpose allowance” of $4.80 per day “for each day they are employed boning beef
on the rail.”12 While the Woolworths-Brismeat Enterprise Agreement 200113
(2001 Agreement) removed the reference to the “rail allowance” being an “all purpose
allowance”, the 2001 Agreement did provide that the “rail allowance” is “included into
workcover”,14 as did the subsequent Woolworths Limited - Brismeat, Queensland and the
Australasian Meat Industry Employees’ Union Agreement 2003.15 The reference to the “rail
allowance” being included into workcover however was not included in the Woolworths
Limited - Brismeat, Queensland and the Australasian Meat Industry Employees’ Union
Agreement 200616 or the Woolworths Limited - Brismeat, Queensland and the Australasian
Meat Industry Employees’ Union Agreement 200717 (2007 Agreement).
[39] The AMIEU concedes that the 2007 Agreement did not require the “rail allowance” to
be paid to an employee when on paid leave. The terms of the 2011 Agreement, including
clause 5.1.9 concerning annual leave payments for those working in a higher classification
rate than their normal classification, are not relevantly different to those of the
2007 Agreement.
[40] The AMIEU submits that the terms of the 2011 Agreement should be construed to
give effect to a mutual understanding, agreement or intent reached in the bargaining for the
2011 Agreement which they submit is reflected in the minutes of the enterprise bargaining
meeting of 29 September 2010. Those minutes record the word “Accepted” next to the claim
for “stand up rail butchers to be paid allowance on all paid leave inclusive of leave loading”.
[41] Mr Brian Crawford, Branch Secretary of the AMIEU, Queensland Branch gave
evidence for the AMIEU supporting the AMIEU’s submission about the import of the word
“Accepted” in the minutes of the enterprise bargaining meeting of 29 September 2010 and
subsequent minutes. However, Ms Julie Romero, a Human Resource Specialist at Brismeat,
gave evidence for Brismeat to different effect.
[42] Mr Crawford’s evidence was that:
“Enterprise bargaining with Brismeats
3. During the negotiations for the Woolworths Limited - Brismeat, Queensland
and the Australasian Meat Industry Employees’ Union Agreement 2011 (‘the
agreement’) in 2010/11, I attended 2 meetings. Meeting number 10 on
7 December 2010 and meeting number 18 on 28 March 2011.
4. The process I observed at these meetings is that staff of Brismeats were taking
detailed notes of the discussions that were occurring.
[2015] FWCFB 1004
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5. After these meetings had concluded, representatives of Brismeats would then
compile minutes of the meetings and circulate them to attendees for adoption.
My understanding of the format of the minutes was the unshaded section of the
minutes outlined claims still in contention and the shaded section of the
minutes outlined claims that had been resolved.
6. Exhibited to this affidavit and marked ‘BPC 1’ is a copy of the minutes for
meeting number 7 conducted on 27 October 2010. Item number 16 on page 6
of this exhibit deals with the payment of the rail allowance for all forms of
paid leave.
7. The minutes record this item was ‘Accepted’. At the meetings I attended, no
representative of Brismeats indicated to me that there was going to be a
distinction used in the negotiations whereby a discussion summary could be
‘accepted’ as distinct to a log of claim being ‘accepted’.
8. In my 20 years’ experience in enterprise bargaining spanning hundreds of
negotiated agreements, I have never heard any party to any negotiations
indicate that a discussion summary can be ‘accepted’ but this does not
necessarily result in a log of claim being ‘accepted’.”18
[43] Item 16 in the 27 October 2010 minutes to which Mr Crawford refers is the same as in
the 29 September 2010 minutes that we have earlier set out.
[44] Mr Crawford’s evidence is insufficient to establish that in respect of item 16 of the
minutes the word “Accepted” in the “Discussion Summary” column of the minutes has the
import contended by the AMIEU.
