1
Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Employees of AWX Pty Ltd
(AG2013/5788)
AWX PTY LTD EMPLOYEE COLLECTIVE AGREEMENT - MEAT
INDUSTRY EMPLOYEES 2006-2009
Meat Industry
COMMISSIONER SIMPSON BRISBANE, 9 AUGUST 2013
Application for termination of the AWX Pty Ltd Employee Collective Agreement - Meat
Industry Employees 2006-2009 - Authority to Act - Economic Impact - Validity for Ballot
Process - Employers Other Industrial Arrangements - Evidence concerning support and
resettlement of employees on Humanitarian Visas - Application Granted
BACKGROUND
[1] On 26 March 2013 an application was filed listing 28 applicants and the Australasian
Meat Industry Employees Union (AMIEU) as their representative made under subdivision D
of Division 7 of Part 2-4 of the Fair Work Act 2009 as it applies under item 16 of Schedule 3
of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“TPCA
Act”) for approval for termination of the AWX Pty Ltd Employee Collective Agreement - Meat
Industry Employees 2006 - 2009 (“the Agreement”). The Agreement was made under the
repealed Workplace Relations Act 1996. It was lodged with the Employment Advocate on 22
December 2006 and it nominal expiry date was 23 December 2009. The Agreement
continues to operate as a collective agreement-based transitional instrument pursuant to Item
2(5) (c)(v) of Schedule 3 of the TPCA Act.
[2] The matter was listed for a directions hearing on 22 April 2013. I adjourned the
matter for a time on that day in order to give the parties an opportunity to confer and seek to
reach agreement on a set of directions. The Respondent raised concerns in regard to logistical
issues arising from the particular circumstances of this case where the Commission is required
to consider the views of employees in regard to the application, and the employees are
predominantly refugees under humanitarian visas, some with limited or no English language
and who are engaged by an employer who is a labour hire company who does not have
[2013] FWCA 4490 Note: An appeal pursuant to s.604 (C2013/5709) was
lodged against this decision - refer to Full Bench decision dated 11
November 2013 for result of appeal.
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2013FWCFB8726.htm
[2013] FWCA 4490
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control of the worksites where they are employed as they are controlled by the ‘host
employer’.1
[3] The AMIEU argued that a postal ballot would be the most efficient way to assess the
views of employees in circumstances where the workplace was spread across a range of sites
across the country as compared to stand up ballots at each site.2 The parties agreed to have a
ballot agent conduct a ballot and to provide to the ballot agent respective yes and no cases to
be reduced to 400 words. The only area of disagreement was whether the ballot be a stand up
or postal ballot.3 I ruled that the ballot proceed as a secret postal ballot.4
[4] I included at point 5 of the initial directions a requirement that the Respondent notify
the Applicant of any meetings it intended to hold, which were not conducted on a Teys owned
or operated site, with employees for the purpose of explaining the ballot process and its
position on the ballot, and that the Applicants be given a reasonable opportunity to participate
in such meetings and explain to employees its position on the ballot. The genesis of the
inclusion of this point in the directions was that the Respondent indicated its preference for
holding discussions at a local level with employees and referred to right of entry issues the
AMIEU had been having with the site owner and a preparedness of the Respondent to have
off-site meetings on employee’s days off.5
[5] The AMIEU did not support the making of directions that included a requirement for
the conduct of site meetings but requested that if the employer intended to hold such meetings
they be notified and given an opportunity to be involved.6 This issue is relevant because the
Respondent raised in the course the hearing that meetings subsequently conducted by an
AMIEU official with employees of the Respondent without the participation of a
representative of the Respondent were a breach of the spirit of the directions order. I do not
accept this as for reasons set out above the direction on that point placed an obligation on the
Respondent because of its stated intention to hold such meetings, not the Applicants.
[6] On 26 April 2013 I proceeded to issue directions setting out a process for a secret
ballot and the filing of statements and submissions. On 8 May 2013 the Respondent wrote to
the Commission advising that the proposed ballot agent, being the Australian Electoral
Commission would be unable to post out the relevant material in keeping with the timetable
and an issue had arisen between the parties regarding the Respondents statement. I listed the
matter for 10 May. Some delay and greater cost in conducting the ballot occurred on the basis
that the parties were unaware that in order to protect the integrity of the process the AEC
insists on conducting its own language translations of material.7 The appointment of the AEC
and amended directions were settled by agreement between the parties at this hearing and I
issued amended directions on 13 May8 to accommodate requested changes for further time
for the conduct of the ballot and the filing of statements and submissions.
[7] On 7 June 2013 the Respondents sought an extension for the filing of material. An
extension was granted and the Respondents material was to be filed by Wednesday 12 June,
and the Applicants by Thursday 27 June. On 28 June the Respondent sought orders requiring
four persons to attend which were granted, although the Respondent later advised the
Commission it only required 1 of those four to attend and give evidence.
[2013] FWCA 4490
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[8] The matter was listed for hearing of the substantive matter on Thursday 4 and Friday 5
July 2013. At that hearing the Applicants were represented by Mr Dalgleish of the AMIEU
and the Respondents by Mr Murdoch Queens Counsel. At the commencement of the hearing
the Respondents raised three preliminary matters. Firstly, a matter concerning the 28
authorities of persons named as the applicants and the standing of those persons. Secondly,
the Respondent advised that it had requested an adjournment from the Applicants
representative in order to obtain from an economist expert evidence to respond to material put
in the statement of Mr Norris. Thirdly, the Respondents raised concerns regarding the
Declaration of Results from the Australian Electoral Commission ballot. I will deal with each
of these points in turn below.
CONSIDERATION
[9] Item 16 of Schedule 3 of the Transitional Act provides:
“16 Collective agreement-based transitional instruments: termination by FWA
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with
termination of enterprise agreements after their nominal expiry date) applies in
relation to a collective agreement-based transitional instrument as if a reference to an
enterprise agreement included a reference to a collective agreement-based transitional
instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the
agreement’s nominal expiry date is taken to be the end of the period of the
agreement.”
[10] Subdivision D of Division 7 of Part 2-4 of the Act reads as follows;
Subdivision D—Termination of enterprise agreements after nominal expiry date
225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the
following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under
section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to
do so; and
[2013] FWCA 4490
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(b) the FWC considers that it is appropriate to terminate the agreement
taking into account all the circumstances including:
(i) the views of the employees, each employer,
and each employee organisation (if any), covered
by the agreement; and
(ii) the circumstances of those employees,
employers and organisations including the likely
effect that the termination will have on each of
them.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination
operates from the day specified in the decision to terminate the agreement.
Authorities to act
[11] Attachment LGN 4 to the statement of Lee Norris9 was said by him to be the authority
of the AMIEU to act on behalf of 28 individuals applicants named as such in the application.
The attachment LGN 4 actually included copies of 31 forms titled ‘Authority to Act’. The
first six of those included a handwritten date above where the form had been signed. The
Respondent criticised the authorities as they were not witnessed, there was no notation as to
whether an interpreter had been engaged for the purpose of interpreting the document, and
most of them were undated. The Respondent called for the original forms to be provided.10
The Applicants representative provided a bundle of documents to the Respondent, some of
which were originals and some not. The bundle did not correlate completely with the forms at
Attachment LGN 4. Mr Dalgleish advised that the authorities had been completed by
employees at the Tamworth and Wagga Wagga sites.11 He advised the forms were collected
by Mr Mark Perkins from the New South Wales Branch of the AMIEU, and Mr Grant
Courtney and Hongling Ji, both from the Newcastle Branch of the AMIEU.
