1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Teys Australia Beenleigh Pty Ltd
(AG2013/8000)
TEYS AUSTRALIA BEENLEIGH PTY LTD PRODUCTION DEPARTMENTS
ENTERPRISE AGREEMENT 2013
DEPUTY PRESIDENT ASBURY BRISBANE, 10 APRIL 2014
Application for approval of the Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013.
BACKGROUND
[1] This Decision concerns an application by Teys Australia Beenleigh Pty Ltd (Teys)
under s.185 of the Fair Work Act 2009 (the Act), for approval of the Teys Australia Beenleigh
Pty Ltd Production Departments Enterprise Agreement 2013 (the Agreement).1 The
application was made on 8 August 2013. The application was opposed by the Australasian
Meat Industry Employees Union (AMIEU). Following a hearing on 27 September 2013, I
approved the Agreement and issued an approval Decision.2 On 4 October 2013, I issued a
Decision setting out my reasons for approving the Agreement.3
[2] The AMIEU appealed against the Decision to approve the Agreement. On 4 March
2014, a Full Bench of the Fair Work Commission found that in deciding to approve the
Agreement I applied an erroneous test with respect to the meaning of the expression “will be
covered” in s.181(1) of the Act and in having regard to anteriorly derived notions of fairness
in construing the coverage clause of the Agreement.4 On 25 March 2014, an Order was
issued quashing the Decision and approval Decision and the Full Bench remitted
AG2013/8000 to me to deal with in accordance with its Decision.
[3] In their submissions in the present proceedings, the parties also referred to their
submissions in the hearing on 27 September 2013. I have taken all of those submissions into
account in considering the matters remitted to me by the Full Bench. I have also had regard to
the submissions of the parties in the appeal.
[4] The factual background can be briefly stated. In July 2013, following protracted
negotiations for an enterprise agreement, Teys put a proposed agreement to a ballot of
employees notwithstanding the opposition of the AMIEU and some members who were
bargaining representatives in the negotiations. The AMIEU ran a “no” case.
[2014] FWC 2449 [Note: An appeal pursuant to s.604 (C2014/4178) was
lodged against this decision - refer to Full Bench decisions dated 18
September 2014 [[2014] FWCFB 5643] and 19 December 2014 [[2014]
FWCFB 8589] respectively for result of appeals.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB5643.htm
[2014] FWC 2449
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[5] A ballot was conducted by the Australian Electoral Commission on 1 and 2 August
2013 and a declaration of results issued on 5 August stated that:
The total amount of eligible voters was 792
There were 711 ballot papers issued including two spoilt/duplicate papers
359 employees voted “yes”
343 employees voted “no”
7 employees cast an informal vote
[6] The AMIEU asserted that there were irregularities associated with the approval of the
Agreement as follows:
Ineligible employees were included in the roll of voters;
Employees were not provided with the access period required under s.180(4) of the
Act because they were engaged after the commencement of the access period; and
New employees did not have the terms of the Agreement explained to them in
accordance with the requirements of s.180(5) of the Act.
[7] In essence the AMIEU contends that 21 employees, including “Trainee Supervisors”
were not covered by the Agreement and had no entitlement to vote on the approval of the
Agreement. It is not in dispute that Teys employs persons referred to as “Trainee
Supervisors”, and that those persons were included in the roll of eligible voters in relation to
the approval of the Agreement and that all such persons may have voted.
[8] The AMIEU contends that Teys allowed some 21 persons employed in administrative,
clerical, laboratory, managerial and supervisory roles to vote in the ballot, in circumstances
where the proposed agreement does not and will not cover such employees. Further, the
AMIEU contends that the participation of such persons in the ballot could have changed the
outcome and has been brought sharply into focus by the narrow margin by which the
Agreement was approved.
[9] Given that the margin by which the Agreement was approved is less than the number
of disputed eligible voters, if Trainee Supervisors and other disputed employees were not
eligible to vote, the outcome of the ballot may have been different and the Commission could
not be satisfied that the Agreement was genuinely agreed to by employees covered by the
Agreement.
THE ISSUES FOR DETERMINATION
[10] The issues for determination as identified by the Full Bench are:
The proper construction of clause 1.3 of the Agreement;
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The employees who will be covered by the Agreement for the purpose of the
Commission being satisfied that the employees in the group were given the
opportunity to vote to make the Agreement in accordance with s.182 of the Act; and
The application of the facts so determined to the proper interpretation of clause 1.3 of
the Agreement.