[45] Ms Romero’s evidence before the Deputy President was that:
“Initial negotiations for the Brismeat Agreement 2011…
“27. Although I had not yet commenced in my role as Human Resource Specialist
at Brismeat, I organised to sit on the third and fourth substantive negotiation
meetings held on 7 September 2010 and 14 September 2010. After
commencing in my role at Brismeat on 20 September 2010, I then attended all
negotiation meeting meetings (apart from four meetings on 7 December 2010,
5 January 2011, 9 February 2011 and 21 February 2011).
28. At each negotiation meeting that I attended, a Brismeat representative was
responsible for taking notes and preparing minutes of the meetings. My
understanding was that these notes were then circulated to other
representatives, including AMIEU representatives prior to the commencement
of the next meeting.
29. At the beginning of the negotiation process, there were a large number of
claims put forward by each side. To try to manage these claims in an
expedient and comprehensive fashion, each claim was set out in a table for
discussion:
[2015] FWCFB 1004
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(a) in the first column of the table, each claim was given an identifying
number;
(b) in the second column of the table, short details were included about the
nature of each claim; and
(c) in the third column of the table, a summary was included of the
position each party had taken in relation to that specific claim (with this
column then being updated after each meeting to include reference to
what a party might have said about that claim).
30. Where the parties were able to resolve a particular claim, the row for that claim
was then shaded in grey and moved to the back of the table (although keeping
its previous identifying number). The claims that were still outstanding and
unresolved at any particular time remained in uncoloured rows at the front of
the table.
31. To the best of my recollection, claims which were resolved often had the word
‘accepted’ included. However, I did not ever understand this to mean that the
position put in the log of claims had been accepted. Instead, I understood this
simply mean that one party had accepted the last recorded position put forward
by the other party.
32. During each meeting, the representatives present would usually talk through, in
order, each of the claims remaining in the ‘unshaded’ part of the document.
Claim regarding rail butchers allowance and afternoon shift loading
33. In preparing for my role as Human Resources Specialist at Brismeat, I
reviewed the various claims which had been put forward in respect of a new
enterprise agreement. As a result, I was aware that the AMIEU was, among
other things, seeking:
(a) that the rail butcher allowance paid to Table Butchers performing
stand-up functions associated with boning beef on the rail be included
in calculating entitlements to all paid leave inclusive of leave loading
(which was identified as ‘claim 16’)…
35. My understanding, however, from very early in my involvement in the
negotiations, was that the company had adopted a firm position that:
(a) the rail butcher allowance had not historically been, and should not be,
included in calculating leave entitlements, including annual leave
entitlements…
36. I recall that the company’s view, as expressed to me by other company
negotiating representatives was that acceptance of these claims would result a
significant cost to the business which the company did not believe to be
justified. As a result, my understanding was that the company’s firm position
was that it intended to oppose these claims…
[2015] FWCFB 1004
19
Negotiation meeting on 7 September 2010
40. On 7 September 2010, I attended the third substantive negotiation meeting…
43. In relation to claim 16 (relating to the inclusion of the rail butcher allowance in
calculating all paid leave), I no longer recall all the exact words that were said
at the meeting. However, having since reviewed the minutes, I have no reason
to doubt that the words used were to the effect of those recorded in the minutes
subsequently prepared in relation to that meeting…
Negotiation meeting on 14 September 2010
47. On 14 September 2010, I attended the fourth substantive negotiation
meeting…
50. In relation to claim 16 (relating to the inclusion of the rail butcher allowance in
calculating all paid leave), I no longer recall all the exact words that were said
at the meeting. However, the subsequent minutes record that company
representatives as saying that Woolworths did not agree to this claim, and I
remember that Mr Gutzke was very firm in saying that the company did not
agree to those claim which it was not accepting…
Negotiation meeting on 29 September 2010
54. On 29 September 2010, I attended the fifth substantive negotiation meeting…
57. In relation to claim 16 (relating to the inclusion of the rail butcher allowance in
calculating all paid leave), I no longer recall all the exact words that were said
at the meeting. However, during this meeting, the company did not change its
previously stated position in relation to this claim, or otherwise indicate that it
would accede to the claim. This would have been a substantial backflip by the
company. It did not happen. In the subsequent minutes for this meeting, the
word ‘accepted’ in respect of claim 16 (and the movement of that claim to the
grey shaded area) simply indicated that employee representatives agreed to
effectively accede to the company’s previously stated position on this claim.”19
[46] In cross-examination, Ms Romero indicated that:
over the course of the enterprise bargaining meetings various Brismeat
representatives were responsible for taking notes and preparing the minutes of the
meetings;20
some claims in the log of claims which were agreed to without discussion were
also recorded as “Accepted” in the “Discussion Summary” column of the
minutes;21
some claims in the log of claims which were not agreed to by Brismeat or the
employees were recorded as “Company rejects” or “Rejected from employees” in
the “Discussion Summary” column of the minutes;22 and
[2015] FWCFB 1004
20
sometimes the word “Accepted” in the “Discussion Summary” column of the
minutes was qualified.23
[47] The cross-examination of Ms Romero did not establish that in respect of item 16 of the
minutes the word “Accepted” in the “Discussion Summary” column of the minutes has the
import contended by the AMIEU. At best it established that the minutes are an ambiguous
record of whether individual claims in the “Combined Log of Claims” were ultimately agreed
or not agreed between the relevant parties, including the claim at item number 16 in the
minutes.