[12] The Respondent provided a document setting out five tables listing the 28 persons
named as applicants in the application, a comment whether they were still employees had
resigned or were ever employed, their nationality, native language and view about their level
of English.12 I made a ruling that I was satisfied to proceed on the basis of submissions and
material available at that point that the Applicants representative had at least one authority to
act in the matter and the position concerning all of the authorities could be dealt with in the
course of the matter.13
[13] Mr Dart gave evidence that the Afghani names provided on the authorities were from
the Wagga Wagga site, or at least the majority of them.14 Mr Dalgleish foreshadowed on
Thursday 4 July that the Applicants would be calling AMIEU Organiser Mr Mark Perkins to
give evidence about the meetings he conducted with a translator in order to obtain the
authorities.15
[2013] FWCA 4490
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[14] Meg Giles, the Workplace Relations Manager of the Respondent gave evidence that of
the 28 employees named as applicants 5 of those were no longer employed by the
Respondent, and that there was no record of 3 others having worked for the Respondent.16
[15] Mr Norris was asked why he did not make provision on the form for it be witnessed.
He said he didn’t think it was necessary. 17 Mr Norris was asked why the dates on many of the
forms were left blank and he said he was advised they were done more or less on the same
day.18 Mr Norris said he understood Mr Perkins was involved in obtaining the bulk of the
Hazari Afghanistani authorities.19 Mr Norris said he received the authorities through the mail
and typed the names that he had on hand from authorities received in the mail and lodged the
application.20
[16] Mr Norris said a Memorandum was sent from Mr Crawford the Secretary of the
Queensland Branch regarding the Agreement.21 The Applicants tendered the minutes of the
Federal Executive of the AMIEU held on 7 and 8 March 2013 which recorded a report that
Mr Courtney had provided authorities from the Tamworth site to support the application, and
that Mr Perkins was intending to meet with employees of the Respondent at Wagga for the
same purpose.22
[17] Mr Dalgleish presented a copy of the list of applicants with numberings in order to
reconcile that list with the authorities provided in the attachment to the statement of Mr
Norris. He conceded that the first, second and fourth fifth and sixth authorities of Karem
Bakhash Alizadah, Mohummad Juma Rajabzeda, Wei-Rong Liao, Lai-Pin-He or Chen Chi
Fei were not pressed as they were never on the list of applicants and they were included in the
bundle of authorities by Mr Norris in error as these authorities were provided after the
application had been filed. 23
[18] Mr Dalgleish explained that the authorities provided by Chien Ting Chao, Chou Chin-
Huan and Ng Hon Wang were not in the bundle attachment to the statement of Mr Norris but
were in the material provided that day.24
[19] Mr Norris provide a copy of an email dated 18 February 2013 to Mr Donzow and Mr
Perkins attaching a copy of the authority he was seeking assistance from the New South
Wales and Newcastle Branch officials in having completed by employees of the
Respondent.25 He said other discussions occurred with officials about the issue before and
after the sending of the email.26 A further email was provided from Mr Courtney of the
Newcastle Branch to Mr Norris dated 4 March 2013 attaching copies of signed authorities.27
Mr Norris said he had held extensive discussions with Mr Courtney and Ms Hongling Ji, (who
he said spoke four languages) in January 2013 about obtaining authorities.28 He said Ms
Hongling targeted the Tamworth site.
[20] Mr Norris agreed the other authorities came from Mr Perkins.29 Mr Norris said he had
verbal advice from New South Wales Branch officials that they had a successful meeting and
authorities were on the way which came in one batch in the mail.30
[21] Mr Norris conceded that the authority marked with the name ‘Asmatali’ should not
have been included in the bundle.31 Whilst many of the authorities are undated it is clear that
[2013] FWCA 4490
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with a few exceptions the Applicants representative accepted should be excluded, they were
provided to Mr Norris before the application was filed on 26 March 2013.
[22] Mr Perkins, an organiser with the New South Wales Branch of the AMIEU gave
evidence that he was responsible for members at the Teys Australia plant at Wagga Wagga.
He said in early March 2013 he was contacted by Daniel Harris from the Wagga
Muilticultural Centre concerning migrants working for the Respondent at the Teys plant who
had approached him about their employment conditions.32
[23] Mr Perkins said a meeting was arranged for a Saturday morning. Subsequent to the
discussion with Mr Harris he said he spoke to Mr Crawford and Mr Norris of the Queensland
Branch and was made aware of the application to terminate the Agreement and the need to get
employees to provide authorities in order for the AMIEU to bring the application.33 It was
put to him during cross examination that he had received an email on 18 February from Mr
Norris concerning the application. He said he did not do anything about it at the time because
he had no contacts at the site at that time.34
[24] Mr Perkins described a meeting he attended on Saturday 16 March at the Multicultural
Centre which was also attended by Daniel Harris and an interpreter called Naseem who he
was told could speak Farsi and two Afgani languages. He said there were about 40 in
attendance. He said Naseem interpreted for him at the meeting as he spoke to the workers
including an explanation of the application. He said he distributed the authorisation forms.
He said he was asked questions which he answered. He said many of the workers signed the
authorities, some took them away and others asked for a form for their friends.35 He said he
personally saw the majority of the forms signed.36
[25] Mr Perkins said after the meeting he took the authorities back to the Sydney office and
forwarded the signed authorities to the Queensland Branch.37 38
[26] I have considered all of the evidence going to this matter, particularly that of Mr
Norris and Mr Perkins and I am satisfied that despite some deficiencies in the manner in
which the authorities were provided (many forms were undated and were not witnessed) the
AMIEU was given authority to act on behalf of 24 employees of the Respondent prior to
filing the application. I have excluded from that number authorities provided by Karem
Bakhash Alizadah, Mohummad Juma Rajabzeda, Wei-Rong Liao, Lai-Pin-He or Chen Chi
Fei and Asmatali for reasons set out above. I have included in the 24 authorities provided by
Chien Ting Chao, Chou Chin-Huan and Ng Hon Wang as the evidence was that they had
provided authorities to the AMIEU, although this was not initially provided in an attachment
to statement of Mr Norris. I have excluded persons named in the application that Ms Giles
said she could find no record of them ever having been employed by the Respondent. I have
included in the number employees who resigned after the date of filing the application.
Economic Evidence
[27] The Respondent said at the commencement of the hearing day on 4 July that it wanted
to bring its own expert economic evidence in response to the economic evidence in the
statement of Mr Norris contained in paragraphs 101 through to 142. The Applicants
representative rejected the Respondents request for an adjournment before the hearing. The
[2013] FWCA 4490
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amended directions order required that the Applicants statements and submissions be
provided to the Respondent by Monday 24 June 2013. The directions were amended again
following a request from the Respondent for more time. This led to a consequential extension
for the Applicants to Thursday 27 June which was complied with by the Applicant.
[28] I ultimately agreed to allow the Respondent to file further material on a limited basis
that it was only in response to the economic arguments in the statement of Mr Norris, and on
the basis that the hearing proceed as scheduled with the further material to be filed within two
weeks. I accepted the Respondents submission that the manner in which the directions were
settled (as agreed between the parties) required the Respondents to file their material first
which gave them a limited opportunity before the hearing to raise the matter of responding to
the Applicants economic evidence which was provided the week before.39
[29] Paragraphs 101 to 142 of the statement of Mr Norris are the relevant parts of his
statement for the purpose of the additional material filed by the Respondents which was in the
form of a nine (9) page report prepared by Dr Selwyn Helibron, a Director of SG Helibron Pty
Ltd who specialise in economic and policy consulting. The report was titled “Economics of
the meat industry - review of the extract from Statement of Lee Norris” and was admitted into
evidence.40
[30] Mr Norris said contrary to popular themes the industry is not shrinking and pointed to
statistics that the national slaughter of cattle and calves is predicted by the Australian Bureau
of Agricultural and Resource Economics (“ABARES”) to increase.41 Mr Helibrons report
discussed the constraints on Australian meat processors who depend on export markets in
being able to pass on increases in costs, and pointed to variability and contractions in the
value of exports measured in Australian dollars.42
[31] Mr Norris referred to significant productivity improvements achieved in the industry
through rationalisation of plants in the 1990’s and gave the example of the daily kill level at
the JBS Australia Pty Ltd plant at Dinmore compared to the early 1990’s delivering returns on
fixed assets, reduced unit costs and economies of scale.