THE APPROACH TO CONSTRUCITION OF ENTERPRISE AGREEMENTS
[11] The approach to construction of enterprise agreements is well established and was set
out recently in the Decision of a Full Bench of the Commission in Shop Distributive and
Allied Employees Association Queensland Branch Union of Employees v Woolworths
Limited5 as follows (citations omitted):
“It is undoubtedly the case that, in resolving a dispute as to the interpretation of a
provision of an enterprise agreement approved under the Fair Work Act 2009, it is
permissible to take into account the industrial context and purpose of the agreement.
However, there are two important limitations upon this approach relevant to the
determination of this appeal. The first is that the process of interpretative analysis
must focus, first and foremost, upon the language of the agreement itself. For example,
in Amcor Limited v CFMEU, the process was described by Gleeson CJ and McHugh J
in the following terms: “The resolution of the issue turns upon the language of the
particular agreement, understood in the light of its industrial context and purpose
...”.6 Or, as Kirby J put it in the same case, “Interpretation is always a text-based
activity”.7 Admissible extrinsic material may be used to aid the interpretation of a
provision in an enterprise agreement with a disputed meaning, but it cannot be used to
disregard or re-write the provision in order to give effect to an externally derived
conception of what the parties’ intention or purpose was. The oft-quoted statement of
Madgwick J in Kucks v CSR Limited makes this clear8:
“But the task remains one of interpreting a document produced by another
or others. A court is not free to give effect to some anteriorly derived
notion of what would be fair or just, regardless of what has been written
into the award. Deciding what an existing award means is a process
quite different from deciding, as an arbitral body does, what might fairly
be put into an award. So, for example, ordinary or well-understood
words are in general to be accorded their ordinary or usual meaning.”
The second limitation is that regard cannot be had to the respective subjective
intentions and expectations of the parties as demonstrated by their “statements and
actions” in negotiating the agreement.9 Rather, the task is to identify the common
intention of the parties as they have expressed it in the terms of their agreement. In the
context of commercial contracts, this task was described by the High Court in Toll
(FGCT) Pty Ltd v Alphapharm Pty Ltd10 in the following way:
“It is not the subjective beliefs or understandings of the parties about their
rights and liabilities that govern their contractual relations. What
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matters is what each party by words and conduct would have led a
reasonable person in the position of the other party to believe.
References to the common intention of the parties to a contract are to be
understood as referring to what a reasonable person would understand
by the language in which the parties have expressed their agreement. The
meaning of the terms of a contractual document is to be determined by
what a reasonable person would have understood them to mean. That,
normally, requires consideration not only of the text, but also of the
surrounding circumstances known to the parties, and the purpose and
object of the transaction.”
The above passage was treated as part of a “practical approach” according with the
established approach to the construction of industrial agreements in Construction,
Forestry, Mining and Energy Union v HWE Mining Pty Limited.11”
[12] In the present proceedings, the AMIEU submits that before the Commission can have
regard to the surrounding circumstances of the agreement, ambiguity must be identified, and
that because the parties agree that there is no ambiguity, extrinsic evidence including evidence
about the context of the agreement is not receivable as an aid to construction.
[13] I do not accept that submission. In the present case there is a dispute over the meaning
of an enterprise agreement. Each of the parties has a different view about the meaning of the
disputed provision. Although each party contends that the disputed provision is not
ambiguous it is necessary to construe the agreement and resolve the disputed meaning of the
clause in question, and for that purpose, the principles enunciated in the Woolworths Case can
be applied including those relevant to the use of extrinsic material as an aid to construction.
THE DISPUTED CLAUSE
[14] Clause 1.3 of the Agreement deals with coverage and scope and is in the following
terms:
“This Agreement shall apply to all Employees employed by Teys Australia Beenleigh
Pty Ltd who are engaged in stock receival and preparation, production and cleaning
operations at the Beenleigh plant whose work is covered by the classifications
contained in this Agreement.
This Agreement does not seek to, nor does it cover, Employees engaged in repair and
maintenance, administrative and clerical, laboratory, first aid, managerial or
supervisory work.”