[48] The AMIEU is critical of the Deputy President’s consideration of Ms Romero’s
evidence, including her delay in considering that evidence. However, for the reasons we have
given, we consider the Deputy President correctly concluded that the extrinsic material relied
on by the AMIEU does not support the construction of the 2011 Agreement advanced by
them. We also consider she did not misconstrue the terms of the 2011 Agreement.
[49] The AMIEU’s further contention on appeal, that the Deputy President erred in failing
to consider all the relevant submissions of the AMIEU, was founded on the other errors
alleged by the AMIEU with which we have already dealt.
[50] In our view, the Deputy President dealt comprehensively with all the relevant
submissions before her and did so with the requisite procedural fairness and without relevant
delay.
Conclusion
[51] Having regard to our consideration of the appeal in this matter, we are not persuaded
to grant permission to appeal in the public interest or otherwise. The Deputy President’s
decision is not affected by appealable error. Further, there are insufficient grounds for
granting permission to appeal in the public interest. We refuse permission to appeal. To the
extent necessary, we also dismiss the appeal. An order24 to that effect is being issued at the
same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
E. Dalgleish for The Australasian Meat Industry Employees Union.
S. Jauncey, solicitor, with J. Zhang for Woolworths Limited trading as Brismeat.
Hearing details:
2015.
Brisbane:
February 4.
F THE FAIR WOR AU TRALL OMMISSION SE SEAN THE
[2015] FWCFB 1004
21
Final written submissions:
Woolworths Limited trading as Brismeat, 13 February 2015.
The Australasian Meat Industry Employees Union, 4 and 17 February 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR560946
Endnotes:
1 Australasian Meat Industry Employees Union, The v Brismeat Queensland (Woolworths Limited) T/A Brismeat,
[2014] FWC 8620.
2 AE885980.
3 Australasian Meat Industry Employees Union, The v Brismeat Queensland (Woolworths Limited) T/A Brismeat,
[2014] FWC 8620 at paragraph 94.
4 Australasian Meat Industry Employees Union, The v Brismeat Queensland (Woolworths Limited) T/A Brismeat,
[2014] FWC 8620.
5 Ibid.
6 Ibid.
7 Industrial Relations Act 1999 (Qld), Schedule 5.
8 AG766335.
9 Ibid at clause 11.
10 AG803029.
11 Ibid at clause 3.4.
12 Ibid at clause 3.1.1.
13 AG813954.
14 Ibid at clause 3.1.2
15 AG832668 at clause 3.1.2.
16 AC300953.
17 AC310936.
18 Appeal Book at pp. 104-105.
19 Appeal Book at pp.123-126.
20 See, for example, Appeal Book at pp. 55-56.
21 See, for example, Appeal Book at p. 58.
22 See, for example, Appeal Book at pp. 59-61 and 70.
23 See, for example, Appeal Book at pp. 68-69.
24 The Australasian Meat Industry Employees Union v Woolworths Limited trading as Brismeat, PR561452.