[32] Mr Norris said the economies of scale were one of the reasons Australian meat
processors can offer processed beef more cheaply than for example the local Indonesian
market, which makes a myth of the argument that Australia cannot compete due to labour
costs. He also referred to the United States processors that have access to a free trade
agreement with Korea providing an advantage against Australia however the U.S processors
are still unable to compete with Australian pricing. Mr Norris also said any gains in labour
costs for Australian producers would be lost by accelerated tariff and quota barriers. Dr
Helibron said price competitiveness can reflect many different factors and can change from
time to time. He pointed out that the comparisons made by Mr Norris did not compare like
with like in that U.S beef is almost entirely grain fed. He also said the argument of Mr Norris
concerning trade barriers swallowing up any labour cost competitiveness did not take account
of beef trading partners being members of the World Trade Organisation, which means tariffs
and quotas are generally bound.
[33] Mr Norris also referred to the Australian industries “clean and green” image compared
to its competitors in regard to issues such as Foot and Mouth disease, and BSE (Mad Cows
[2013] FWCA 4490
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disease). Dr Helibron indicated this advantage only applied in relation to markets that
demand freedom from these diseases, and such freedom can be lost and regained
intermittently.
[34] Mr Norris said livestock prices accounted for 70% of the operational expenditure of
meat processing companies and this was one of the most significant factors affecting
competitiveness. This can be affected by climatic conditions. He referred to ABARES
forecasts that indicate it is expected livestock prices will continue to remain favourable. Dr
Helibron acknowledged cattle prices were a major proportion of total processing costs but
said this was a factor beyond the control of processors and that a confidential survey covering
more than half the industry indicated more than 45% of non-livestock costs were attributed to
labour costs.
[35] Dr Helibrons report concluded as follows:
“Fundamentally, the fact that livestock prices have been depressed in recent months as a
result of drought conditions, that world prices for beef have been reasonably firm in
foreign currency, and that profitability of processors might have increased accordingly,
does not warrant a conclusion that this situation is sustainable longer term.
Given the inherent volatility in livestock prices and all the other factors that can serve to
adversely impact the profitability of meat processing (notably including exchange rates),
and given the perpetually low margins prevailing in the industry, processors would be
justified and economically prudent to save the benefits of short term positive margins for a
return to adverse conditions.
This could be said to reflect not acceptance and perpetuation of a ‘doom and gloom’
scenario, but rather a prudent and rational perspective on the fundamental conditions
prevailing in the industry.”
[36] To some degree the evidence of both Mr Norris and Dr Helibron seek to make
predictions of potential future economic circumstances the industry may be confronted with
based on various sources of evidence drawn from economic and statistical reports. I have
given consideration to the evidence of Mr Norris and Dr Helibron concerning economic
factors affecting the meat processing industry but I do not believe it necessary to discuss all of
that material here. Mr Norris generally suggests the industry is perpetually seeking to paint a
gloom and doom scenario which is not borne out by the facts.
[37] The report of Dr Helibron warns of the need for caution, and presses the view that it
cannot be assumed current levels of profitability are sustainable in the longer term given
volatility in factors that can impact on meat processors and that it is rational and prudent for
meat processors to be prepared for less favourable times.
[38] I accept that the meat processing industry is more exposed to potential for volatility
caused by external factors than many other industries. However I am satisfied the economic
evidence regarding the current state of the meat processing industry, and potential for future
fluctuations in it, does not give rise to such a level of concern that it would be contrary to the
public interest for me to terminate the Agreement because of that evidence.
[2013] FWCA 4490
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Result of Ballot
[39] The declaration of results issued on 3 June by the AEC were that 59 people returned
ballots out of a total eligible 475 employees, of which 41 voted yes. Ballot papers returned
undelivered for the AEC ballot were 53, and ballot papers not returned were 359. The ballot
turnout was 12.42%. The Respondent claimed the process was a failure.43 I made a ruling in
the course of the matter in response to the raising of the low number of ballots cast as a
preliminary point by the Respondent, that I did not intend at this late stage to revisit this
matter by allowing further time for parties to go back out to gain further information in regard
to the requirements of s. 226(b)(i) in so far as it related to the views of employees.
[40] My ruling was on the grounds that the approach that had been adopted in the matter of
arranging for the conduct of a secret postal ballot by the Australian Electoral Commission
independent of both parties at considerable expense that included the provision of language
translations of both the competing ‘yes’ and ‘no’ cases in the many different languages of the
employees was sufficient, and to further delay the matter would be inconsistent with my
obligations under s.577 of the Act.
[41] I compared the submission of the Respondent with the approach adopted by the
Commission for the purpose of approval of enterprise agreements that involves the daily and
routine approval of enterprise agreements where the ballot result demonstrates a majority of
employees voting yes satisfied the requirement at s.182 (1) for the making of an agreement
despite that majority who voted regularly being a minority of employees.44 It is worth noting
that Subdivision D of Division 7 of that Act falls with Part 2-4. The requirement for the
making of an agreement and its subsequent approval in Division 4, or for variation or
termination of an in-term agreement in Division 7 does not require the support of a majority
of employees; only a majority of those who vote subject to other legislative requirements for
proper consultation. I do not accept that the ballot as conducted by the AEC was a failure
based on the number of ballots returned.
[42] Mr Norris also gave evidence that of the 475 employees balloted in respect of the
application, he estimated only approximately 260 are actually supplied to host employers
under the strict terms of the AWX Agreement.45 The Respondent conceded that employees
covered by the AWX agreement, at Teys Australia in Central Queensland and Brismeats were
being paid site or award rates rather than the Agreement rates.
[43] Meg Giles, the Workplace Relations Manager of the Respondent said in her statement
that on or around 13 May the Respondent notified its employees that a vote would be taking
place regarding the Agreement and most employees were informed face to face as they were
entering or existing work. She said translators were on hand to ensure employees understood
what was happening, and a handful of employees were contacted by phone.46
[44] She said further that on 22 May the Respondent followed up with all employees on the
issue of the vote, either by telephone or email. She said the majority of Korean and Taiwanese
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employees prefer to be contacted by email so emails were translated into relevant languages
for those employees. She said on 21 May the AEC sent out envelopes containing the
Respondents Statement of Support, the Union’s Statement and the ballot paper.47
Translations of the information were provided in Korean, English, Simplified Chinese,
Traditional Chinese, Filipino, Japanese, Burmese, Sinhalese, Tamil, Hazaragi, Dari, Farsi,
Urdu, Malay and Hindi.
[45] Mr Norris also gave evidence that according to material he obtained from the Office of
the Fair Work Ombudsman at the time the Agreement was approved it only covered 42
employees, 30 of whom did not have English as their first language which means that more
people voted in the ballot to terminate the Agreement then the total number of employees who
were employed under it at the time the Agreement was first made in late 2006.
[46] The Respondent in submissions referred to Section 226(a)(i) and the mandatory
requirement to have regard to the views of employees. The Respondents referred to a
decision of Commissioner Lee in Victorian Canine Association T/A Dogs Victoria 48and
particularly paragraph 31 of that decision. The circumstances the Commissioner was
addressing in that part of his decision dealt with an individual employee who would be
disadvantaged in their terms and conditions by the termination of an agreement and who
opposed the application. Those circumstances can be distinguished from this case in that
there is no evidence before me that any employees will be at a disadvantage in their terms and
conditions of employment compared to those applying under the Modern Award should the
application be successful. His ultimate decision to decline the application to terminate was
also based on a concern that it would alter the status quo in bargaining. No such concern
exists in this case as no bargaining is taking place.