[15] At the hearing on 27 September 2013, Teys tendered a bundle of clauses from other
agreements covering various operations of Teys. This material establishes that there are
identical clauses in the following agreements:
Teys Bros (Beenleigh) Pty Ltd / AMIEU Production Departments Enterprise Agreement 2010
[2009] FWAA 1894 - see clause 1.3
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Teys Bros (Biloela) Pty Ltd Production Departments Enterprise Agreement 2010 [2010]
FWAA 8925 - see clause 1.3
Teys Bros (Rockhampton) Pty Ltd Production Departments Enterprise Agreement 2011 [2011]
FWAA 4879 - see clause 1.3
Teys Australia Food Solutions Pty Ltd (TAFS) Production Departments Enterprise Agreement
2012 [2012] FWAA 1996 - see clause 1.3
Teys Australia Naracoorte Pty Ltd Production Departments Enterprise Agreement 2012
[2012] FWAA 8543 - see clause 1.3
Teys Australia Southern Pty Ltd Tamworth Production Departments Enterprise Agreement
2012 [2013] FWCA 789 - see clause 1.3
Teys Australia Southern Pty Ltd Wagga Wagga Production Departments Enterprise
Agreement 2012 [2013] FWCA 1410 - see clause 1.3
[16] In the hearing on 9 April 2014, the AMIEU tendered earlier iterations of clause 1.3 of
the Agreement in issue in these proceedings. This material indicates that the Teys Bros
(Beenleigh) Pty Ltd/AMIEU Production Departments Enterprise Agreement 2010 contained
an identical provision. The Teys Bros (Beenleigh) Pty Ltd Boning Room and Associated
Departments Certified Agreement 2006 provided at clause 1.4 as follows:
1.4 Coverage & Scope
1.4.1 Subject to sub-clause 1.4.2, this Agreement shall apply to all employees
employed by Teys Bros (Beenleigh) Pty Ltd engaged in production operations
in the Boning Room, Load out and By Products at its Beenleigh plant and
whose work is covered by the task classifications contained in this agreement.
It applies to all production employees in those areas, both existing and new,
and applies to them whether they are members of the Union or not.
1.4.2 The Agreement does not seek to, nor does it cover, employees engaged in
production work in the stockyards, slaughtering department and offal rooms
and/or repair and maintenance, administrative and clerical or managerial
quality assurance or supervisory work.
[17] The Teys Bros (Beenleigh Pty Ltd) Slaughter Floor and Associated Departments
Certified Agreement 2001 provided at clause 1.4 as follows:
1.4 Coverage & Scope
1.4.1 Subject to sub-clause 1.4.2, this Agreement shall apply to all employees
employed by Teys Bros (Beenleigh) Pty Ltd engaged in production operations
in the stockyards, slaughter floor, tripe room, and offal room at the Beenleigh
plant and whose work is covered by the task classifications contained in this
agreement. It applies to all production employees in those areas, both existing
and new, and applies to them whether they are members of the Union or not.
1.4.2 The Agreement does not seek to, nor does it cover, employees engaged in
production work in the boning, load out and/or by-products repair and
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maintenance, administrative and clerical and/or managerial or supervisory
work.
[18] The Teys Bros Enterprise Agreement which appears to have been made in 1994
provides as follows at clause 3:
3. Application
(i) This Agreement shall apply to Teys Bros. (Beenleigh) Pty Ltd and Teys
Bros. (Biloela) Pty Ltd (herein referred to as the Company) and all its
employees covered by the Queensland Meatworks Industrial
Agreement-Award 1983.
THE EVIDENCE
[19] In the decision I issued on 4 October 2013, I set out evidence given at the hearing on
27 September 2013 that I considered relevant to the matters in dispute. In their submissions
at the hearing on 9 April 2014, the parties drew my attention to aspects of that evidence. In
light of the further submissions made at that hearing I have revisited the evidence to consider
whether there is evidence that was not addressed in the first decision in relation to the issues
for determination.
[20] The following persons gave evidence and provided statements at the hearing on 27
September 2013. Evidence in support of the application to approve the Agreement was given
by:
Mr J. Salter, General Manager Workplace and External Relations12
Mr D. Archie, Human Resources Manager13
Ms C. Watt-Dunling, Packing Leading Hand14
Mr P. Carle, Trainee quality assurance/quality control supervisor15
Mr M. Garth, Boner16
Mr S. Gee, General Manager Operations17
[21] Evidence in opposition to the approval was given by:
Mr B. Crawford, Branch Secretary of the AMIEU18
Mr K. Prange, Meat worker19
Mr R. Leigh, Meat worker20
Mr D. Ludwigson, Boner21
Mr R. Stagg, Slaughterer and Authorised Officer for post-mortem inspection22
[22] It is not in dispute that Teys employs persons referred to as Trainee Supervisors, and
that those persons were included on the roll of eligible voters and were treated as eligible to
receive ballot papers to vote for the approval of the Agreement. It is also not in dispute that
some of the Trainee Supervisors voted in the ballot for approval of the Agreement and that all
Trainee Supervisors may have voted. Accordingly, it is the case that if Trainee Supervisors
[2014] FWC 2449
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were not eligible to vote in the ballot for the approval of the Agreement, then the outcome of
the ballot may have been different.