[47] The Respondents also referred to Skye Mitchell & Ors v Skilled Communications
Personnel Pty Ltd 49 where only 4% of employees supported the application. In that matter
there were approximately 430 employees to whom the Agreement applied and these
employees worked at 19 sites, one of which was the site at which 10 individual applicants
who supported the application were employed. Commissioner Roe dismissed the application
for termination in that matter for reasons including that the 10 employees represented less
than 4% of employees. His decision does not refer to any other evidence before him
concerning the views of the remainder of employees across the other 18 sites. He also took
into account the views of the union party to the Agreement the NUW, and of the Employer
who both opposed the termination of the Agreement. Further he took into account
submissions from the NUW and the Employer that new collective agreements had been
negotiated for some of the employees previously covered by the agreement in question and
that there was an intention and a commitment to negotiate new collective agreements for the
remaining employees including the 10 applicants. The circumstances in Skye Mitchell can be
distinguished from this matter for these reasons and also because, unlike in that matter, all the
employees affected in this matter have been given an opportunity to participate in an
independently run secret ballot conducted by the AEC.
[48] Following a low turnout in the ballot Ms Giles instructed supervisors at the various
sites to speak to employees and ascertain why a minority voted. She said when doing so each
supervisor had each employee write in a table containing their name, position/level, location
and reason for not voting. She attached to her statement the tables she received from the
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various work sites. The supervisors themselves were not called to give evidence. She
conceded the surveys were not translated into employee’s languages for the employees and
were completed in English.50 51 She did say translators were present although there was no
direct evidence from translators. It was put to her in cross examination that the surveys were
unbalanced in the way they were framed, and that the questions were all leading questions
with built in assumptions. When it was put to her that the survey was not confidential she
said employees did not have to participate.52
[49] The first question in the survey stated “If I was unhappy with my terms and conditions
I would have voted”. The second stated, “I did not care either way.” It is interesting to note
that many of the survey responses appear to come from the Brismeats and Central Queensland
Teys sites, at which according to the evidence the employees have not being paid under the
Agreement since last year, but are being paid at under the Modern Award or site conditions in
any event. Under the circumstances it may well be such employees formed the view that the
outcome of this matter had no direct bearing on them as they were already receiving the
outcome that the application sought.
[50] Mr Perkins said he held a meeting with employees of the Respondent on 25 May 2013
to update them on the application and to let them know about the secret ballot by the AEC.
He agreed that he had asked Daniel Harris to arrange the meeting.53 He said this meeting was
held at the Multicultural Centre, was also attended by Daniel Harris and a different
interpreter, Niamat Mehtes. Mr Perkins said he was told Mr Mehtes could speak Farsi and an
Afghani language. He said he spoke to workers and answered questions and conducted a
similar meeting that day at the local TAFE with employees of the Respondent which was also
attended by the interpreter. 54
[51] Mr Perkins said in cross examination he extended an invitation to Meg Giles of the
Respondent to attend the meeting. He accepted that he did not extend the invitation until
10.03pm by email the night before the meeting.55 56 He also said he was not invited to any
meetings with employees by the Respondent.57 Mr Perkins said a couple of employees had
ballot papers with them at the meeting but that they did not fill them out in the meeting.58 The
Respondent sought to criticise the conduct of Mr Perkins because he extended an invitation to
Ms Giles to attend the meeting at the cultural centre at a time when he would have known she
would be unable to attend at such short notice. Having read the email he sent to her59 and
hearing his evidence I am not convinced his motivation was to prevent the Respondent being
represented. The invitation was extended to anyone from the Respondent, and as the
Respondent had a presence at the plant in Wagga Wagga it is conceivable he may have
thought a local representative of the Respondent may have been available at short notice. In
any event there was no compulsion on the AMIEU to extend an invitation to the Respondent.
As discussed at paragraph five (5) in this decision the FWC directions including in regard to
the conduct of the ballot placed a requirement on the Respondent not the Applicant for
reasons dealt with earlier. Further there is no evidence the Respondent invited the AMIEU to
be present when it arranged to speak to its employees on 13 May about the ballot on entering
and exiting work.
[52] The criticisms levelled at the manner in which the survey was conducted by the
Respondent by the Applicants representative during cross examination of Ms Giles are valid
criticisms. They were summarised in closing submissions.60 Based on those criticisms I do
[2013] FWCA 4490
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not intend to accord the survey significant weight as a basis not to rely on the ballot
conducted by the AEC.
[53] The evidence indicates efforts were made by the AMIEU and the Respondent over and
above the ballot process itself including the distribution of explanatory material in all of the
relevant languages in order for employees to consider the competing arguments before voting.
The Respondent had face to face discussions on 13 May with interpreters present as referred
to above to explain the process. Ms Giles said the Respondent followed up employees by
phone or email on 22 May. Certain employees were provided email based on their known
preferences and the Union separately arranged face to face meetings at certain sites. Part of
the explanation for the low number of ballots returned may well be as discussed above that
the outcome of the ballot would have no direct bearing on the wages and conditions of many
employees being balloted and hence saw no reason to participate. For all of the reasons set
out above I am satisfied that the results of the secret ballot conducted by the AEC are
sufficient for me to be capable of taking account of the views of the employees for the
purposes of this application.
The Agreement
[54] The Respondent called Mr Cameron Dart, a Director of the Respondent who explained
that the Respondent supplies labour to the meat industry but also to other industries.61 He
described the meat industry as a price taker not a price maker. He said the Respondent
predominantly supplied labour to meat processing facilities in regional, rural and remote
areas.62
[55] Mr Norris attached to his statement documents obtained through a freedom of
information request to the Fair Work Ombudsman63 that disclosed that 42 employees who
were all casual were employed by the Respondent when the Agreement was first made, and
that 30 of the 42 had a language other than English as their first language.64 He said that the
Agreement was made at a time when it was possible under s.354 of the WR Act to completely
exclude the operation of “protected” award conditions such as penalty rates and allowances.65
[56] Mr Norris said the AMIEU became aware of the existence of the agreement in
August/September 2012 when industrial issues arose at both the Brismeats site at Ipswich,
and the Teys Australia Central Queensland site at Rockhampton.
[57] The Secretary of the AMIEU Mr Crawford wrote on 14 November 2012 via email66 to
Mr Dart of the Respondent seeking a meeting for the purpose of discussing the entering of an
enterprise agreement to replace the Agreement. Mr Dart responded via email67 indicating the
Respondent was happy with their current industrial arrangements and had no intention to enter
negotiations for a new agreement. A subsequent meeting occurred on Monday 26 November
2012 where Mr Dart’s position remained unchanged.68 69
[58] Mr Dart gave evidence in the hearing that he wanted the Agreement to continue but he
was not sure for how long.70 He agreed at the hearing his position on not negotiating a
replacement agreement remained unchanged.71
[2013] FWCA 4490
13
[59] It was put to Mr Norris that the employees have available to them a number of
powerful weapons including protected action. Mr Norris responded by saying that is so if
employees are well organised and fully aware of what their rights are.72 He indicated with
this particular group of employees that would be difficult.73 Mr Norris said that the position to
negotiate would improve if the employees could at least get to the Award.74
[60] It was put to Mr Norris that there was no provision in the Modern Award to
specifically accommodate the training of persons who come in as adults and enter the meat
industry needing total training. He rejected that proposition on the basis that the level 1
classification was for that purpose.75
[61] Mr Dart gave evidence that the Respondent was able to provide a fixed quote to a meat
processor regardless of when and under what conditions the labour is supplied because the
2006 Agreement allows this through its flat rate of pay for all hours.76 He said when the
Respondent supplies labour to a host employer the host employer usually looks for a certain
fixed period, generally two years. He said the Respondent is currently half way through a
contract with a large host employer.77 He said there is no real avenue to renegotiate the rates
during the term of a contract.
[62] Mr Dart argued that backpackers want to work as many hours as possible and move
on, and therefore prefer a flat rate to ordinary time and penalty rates as this restricts the ability
of the employer to offer them certain hours.78 There was no supporting evidence for him to
draw this conclusion other than saying it was his experience.79
[63] Mr Norris responded to this by saying that the Respondent did not have the ability to
quote a flat hourly rate of pay for all hours worked to all clients it supplied labour to based on
the evidence concerning the number of industrial arrangements it had that included detailed
prescriptions for hours or work, overtime, penalty rates and allowances.80
[64] Mr Dart was referred to the audited accounts of the Respondent attached to the
statement of Mr Norris 81 which stated that in the 2010/11 financial year the Respondent made
a net profit after tax of $2,366,167 with a fully franked dividend of $925,000 paid to
shareholders and in the 2011/12 financial year $2,720,950 with a fully franked dividend of
$1,500,000 paid to shareholders. He said as a percentage of turnover this was in the range of
2 to 3%.82 He said he believed the Respondent was in the normal range of its major
competitors, and the dividends distributed were well within the range of many reputable
companies on the ASX.83 He agreed the Respondent was profitable but could be doing a lot
better.84
[65] The Respondent did not put any qualitative evidence before me about the financial
impact of changing the pay arrangements for its employees who are still paid on the
Agreement. This has made it difficult to form a clear view on the extent of the impact on the
profitability of the Respondent.
[66] The Respondent claimed that if it were to cancel a contract because of a decision to
terminate the Agreement it could potentially be sued by clients for breach of contract. The
Respondent did not put into evidence any contracts that it was a party to with a host
employer.85
[2013] FWCA 4490
14
[67] Mr Norris said that the facts did not support this claim in that with Teys the
Respondent paid site rates until June 2012, then the rates were paid as per the Agreement, and
then in December 2012 it went back to site rates, and the same applied to Brisbmeats.86 It was
put to Mr Norris the Respondent was “taking the knock” for these changes.87
Other Industrial Arrangements of the Respondent
Country Choice
[68] Mr Dart was referred to an agreement the Respondent made which also covers the
AMIEU and applies to employees of the Respondent supplied to the Australian Country
Choice group of companies at their meat processing facility at Colmslie, Brisbane. Mr Norris
gave evidence that a number of the employees at this site were on humanitarian visas and this
agreement provided hours of work, overtime, penalty rates and allowances in similar terms to
the Modern Award.88 Mr Dart said those arrangements reflected their contractual
arrangements with that host employer.89
Brisbmeats and Teys
[69] Mr Dart said in December 2012 the Respondent made an agreement with the AMIEU
90 to transition employees to the Modern Award and subsequently to the host employer rates
due to a negative media campaign run by the Union. The agreement itself indicates that
employees of the Respondents at the Rockhampton and Biloela sites of Teys Australia were
transitioned to relevant Teys agreement pay and conditions on those site. The Respondents
employees at the Brismeats Churchill site were transitioned to the Meat Industry Award. Mr
Dart said that because of these changes the business was adversely affected, causing a
reduction in the workforce at those sites.91 No specific evidence was provided by Mr Dart in
support of this general evidence. He later confirmed this evidence concerning pay and
conditions at these sites.92
[70] Mr Dart said that he was aware of competitors of the Respondent who deprive workers
of basic entitlements such as superannuation and workers compensation through contracting
arrangements. He said these entities avoid State and Federal Taxes such as Pay Roll Tax and
PAYG.
[71] Mr Norris gave evidence that at the Brismeats plant which is an operation of
Woolworths Ltd, the decision to replace an existing labour hire entity known as Queensland
Recruitment Co whose workforce was mostly local workers from around the Ipswich area,
with the Respondents workforce who were mainly sub-class 417 visa holders was taken
around August 2012.93
[72] Mr Dart accepted the majority of Queensland Recruitment Co’s workforce were locals
94 and that the Respondents workforce did take these roles over, however added those
employees were offered employment with the Respondent.95 Mr Norris claimed the ability of
the Respondent to undercut the conditions in the Modern Award was a major factor in the
displacement of Queensland Recruitment Co.96 Mr Dart accepted that price would be one of
the factors taken into consideration.97
[2013] FWCA 4490
15
Other Agreements
[73] Mr Norris referred also to the AWX Farming Employer Greenfield Agreement 2009-
2012 which made provision for payment of overtime and penalty rates, and certain
allowances.98 Mr Dart said this agreement was no longer utilised.99
[74] Mr Norris also referred to the AWX Constructions Pty Ltd T/A X Partners in People
and CFMEU Union Collective Agreement 2009 - 2011, an enterprise agreement made under
the Fair Work Act which included penalties and allowances, “site uplifts” site allowances,
travel allowances, penalty rates for overtime of the choice of 68% “all-up” loading. 100
Other Awards
[75] Mr Norris also gave evidence that in terms of the expressed business activities of the
Respondent potentially eight different Modern Awards would apply which all provide
prescriptions for hours of work, overtime, and the payment of allowances.101 Mr Dart
accepted that the Respondent also supplied labour to the construction, landscaping, aged care,
mining, manufacturing and hospitality industries. Mr Dart said most employees were covered
by site EBR’s. He could not give particulars on those Agreements but agreed they would pay
equal to or higher than the Modern Awards.102 It was put to him that 70% of his business is
covered by arrangements including prescribed hours, overtime, penalties and allowances. He
estimated that it was maybe 50%.103 He also said these employees were very much local
employees.104
Casual Employment
[76] Mr Dart said the Respondent had a high turnover of staff as most casual employees
transition to the host employer and this is a significant expenditure.105 He said the refugee
workers want to work as many hours as possible because they arrive with little or no income
and also wish to send money home to their families.106
[77] Mr Dart gave evidence that the Respondents choice is to use casual employment as it
assists in managing the ups and downs of the industry.107 Mr Norris gave evidence that the
Meat Industry Award 2010 allows the flexibility for an employer to utilise employment
arrangements that include weekly fulltime, regular daily hire or casual employment, and the
flexibility exists under the Modern Award for the Respondent to deal with the exigencies of
the industry.108 Mr Dart accepted that the Modern Award allows for casual employment,109
110 and it could suit his business needs in certain cases.111
Support for Resettlement and Training
[78] Mr Dart said the Respondent has a number of translators on site to assist employees in
up-skilling and training. These translators also help with other issues to help workers
integrate in the community. Mr Dart said the Respondent had partnered with Multicultural
Development Association (MDA) over the past 5 years to supply training, employment and
long term career prospects.
[2013] FWCA 4490
16
[79] Mr Dart said the Respondent finds the employees and their families’ accommodation,
processes their pre-employment requirements (e.g fitness testing) ensures they are connected
to the local migrant community and provides them with pre-employment skills, training in
workplace health and safety and conducts inductions. Mr Dart referred to a ‘Private Business
Award’ the Respondent had received for services in the area.112 He said that the Respondent
met all the costs of the resettlement process which can be around $2,800 per person.
[80] Mr Dart also said the Respondent invested a significant amount of time and money in
training both before and after an employee is placed with a host employer.113 He said it
usually takes 6 to 9 months for an employee to get up to speed on all of the particular aspects
of the role, and that an employee’s productivity improves over time. He said most employees
work for the Respondent on a casual basis for 8 or 9 months and after that period of time the
employee will generally have sufficient training, skills and experience to obtain direct
employment with the host employer.
[81] He said AWX has not been very successful at recruiting local labour in towns where
meat processors are located. He said they generally supply two types of workers to host
employers, backpackers, and refugees from foreign countries.114 He said the Respondent
dealt with 23 different nationalities.115 He said in regard to refugees that as they tend to settle
in urban areas they lack the skills and experience for employers however the Respondent can
offer them on the job training and work in meat processors in regional areas which allows
them to gain meaningful work and a career in the meat industry.116 117
[82] Mr Norris claimed that some meat processing companies in rural and regional areas of
Australia are experiencing labour shortages, including for semi-skilled and unskilled labour,
and that if the Respondents Agreement were terminated this demand would still have to be
met. Mr Dart agreed that if the Agreement was terminated demand for labour would still
exist.118
[83] Mr Norris said a number of Australian government funded services assist in the
resettlement process for workers on visas such as those employed by the Respondent, the
principal grant program being the Humanitarian Settlement Services which includes
interpretation services, settlement grants, an adult English program and complex case support.
He gave an example of a non-government organisation accessing this funding to assist
humanitarian entrants take up employment with Teys Australia in Biloela and Rockhampton.