[23] The evidence establishes that Teys has a formal program conducted over a period of
around 18 months, involving on the job training being provided to production employees who
are identified as having the potential to be engaged as supervisors. Those employees are
designated as Trainee Supervisors, and undertake on the job training under the supervision of
Staff Supervisors.
[24] A relatively lengthy training period is required so that the Trainee Supervisors can
adjust to the requirements of carrying out supervisory tasks and the workforce adapts to
seeing former production workers in a supervisory role. Teys has a policy of establishing
internal career paths, and promoting production workers to supervisory positions through such
programs. There are similar programs in place for production workers to enable them to
increase their skills and obtain classification at higher levels under the Agreement.
[25] At the time the ballot for approval of the Agreement was conducted, there were 17
employees performing the role of Trainee Supervisor. Other employees whose entitlement to
participate in the ballot is disputed are a Trainee Quality Assurance Supervisor; a Trainee
Workplace Health and Safety Officer; a production sample collector; a Vietnamese translator
and an employee acting in a HR role.
[26] The evidence establishes that Staff Supervisors are employed under a common law
contract of employment, by a different entity to that which employs production employees -
Teys Management Pty Ltd rather than Teys Australia Beenleigh Pty Ltd which employs
production employees. The Staff Supervisors are also paid under a different fortnightly
payroll system. Following their training period, if Trainee Supervisors are considered to be
suitable for a staff appointment, they are offered a new contract of employment with that
entity. Witnesses for Teys also maintain that:
Trainee Supervisors regularly undertake a full range of production work and cut out
employees performing production tasks when they need to take breaks or fill in
during periods when production employees are absent from the workplace.
Teys has the right to direct Trainee Supervisors to undertake production tasks at any
time and to remove them from the training program.
Trainee Supervisors are informed at the commencement of their training that they will
remain in their substantive classifications under the Agreement are paid as a
minimum rates under the Agreement pertaining to those classifications and maintain
all of the rights associated with continuity of service under the Agreement, including
preference with respect to rosters and rights in relation to being stood down when this
is necessary.
Supervisory tasks undertaken by Trainee Supervisors are performed under the
direction of Staff Supervisors and Trainee Supervisors do not have traditional
supervisor accountability to give formal directions or initiate disciplinary processes.
Trainee Supervisors have been included in all of the ballots for previous agreements
and have been covered by their terms, with the knowledge and acceptance of the
AMIEU.
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Trainee Supervisors participated in an earlier ballot for the Agreement in February
2013 and in a ballot authorising the AMIEU to make an application to the
Commission for a protected action ballot order.
Some trainee supervisors participated in the protected industrial action taken
following the ballot.
[27] Some of the Trainee Supervisors are paid in excess of the minimum rates they are
entitled to under the Agreement. Where employees who go into the Trainee Supervisors
program are classified at the higher levels in the classification structure, they maintain their
classification rate. Where they are paid at lower levels, they receive a higher rate than that to
which they are entitled. The evidence is that these employees are paid at higher rates to
provide an incentive for them to participate in the Trainee Supervisors program.
[28] Ms Watt-Dunling said under cross-examination that prior to being offered the Trainee
Supervisor role, she was paid at BC3 and subsequently as a BC2. Ms Watt-Dunling also said
that she received this increase to bring her to the same level as other Trainee Supervisors. Ms
Watt-Dunling has not signed another contract of employment since becoming a Trainee
Supervisor but agreed that she was in progression to become a skilled supervisor. Mr Gee
was cross-examined about some Trainee Supervisors being paid at higher levels under the
Agreement than were applicable to the work they were performing prior to undertaking the
role of Trainee Supervisor. Mr Gee’s evidence establishes that Trainee Supervisors are
frequently paid at higher levels under the Agreement than they were paid before commencing
this role.
[29] Ms Watt-Dunling and Mr Carle gave evidence to the effect that they consider
themselves covered by the Agreement and its predecessors and would be concerned to find
that this is not the case. Further, those employees indicated their understanding that they are
required to assist with production tasks as directed, and that they could be directed to perform
production tasks on a full time basis. Ms Watt-Dunling said that from time to time she does
labouring jobs and skilled tasks relevant to her position as packing leading hand. Ms Watt-
Dunling also said that her supervisory tasks are performed under supervision of her manager.
Mr Carle gave evidence to the effect that he “cut out” or took the place of production
employees when they were required to perform other tasks and may do this for a whole shift
or part of a shift. Mr Carle agreed that his manager could require him to cut out a production
employee at any time. Mr Carle also said that he performs supervisory tasks under
supervision from his manager.