[84] Mr Norris challenged Mr Darts’s evidence of a cost figure of $2800 per person for
resettlement on the basis that he had viewed payslips of employees of the Respondent that
made deductions for accommodation if arranged by the Respondent. He also said the
Respondent made deductions for Q Fever vaccinations of up to $300. He said induction and
pre-employment training must be met for all employees.119 Mr Dart accepted this, and that
induction and pre-employment was generally done in unpaid time however the language
issues increased the amount of time required.120
[85] Mr Dart said sometimes the Respondent recovers the cost to it of travel, and in other
cases it may be funded by Job Services Authority.121 He said costs included a flight, short
term accommodation, medicals, drug and alcohol test and translation.122 Mr Dart said in
locations like Rockhampton the Respondent would pay the bond for a property and furnish it
[2013] FWCA 4490
17
and then the employee would have the use of the property and to replay the employer costs
over a period of time.123 Mr Dart confirmed in cross examination the Respondent does make
deductions for accommodation costs from employees and also for Q fever vaccinations.124
[86] Mr Norris said that the practical training times to teach an employee doing unskilled
and semi-skilled labouring work in the meat processing industry was very short. He said
tasks are repetitive, some employees rotate through tasks and others do not. He maintained
most labouring tasks could be taught in a day or two.125 Mr Dart indicated the time taken
would vary. He said some jobs could be taught in a day, others may not.126 Mr Dart agreed
the jobs are very repetitive.127
[87] Mr Norris indicated training was performed on the job and the time spent by an
employee standing back whilst receiving instruction was minimal, he suggested perhaps 30
minutes at most. The employee is then expected to keep pace as normal work is performed.128
Mr Dart accepted training is conducted as the employee performs the task,129 however
translation requirements would extend this time.130
[88] The example of an employee given the task of making up cartons was put to Mr Dart
as an example of a task that would take 10 minutes in order to be productive. He accepted
that most likely at the end of a day that would be true but that is not what happens.131 He
accepted an employee packing in the boning room could learn to pack a particular cut in
couple of hours.132 He said it would take maybe two or three days to learn to remove horns
and hocks.133
[89] Mr Norris said skilled labouring positions such as packers in the boning room,
operators or cry-o-vac machinery, and knife hands on the kill floor take a little longer but the
process is similar as is the case for unskilled and semi-skilled labour. It was put to Mr Dart in
cross examination these highly skilled roles of slaughtering, boning and slicing take between
two weeks and three months to learn. Mr Dart thought it would be three months to learn one
cut. 134
[90] It was Mr Darts’s evidence that it usually takes 6 to 9 months for a person to get up to
speed on all of the particular aspects of the role which effects productivity.135 Mr Norris
categorically disagreed with this evidence.136 He said in areas where employees are being
trained additional staffing is not provided.137 Mr Norris said even in the more highly skilled
roles a person who took longer than three months to learn would be considered inherently
unsuitable for the position.138
[91] Mr Shamsul Alam gave evidence for the Respondent. His own language was the
Rohingya dialect. An interpreter was made available by phone to assist him in giving
evidence however the Respondent advised that Mr Alam had some English and was content to
proceed on that basis.139 He said he came to Australia on a Humanitarian Visa in 2012 and
that he came via a detention centre. He said it was difficult to live on the government
assistance he received and he found it difficult to find employment. He said his case worker
referred him to the Respondent and he secured work almost immediately with the
Respondent.
[2013] FWCA 4490
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[92] He said the Respondent helped him to move to Rockhampton and an onsite interpreter
assisted him in the workplace. He later indicated however it was the Red Cross that paid for
his travel.140 He indicated he had a Q fever injection for which he paid through a deduction of
$280 from his first weeks pay.141 He said he paid for his own accommodation.142
[93] He said after nine months employment with the Respondent he moved over to Teys
Australia which he said occurred on 5 May 2013.143 He said Teys have their own interpreter.
144 He said he still works as a janitor at the Rockhampton site in the boning room, which is
the same position he started in.145 146 147 Mr Alam said he took English classes in the detention
centre for six months.148 He said he could also speak Hindi, Malaysian and Bangali which
assisted with interpreting. He indicated he was shown how to do his job and after one week
he did it himself.149 150
[94] His evidence indicated it was the Multicultural Development Association that assisted
him in finding housing and completing a rental agreement.151 In terms of completing pre-
employment health and safety inductions and paperwork he said assistance was received from
an interpreter working in the office who spoke Hindi who could translate for the Burmese
employees.152 He said induction was paid time and lasted for four, four hour days.153
Section 226(a) - Public Interest
[95] I am required to be satisfied it is not contrary to the public interest to terminate the
Agreement. Matters of public interest refer to matters that affect the public as a whole,
distinct from the interests of the parties. (See BHP Coal Pty Ltd Gregory Mine CFMEU
Enterprise Agreement). 154 The public interest test is not one restricted to the immediate
parties, but must be broadly applied. (See Kellogg Brown & Root Pty Ltd and others v Esso
Australia Pty Ltd).155
[96] The key arguments relied upon by the Respondent in regard to public interest were the
profile of the employees covered by the Agreement, the locations they work and the nature of
their work. 156 Mr Dart said the Respondents business would contract if the Agreement was
terminated and as a result so to would the ability for the Respondent to be able to continue to
provide opportunities for refugee workers. 157 The Respondent submitted it would be contrary
to the public interest to terminate the Agreement as it would hinder access to training and
employment opportunities that enable refugees to learn skills and gain competencies which
will assist them in gaining employment. 158
[97] The practical effect of the application if granted would see a proportion of employees
of the Respondent not already paid wages and conditions as good as or better than the Meat
Industry Award 2010 lifted to that minimum standard. This is would be consistent with both
the objects of the Act and the modern awards objective.
[98] The evidence indicated in the case of the Brisbmeats labour hire contract that one of
the reasons that the labour hire company Queensland Recruitment Co was replaced by the
Respondent was that the Respondent could offer labour to Woolworths Ltd at a lower price
than Queensland Recruitment Co. I acknowledge that Mr Dart gave evidence that workers
employed by Queensland Recruitment Co were offered employment with the Respondent, but
it is of concern that it appeared from the evidence that one of the factors that favoured the
[2013] FWCA 4490
19
Respondent in the contest for that work at Brisbmeats was that the Respondent was competing
at a labour rate below the Modern Award safety net. The evidence was also that following
some disputation concerning the matter the Respondent lifted the conditions for employees at
Brismeats to site rates.
[99] The Respondent sought to draw a link between the circumstances of this case and
decisions made by the Tribunal in Metro Velda Pty Ltd Peterborough Enterprise Agreement
2009 159 and Black Crow Organics Organics Enterprise Agreement 2009 160to exercise power
under s. 189 to approve an enterprise agreement that did not pass the no disadvantage test,
because of exceptional circumstances that made approval not be contrary to the public
interest.
[100] In Black Crow the Commissioner found exceptional circumstances existed justifying
approval despite the agreement containing a voluntary extra hours clause, based on the
seasonal nature of the fruit and vegetable industry causing peaks and troughs in available
work for casuals and that casuals employees supported the arrangement as it allowed them to
accumulate savings. The Commissioner said other similar agreements in the industry had
been approved under the existing legislation before a Full Bench Decision in Bupa, and the
agreement would only operate for two years allowing a transition to the Modern Award.
Many of the circumstances relied upon in that matter are not present here to justify retention
of an agreement as opposed to approval in that case. There was no clear evidence regarding
peaks and troughs in labour hours for casual employees as appeared to be relied upon in Black
Crow as a basis for finding exceptional circumstances in the fruit and vegetable industry.
Unlike in Black Crow where employees supported approval, the evidence in this case is that
employees support termination and not retention of the Agreement. The decision in Metro
Velda is distinguishable for similar reasons. The agreement was supported unanimously by
employees, and further the Commissioner indicated he believed the agreement did pass the
better off overall test in any event, but if he was wrong he would conclude it should be
approved based on the employer’s intent to continue to operate despite fierce competition
from Europe in the particular industry.