[30] Mr Garth said that he is a Trainee Quality Control Supervisor and considers that he is
covered by the Agreement. Mr Garth also said that he was hopeful that this role was the last
step for him to become a staff supervisor. Mr Garth carries out production tasks when
required, to keep the production line moving and those tasks are a regular part of his role. In
this regard Mr Garth said that on most days he assists with packing meat and two or three
days a week carries boxes of meat. Mr Garth also undertakes night work and maintains his
boning and slicing competencies. Mr Garth said that he would be upset if he lost his
entitlements under the Agreement because he perceived that he is first and foremost a boner at
the plant. Mr Garth also said that it was his understanding that if he did not make the cut or
was unhappy with the role of Trainee Supervisor he would go back to boning. As he is
[2014] FWC 2449
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classed under the Agreement, he believes that he has a right to vote in the ballot for its
approval.
[31] Under cross examination, Mr Garth agreed that his role was primarily supervisory
rather than production and that he monitors and oversees the work of production workers, and
provides assistance to them to undertake tasks correctly. Mr Gee agreed that Ms Connell, the
Trainee Workplace Health and Safety Officer, was engaged on production tasks 30 % of the
time, but that other Trainee Supervisors about whom he gave evidence were engaged for less
than that with some doing this work for as little as 20 to 45 minutes per shift.
[32] There is evidence that some employees are engaged in the role of “Tutor” and are
involved in providing on the job training to production workers. These persons are
considered to be covered by the Agreement and its predecessors, notwithstanding that it does
not contain an allowance or classification for Tutors. Mr Ludwigson who gave evidence on
behalf of the AMIEU is a Tutor, and said that he is covered by the Agreement. The role of a
Tutor includes teaching production workers how to undertake tasks, checking that they are
performing those tasks properly and directing production workers in relation to these matters.
Mr Ludwigson also said in cross-examination that a Trainee Supervisor who had previously
been a Tutor in slicing, was covered by the Agreement while he was working in both
capacities.
[33] There is no leading hand allowance found in the Agreement or its predecessors and
notwithstanding this some employees are paid as leading hands. Mr Wilcox is paid at a
boner’s rate although his duties are primarily those of a slicer.
[34] There was evidence from witnesses for the AMIEU to the effect that Trainee
Supervisors and Supervisors are viewed by employees as performing the same role and are
required to be treated as such. According to the witnesses for the AMIEU Trainee
Supervisors are responsible for areas such as boning, slicing, packing and quality assurance.
Trainee Supervisors wear blue “bump caps” and carry two way radios, as do Staff
Supervisors. They also carry Supervisors’ books for the purpose of recording unsatisfactory
work on the part of employees.
[35] All Supervisors including Trainee Supervisors have authority to direct production
employees in relation to how to perform their work and to give warnings in relation to
unsatisfactory work and other disciplinary matters. Mr Stagg gave evidence of being told by
a Staff Supervisor that a Trainee Supervisor who was attempting to discipline a production
worker is “one of us” because the Trainee Supervisor was wearing a blue bump hat. Under
cross-examination Mr Stagg agreed that the employee who was being disciplined “pushed
back” in relation to the right of the Trainee Supervisor to raise performance issues, and a Staff
Supervisor then became involved in the disciplinary process.
[36] Mr Stagg said under cross-examination that it is his understanding that when
employees are appointed to a staff role they move away from the Agreement. Mr Stagg was
interviewed in relation to a Trainee Supervisor’s role and said that if he had been offered that
role he would have accepted. Mr Stagg also said that if he accepted the role of Trainee
Supervisor, he believed that he would have been covered by the Agreement until such time as
he was “on staff”.
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[37] AMIEU witnesses also gave evidence in relation to the following employees voting in
the ballot for approval of the Agreement:
An employee acting as a translator assisting Vietnamese speaking employees to obtain
visas, who has a desk and office space in the Administration building;
An employee acting in a temporary HR role;
A Laboratory Technician who has been performing the role for 12 months;
Ms Suzanne Connell, a Workplace Health and Safety Officer;
Persons who are said to have positions in the laboratory; and
New starters who stated that they had received a copy of the Agreement two days
before they voted.
[38] Witnesses for Teys gave evidence about these employees. Ms Thao Nguyen is acting
as a translator assisting employees whose first language is Vietnamese to obtain visas. Ms
Fetalaiga Aunese is on temporary assignment to the HR department acting in the role of
recruitment officer. Ms Nguyen has expressed an interest in an administrative role if one
becomes available but would return to the boning room at the completion of the temporary
role. Ms Aunese went back to the offal room in May and then resumed in the temporary role.
Mr Archie maintained that both employees have retained their substantive classification under
the Agreement and have returned or will shortly return to that role. Ms Nguyen is classified
as a BC3 under the current Agreement and Ms Aunese is classified as a BK4.