[101] The evidence does not support a finding that it would be against the public interest to
terminate the agreement because of the impact termination would have on migrant employees
generally. The Respondents business is one of many operating in the meat processing
industry. It is not contrary to the public interest for employees to be receiving wages and
conditions in line with what is now the Award safety net. This would be in keeping with the
objects of the Act and the Modern Award objectives.
Section 226(b)
[102] As set out above I adopt the results of the secret ballot for the purposes of taking into
account the views of employees which is to support termination. The Respondent has made
clear its opposition. There is no employee organisation covered by the agreement.
[103] I have acknowledged above the evidence of Mr Dart that following agreements to
increase pay and conditions at Brismeats and Teys Australia the Respondents business has
contracted somewhat at those sites however it is still present at those sites. While Mr Dart
complained about the impact of termination in circumstances where the Respondent is a party
[2013] FWCA 4490
20
to fixed term contracts that are only partly completed the evidence indicates the Respondent
has had to deal with adjusting its pay and conditions unexpectedly before and continues to
operate at the sites where that has occurred.
[104] Further there is considerable evidence that the Respondents business is not exclusively
dependant on the provision of labour hire in the meat processing industry. The evidence is
that the Respondents business operates across a range of industries in which it provides
industrial conditions for its employees at or in some cases considerably above Modern Award
conditions. For these reasons I do not consider the circumstances of the Respondent, and the
likely effect of termination of the Agreement on the Respondent is a basis to refuse the
application.
[105] Further the evidence of Shamsul Alam was that he was able to obtain assistance from
sources other than the Respondent including the Red Cross for travel and the Multicultural
Development Association in settling into Rockhampton. He was not exclusively reliant on
the Respondent. While there is no doubt Mr Alam initially gained employment through the
Respondent and received assistance from the Respondent, particularly in regard to language
issues he also paid the Respondent for some assistance including his Q fever injection. In
relation to the matter of skills acquisition the evidence was inconclusive. There was a
significant gap between the evidence of Mr Dart and Mr Norris concerning the time the
Respondent commits to training and productivity it loses through that commitment.
[106] The only evidence from an employee performing the work itself was again from Mr
Alam and it was his evidence he learnt to perform his role as a janitor within a week and
essentially performed the same role until he transferred to direct employment with Teys where
he still performs that same role. I do not find the training argument a compelling one to rely
upon as a basis to reject the application.
[107] In contrast the circumstances of employees if the application were not granted would
leave a situation where the Respondent has indicated a clear intention not to make a new
agreement to replace the existing agreement that expired on 23 December 2009. The
evidence of Mr Norris supports a conclusion that because of the nature of the workforce the
employees have a limited capacity to achieve a sufficient level of organisation to bring
industrial pressure to bear on the Respondent to force the issue.
[108] The evidence is the AMIEU had approached the Respondent to request that it agree to
bargain. The Respondent has been critical of the AMIEU for not taking any of the formal
steps available under the Act to seek to commence bargaining with the Respondent. Mr
Norris was I believe direct and to the point in describing the challenges faced by the AMIEU
in attempting to utilise some of the options available under the Act to bring an employer to
the bargaining table given the nature of the Respondents workforce.
[109] Given the workforce is overwhelmingly casual with a reasonably high level of
turnover, are working on various classes of humanitarian or other immigration visa, and
predominantly speak limited or no English the practical challenges for the employees or their
representatives in attempting to bring the Respondent to the bargaining table other than by
agreement are such that I do not intend to find their failure to attempt to do so as a matter that
should weigh against the granting of this application in these particular circumstances.
[2013] FWCA 4490
21
[110] The existing Agreement was made at a time when it was possible under s.354 of the
WR Act to exclude the operation of protected award conditions. This situation was changed
by the introduction of s.346M to the WR Act with effect from July 2007, but that was after
the Agreement was approved by the Office of the Employment Advocate. A copy of the
Agreement was provided with the statement of Mr Norris. 161 The Agreement provides at
Clause 3;
“3. PURPOSE OF AGREEMENT
3.1 The purpose of this Agreement is to provide comprehensively the wages and
conditions of employment for the work described in clause 1.
3.2 This Agreement will operate to the total exclusion of any Award either State or
Federal. NOTE: Unless this Agreement expressly recognises the following “Protected
Award Conditions” which are listed in the Act as Public Holidays; Rest Breaks including
meal breaks; incentive based payments and bonuses; annual leave loadings; penalty rates
and shift/overtime loadings; and monetary allowances, they shall not apply and are either
expressly removed or where appropriate continued on by this Agreement by specific
written reference the particular condition (Workplace Relations Act 1996).”
[111] The evidence was that where the Agreement is currently applied the Respondent
observes the same hourly rate of pay as the Modern Award. The Agreement goes on to
provide that all employees will be engaged as casuals. The Agreement provides casual
employees can work up to 38 ordinary hours in a week or an average of 38 hours over a
particular cycle and work up to 10 ordinary hours per day as ordinary time. Ordinary hours
are to be worked over 5 consecutive days of the week, Monday to Sunday. Clause 7 provides
daily hours can be worked between 3am and 12 Midnight with a maximum of 10 ordinary
hours per day. However Clause 9 provides that all time worked in excess of ordinary daily
rostered hours of work prescribed in Clause 7, will be deemed to be reasonable additional
hours and will be paid the applicable hourly rate in Clause 5.2, which is the same rate payable
for ordinary hours. Clause 11 provides public holidays will be paid at double the hourly rate.
[112] The effect of the Agreement in short is that a casual (all employees under the
Agreement are casual) does not receive any additional payment for overtime, weekend work,
shiftwork or certain allowances that would otherwise be payable under the Meat Industry
Award if it applied. Further the spread of hours is much wider under the Agreement then the
Award. Depending on the hours of work an employee is rostered to work under the
Agreement the potential difference in earnings may be nothing, relatively small, or it may be
very significant. Based on the overall likely effect termination will have on the circumstances
of employees I consider it a factor favouring termination.
[113] In a decision of Watson VP in Energy Resources of Australia Ltd v Liquor, Hospitality
and Miscellaneous Union [2010] FWA 2434 he said as follows at paragraphs 29 and 31;
“[29] In my view it is unreasonable to lock such an agreement in place indefinitely. The
legislative scheme supports the ending of agreement obligations at or after the nominal
[2013] FWCA 4490
22
period the agreement. Termination of the Agreement does not preclude further enterprise
bargaining. Regular revisions and renewal of enterprise arrangements is desirable...”
..............................................
[31] The longer the time after the expiry of the nominal term the stronger the case for
termination. This agreement passed its nominal expiry date almost ten years ago. Where
the continuation of the Agreement could have detrimental affects on the operation and the
level of consistency of terms and conditions of employment the case for preventing
termination is further diminished. I find that this circumstance exists in this case.”
[114] Reasons expressed in the Energy Resources matter are relevant here. Whilst I
acknowledge the length of time since the Agreement reached its nominal expiry is far shorter
than was the case in Energy Resources it is still several years ago and the Respondent has
made clear it has no desire to replace the Agreement. Further, in this case the applicants are
not in a strong position to force the issue. It is also clear from the evidence the terms and
conditions of employment for the Respondents employees are becoming increasingly
inconsistent as far as its workforce in meat processing is concerned which can at least in part
be attributed to the continued existence of the Agreement.
CONCLUSION
[115] For all of the reasons set out above I intend to grant the application to terminate the
Agreement. The Respondent has argued that in the event I find for the Applicants that I
should allow a considerable period of time before giving effect to the decision in order for the
Respondent to take steps to make adjustments to its affairs. I do not think a lengthy period is
appropriate in the circumstances of this case. Several months have elapsed since the filing of
the application. A shorter period of several weeks is not unreasonable. I have determined that
the AWX Pty Ltd Employee Collective Agreement - Meat Industry Employees 2006 - 2009 be
terminated from Monday 2 September 2013.
COMMISSIONER
Mr Dalgleish - The Australasian Meat Industry Employees Union (AMIEU) for the
Applicants.