[39] Mr Gee said that Ms Connell is classified as a Cleaner/Leading Hand and is training to
work as a Workplace Health and Safety Officer, but retains her current classification while
being trained. At any point, Ms Connell can be directed to work in her substantive
classification, in contrast with the position with respect to Salaried Workplace Health and
Safety Officers. This is said to be the same situation as that applicable to Trainee
Supervisors. Mr Gee also gave evidence about an employee, Ms Mannell, who takes swabs
and samples of products for testing in the Laboratory but does not conduct that testing and
said that Teys Australia Beenleigh Pty Ltd does not employ Laboratory Technicians.
[40] Mr Archie said that when employees are given the opportunity to undertake the
Trainee Supervisor role, they do not sign a new contract of employment. Mr Archie said that
both Supervisors and Trainee Supervisors assist production workers on shifts, Trainee
Supervisors are required to do this and Supervisors are not.
[41] In relation to new starters voting in the ballot, Mr Archie gave evidence that three
employees commenced employment on 26 July 2013 and were provided with a copy of the
Agreement and the information that had been provided to other employees. None of these
employees was from a non-English speaking background. The new employees were included
in the list provided to the Australian Electoral Commission.
[42] Mr Crawford’s evidence was that since his involvement with enterprise bargaining at
Teys Australia plants in 1997, there has never been a proposed agreement submitted to a
ballot of employees without the endorsement of the plant negotiating committee and the
Union. Because of this, agreements have been approved with healthy majorities, and there
has never been a dispute about the entitlement of any employee to vote.
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[43] Mr Crawford said that he is not aware of any instance where “supervisory staff” voted
on the approval of any enterprise agreement. Mr Crawford also asserted that there is a
sizeable discrepancy in the information provided to the Commission by Mr Salter, about the
number of employees covered by the Agreement compared to the information provided about
its predecessor. Mr Crawford did not give oral evidence about this matter and it was not put
to Mr Salter in cross-examination.
[44] In relation to the ballot, a number of witnesses for the AMIEU agreed in cross-
examination that they were acting in the capacity of scrutineers in the ballot process, and at no
point during that process raised any objection to persons voting who the AMIEU now assert
are not eligible to vote. Those witnesses also agreed that if they had seen the owner of Teys,
Mr Brad Teys attempt to cast a vote they would have raised an objection immediately.
[45] The witnesses for the AMIEU were also cross-examined about how they compiled the
list of those employees the Union now asserts were not eligible to vote. Their evidence was
that they held a meeting of AMIEU bargaining representatives after the ballot and developed
a list of those said to be ineligible to vote for approval of the Agreement.
[46] In submissions made on 9 April 2014, the AMIEU highlighted the following aspects
of the evidence given by witnesses for Teys in the hearing on 27 September 2013:
Mr Salter accepted under cross examination that (1) trainee supervisors are
engaged in a supervisory role; (2) trainee supervisors, interpreter, trainee
WH&S officer and HR recruitment officer are not found under any
classification of the EBA; and (3) there needs to be a connection between the
task performed and the classification under the appropriate industrial
instrument:23
Mr Archie accepted under cross examination that (1) both trainee supervisors
and supervisors are in supervisory positions; (2) that interpreter and
recruitment officer positions were not engaged in any production work at the
time of the August ballot; (3) trainee supervisors monitor the performance of
production workers, have an overseeing role of production workers, assist
production workers with their tasks (consistent with the indicia of a
supervisor); and (4) trainee supervisors learn the job by engaging in
supervisory practice: 24 and
Mr Gee accepted under cross examination that (1) trainee foremen/supervisors,
interpreter, trainee WH&S officer and HR recruitment officer are not classified
under the EBA; (2) trainee supervisors are engaged in supervisory work,
learning new tasks, new responsibilities, undertaking certificate vi training and
have been in these position up to 3 years; (3) Danielle Mannell’s job as
laboratory technician is not classified under the EBA and may have been an
oversight by legal eagle people; (4) trainee supervisors are paid at a higher rate
in the classification structure of production workers as a reward for effort and
time put into training in supervisory work; (5) trainee foremen give directions
to production employees, trainee supervisors monitor performance of workers
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and oversee workers performance, assist production workers with tasks, and
are primarily engaged in a supervisory role depending on the stage of the
traineeship; and (6) the highest point of a trainee supervisor engaging in
production work was put at 30% of the time, most trainee supervisors do a lot
less than that, between 20 – 45 minutes per shift (a shift being 9 ½ hours).25
[47] In addition to the matters highlighted by the AMIEU, it is also the case Mr Salter
agreed with the proposition that the performance of a Trainee Supervisor role constitutes a
change to the employee’s responsibilities, but qualified his response by stating that the change
was partial. Mr Salter also said that Trainee Supervisors are training towards progression into
salaried positions, but still undertake their usual production tasks. In response to the
proposition that the dominant role for Trainee Supervisors is primarily supervisory, Mr Salter
said that for some it may be but for some it would be a minority, depending on the
circumstances. Mr Salter also said it was not necessarily the case that production work is a
minor part of the work performed by Trainee Supervisors.