Mr Murdoch - Queens Counsel for the Respondent
Hearing details:
[2013] FWCA 4490
23
2013
Brisbane
22 April
10 May
4 July
5 July
29 July
Printed by authority of the Commonwealth Government Printer
Price code D, AC304195 PR538682
1 Transcript dated 22 April 2013 PN 58 - 60
2 Transcript dated 22 April 2013 PN 72 - 75
3 Transcript dated 22 April 2013 PN 79 - 81
4 Transcript dated 22 April 2013 PN 84 - 86
5 Transcript dated 22 April 2013 PN 58
6 Transcript dated 22 April 2013 PN 75
7 Transcript dated 22 April 2013 PN 36
8 Email from FWC to parties dated 13 May 2013.
9 Exhibit 6 Statement of Lee Norris dated 27 June 2013
10 Transcript dated 4 July 2013 PN 188
11 Transcript dated 4 July 2013 PN 328
12 Table of names set out by AWX Pty Ltd
13 Transcript dated 4 July 2013 PN 353
14 Transcript dated 4 July 2013 PN 444 - 445
15 Transcript dated 4 July 2013 PN 538
16 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 2
17 Transcript dated 4 July 2013 PN 880
18 Transcript dated 4 July 2013 PN 894
19 Transcript dated 4 July 2013 PN 897
20 Transcript dated 4 July 2013 PN 898
21 Transcript dated 4 July 2013 PN 935
22 Exhibit 8 Minutes of meeting of Federal Executive Item 4 (c)
23 Transcript dated 4 July 2013 PN 1067 - 1081
24 Transcript dated 4 July 2013 PN 1082
25 Exhibit 9 Email from L Norris to Mr Donzow and Mr Perkins Dated 18 February 2013
26 Transcript dated 4 July 2013 PN 1187
27 Exhibit 10 Email from Grant Courtney to Lee Norris dated 4 March 2013.
28 Transcript dated 4 July 2013 PN 1201 -1206
29 Transcript dated 4 July 2013 PN 1249
30 Transcript dated 4 July 2013 PN 1255 - 1259
31 Transcript dated 4 July 2013 PN 1277
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32 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 4
33 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 7
34 Transcript dated 4 July 2013 PN 1749
35 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 8 - 9
36 Transcript dated 4 July 2013 PN 1819
37 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 11
38 Transcript dated 4 July 2013 PN 1825 - 1827
39 Transcript dated 4 July 2013 PN 252 - 253
40 Exhibit 17 Report prepared by Dr Heilbron
41 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 105
42 Exhibit 17 Report prepared by Dr Heilbron page 3
43 Transcript dated 4 July 2013 PN 273
44 Transcript dated 4 July 2013 PN 277 - 291
45 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 46
46 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 4
47 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 8
48 [2013] FWC 4260, PR538397
49 Skye Mitchell & Ors v Skilled Communication s Personnel Decision paragraph 14 - 18
50 Transcript dated 4 July 2013 PN 781
51 Transcript dated 4 July 2013 PN 793
52 Transcript dated 4 July 2013 PN 800
53 Transcript dated 5 July 2013 PN 1836
54 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 15
55 Transcript dated 5 July 2013 PN 1841 - 1849
56 Exhibit 15 Email from Mark Perkins to Meg Giles dated 24 May 2013
57 Transcript dated 5 July 2013 PN 1968
58 Transcript dated 5 July 2013 PN 1896 - 1904
59 Exhibit 15 Email from Mark Perkins to Meg Giles dated 24 May 2013
60 Transcript dated 29 July 2013 PN 2993 - 2998
61 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 3
62 Exhibit 3 Table of names set out by AWX Pty Ltd Paragraph 10
63 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 attachment LGN 1
64 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 4
65 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 7
66 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 11 attachment LGN 2
67 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 12 attachment 3
68 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 13
69 Transcript dated 4 July 2013 PN 550
70 Transcript dated 4 July 2013 PN 544 - 545
71 Transcript dated 4 July 2013 PN 553
72 Transcript dated 4 July 2013 PN 921
73 Transcript dated 4 July 2013 PN 923
74 Transcript dated 4 July 2013 PN 926
75 Transcript dated 4 July 2013 PN 1635
76 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 13
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77 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 16
78 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 20
79 Transcript dated 4 July 2013 PN 626
80 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 39
81 Exhibit 6 Statement of Lee Norris dated 26 July 2013 attachment LGN 5
82 Transcript dated 4 July 2013 PN 448
83 Transcript dated 4 July 2013 PN 452
84 Transcript dated 4 July 2013 PN 677
85 Transcript dated 4 July 2013 PN 586
86 Transcript dated 5 July 2013 PN 1642 - 1646
87 Transcript dated 5 July 2013 PN 1648
88 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 22
89 Transcript dated 4 July 2013 PN 455
90 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 38 Attachment D
91 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 39
92 Transcript dated 4 July 2013 PN 648 - 649
93 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 54 - 55
94 Transcript dated 4 July 2013 PN 474
95 Transcript dated 4 July 2013 PN 469
96 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 56
97 Transcript dated 4 July 2013 PN 472
98 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 23
99 Transcript dated 4 July 2013 PN 456
100 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 24
101 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 26
102 Transcript dated 4 July 2013 PN 602 - 603
103 Transcript dated 4 July 2013 PN 607 - 609
104 Transcript dated 4 July 2013 PN 736
105 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 29
106 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 30
107 Transcript dated 4 July 2013 PN 459
108 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 37 - 38
109 Transcript dated 4 July 2013 PN 591
110 Transcript dated 4 July 2013 PN 664
111 Transcript dated 4 July 2013 PN 615
112 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 24 attachment B
113 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 26
114 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 19 - 21
115 Transcript dated 4 July 2013 PN 415
116 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 23
117 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 63 - 71
118 Transcript dated 4 July 2013 PN 555
119 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 74 - 76
120 Transcript dated 4 July 2013 PN 502 - 505
121 Transcript dated 4 July 2013 PN 497 - 499
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122 Transcript dated 4 July 2013 PN 490
123 Transcript dated 4 July 2013 PN 494
124 Transcript dated 4 July 2013 PN 638 - 640
125 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 79 - 81
126 Transcript dated 4 July 2013 PN 509 -511
127 Transcript dated 4 July 2013 PN 683
128 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 83 - 84
129 Transcript dated 4 July 2013 PN 687
130 Transcript dated 4 July 2013 PM 512
131 Transcript dated 4 July 2013 PN 699
132 Transcript dated 4 July 2013 PN 701
133 Transcript dated 4 July 2013 PN 702 - 706
134 Transcript dated 4 July 2013 PN 708
135 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 27
136 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 88
137 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 90
138 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 91
139 Transcript dated 5 July 2013 PN 1979 - 1981
140 Transcript dated 5 July 2013 PN 2392 - 2393
141 Transcript dated 5 July 2013 PN 2397
142 Transcript dated 5 July 2013 PN 2411 - 2415
143 Transcript dated 5 July 2013 PN 2279
144 Transcript dated 5 July 2013 PN 2287
145 Transcript dated 5 July 2013 PN 2009 - 2010
146 Transcript dated 5 July 2013 PN 2189
147 Transcript dated 5 July 2013 PN 2201
148 Transcript dated 5 July 2013 PN 2116
149 Transcript dated 5 July 2013 PN 2193
150 Transcript dated 5 July 2013 PN 2426
151 Transcript dated 5 July 2013 PN 2154 - 2163
152 Transcript dated 5 July 2013 PN 2178 - 2187
153 Transcript dated 5 July 2013 PN 2446 - 2453
154 [1998] [PR904284]
155 [2005] AIRC 72].
156 Respondents submissions paragraph 18
157 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 42
158 Respondents outline of submissions Paragraph 22
159 [2010] FWAA 2622, PR995663
160 [2010] FWAA 5060, PR999080
161 Exhibit 6 Statement of Lee Norris dated 26 July 2013 attachment LGN 1