[48] In relation to the submission that Mr Salter agreed that there needs to be a connection
between tasks performed and the classification under the appropriate industrial instrument, the
evidence of Mr Salter given under cross-examination was as follows:
“Mr Dalgleish: No. You would agree that there has to be some nexus or connection
between what a person is classified as and the actual work they perform?---Could you
repeat that, please?
You would agree that there's got to be some connection between what you're classified
as an employee and the actual work you perform?---Under the EBA?
Just generally, as a general proposition?---Well, if the question is in respect of
classifying work under the EBA, production work - - -
Yes?--- - - - yes, there obviously has to be a connection between the task performed
and the classification under the appropriate industrial instrument.
I'll put it to you again. It's an absolute absurdity to say that a supervisor does not
supervise?---I disagree.”
[49] Mr Salter also said that the job title of employees changes to Trainee Supervisor
because there are new duties consistent with supervisory practice and there is a change in
status and performance progression.
[50] The AMIEU also drew attention to the evidence of Mr Crawford and invited further
consideration of the assertions in his statement. It was submitted that these assertions must be
accepted because Mr Crawford was not cross-examined. That evidence can be summarised as
follows:
Throughout the 16 years that Mr Crawford has been involved in enterprise bargaining
at Teys, he is not aware of any instance where supervisory staff have voted on the
approval of any proposed agreement.
[2014] FWC 2449
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Mr Crawford has checked all relevant paper based and electronic files and can find
no evidence of discussions about Trainee Supervisors being covered by the
Agreement;
Teys has not discussed the terms and conditions of Trainee Supervisors with Mr
Crawford; and
In emergent circumstances due to absenteeism or for some other unavoidable reason
Trainee Supervisors may perform production work covered by the enterprise
agreement.
[51] Mr Crawford also asserted that there was a sizeable discrepancy between the
information about numbers of employees covered by the Agreement provided by the
Company in connection with the 2010 Agreement and the Agreement subject of the present
proceedings with 63 additional employees voting in the ballot for the present Agreement than
voted for the 2010 Agreement. Mr Crawford states that there have been no material changes
at the plant to shift patterns, rosters, production/output levels or new areas of work that would
explain the increase in numbers of employees covered by the Agreement subject of the
present proceedings. This leads him to believe that persons who should not have voted in the
ballot did so and that the ballot has been compromised.
[52] The statutory declaration completed by Mr Salter in relation to the approval of the
2009 Agreement appended to Mr Crawford’s statement indicates that the total number of
employees to be covered by the proposed Agreement is 729. As previously noted, Mr Salter
was not cross-examined about this point notwithstanding that he gave oral evidence and was
cross-examined in relation to other aspects of that evidence.
[53] It is submitted by the AMIEU that the reference to supervisory staff in Mr Crawford’s
affidavit is a reference to supervisory work whether by Trainee Supervisors or supervisory
staff.
[54] The submissions for Teys in the hearing of 9 April 2014 identified what was said to be
positive evidence of prior negotiations based on a common assumption that Trainee
Supervisors were covered by a series of agreements in effect at a number of Teys enterprises,
which have the same coverage clause. It was also asserted that the evidence establishes a
common assumption that Trainee Supervisors at Teys Beenleigh enterprise are covered by the
Agreements until they are actually appointed as supervisors. See:
(a) Affidavit of John Salter at [8] and Appendix 1 to the effect that Trainee
Supervisors have always been regarded as eligible to vote and therefore covered
by the EA both at Beenleigh and at other Teys sites, and also that AMIEU
scrutineers have been involved in those ballot processes without objection.
(b) Affidavit of Desmond Archie at [25] that trainee supervisors have been
included in every EBA ballot that he has been involved in, and at no stage has
the AMIEU raised any objection despite being specifically aware.
(c) Affidavit of Christina Watt-Dunling at [2] to the effect that, although a Trainee
Supervisor, she regards herself as classified under the EBA and at [9] and [10]
[2014] FWC 2449
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where she gives evidence that she voted in the enterprise agreement ballot and
considers herself bound by it.
(d) Affidavit of Patrick Carle at [8] – [11], to similar effect.
(e) Affidavit of Malcolm Garth at [3] to the effect that he is classified as C1 under
the current EA, and at [9] – [10] to the effect that he voted not only in the ballot
for the EA but in a previous ballot when he was also a Trainee Supervisor.
[55] The AMIEU also submitted that further consideration should be given to the evidence
given by its witnesses who were observers in the ballot for approval of the Agreement. Mr
Leigh said that he was surprised at the number of employees on the roll for the 2 August
ballot compared to a ballot conducted in February. Mr Lee said that he was told on 5 August
2013 that “blue hats from the kill floor and boning room and a workplace health and safety
officer had voted in the EBA ballot”. Mr Lee also said that Mr Ludwigson and Mr Stagg had
gathered a list of about 17 or so quality assurance assessors who should not have voted as
they were not production workers and not on the chain. Mr Lee was not required for cross-
examination.
[56] Mr Ludwigson said that he observed a company employee who has acted as a
Vietnamese translator on a full time basis for two months prior to the ballot, take a ballot
paper and vote. Mr Ludwigson also identified that a QA Supervisor in boning room, Ms
Eaton voted after being allowed by AEC officials to return and put her ballot in the box. Mr
Ludwigson said that Ms Eaton has been a QA Supervisor for 12 months and he had not seen
her performing any duties covered by the current or proposed enterprise agreements during
that time. Under cross-examination Mr Ludwigson agreed that this did not mean that Ms
Eaton had not performed such duties.
[57] Mr Ludwigson also identified persons he described as a Laboratory Technician Ms
Mannell; a Workplace Health and Safety Officer Ms Connell; and a Supervisor of the
Cleaners; obtain ballot papers and cast a vote. Under cross-examination Mr Ludwigson was
asked whether he knew any persons who had been asked to be a Trainee Supervisor. Mr
Ludwigson named a Mr Neil Minute who was a slicing tutor and was then asked to be a
Trainee Supervisor. Mr Ludwigson agreed to the proposition that in both roles, Mr Minute
was covered by the Agreement. Mr Ludwigson also agreed that an employee called Scott
Lodding became a Supervisor and was a staff employee at that point and not covered by the
Agreement.
[58] Mr Stagg said that in previous ballots for the approval of agreements the agreements
were recommended by the negotiating committee, the AMIEU and the Company jointly.
None of the voting results were close and there had never been problems raised with whether
certain employees like Trainee Supervisors were eligible to vote. The same situation occurred
in February 2013 when the Company put a proposed agreement to ballot and it was defeated
by a significant majority. Because of the clear cut result there were no disputes at that time
about whether any employee should or should not have voted.
[59] Mr Stagg has been at Teys Beenleigh for 15 years and is a delegate of the AMIEU.
He is also a member of the negotiating committee. Under cross-examination Mr Stagg said
[2014] FWC 2449
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that until the August 2013 ballot, no one has ever suggested that Trainee Supervisors should
not be allowed to vote and that no concern had ever been raised about this matter before. In
response to a question about why no one had ever raised this issue before, Mr Stagg said:
“None of the votes have been this close”. In response to the proposition that he had identified
Trainee Supervisors who voted in the ballot, Mr Stagg said he made a list of “blue hats” who
voted.
[60] In relation to the distinction between Trainee Supervisors and Staff Supervisors, Mr
Stagg had the following exchange with Mr Williams for Teys:
“MR WILLIAMS: Mr Stagg, you've been there for a long time. You mentioned your
supervisor before. Could you just remind me of his name again, please?
---Which one, mate?
The real supervisor?---Phil Reagan, he's the night shift manager slaughter floor.
Night shift manager. Is he an assistant manager or - - - ?---No, he's the manager of
the slaughter floor.
Is he a trainee?---No.
No. And you're sure of that?---Positive.
And he's, therefore, a staff employee, right?---Yes.
Do you know whether he came to that position from the production floor?---Yes, I
believe he was on day shift on the - - -
And before he became appointed as a supervisor or a manage, he would have been an
enterprise agreement employee?---I imagine so, yes.
And it's at the point that he became a staff employee that he moved away from the
enterprise agreement?---I believe so, yes.
So people who have not been appointed to a staff role are employed under the
enterprise agreement?---I guess so, yes.
Have you ever been asked to join the supervisor training program?---I have had an
interview, I've never been asked. I was asked to sit for an interview.
Yes. And so you wanted to take the role on?---I would have, yes.
Yes. And Mr Stagg, if you had have accepted that role, you still would have been
employed under the enterprise agreement, wouldn't you?---I believe so, until such time
as I was on staff.”
[61] Mr Stagg also maintained that he had not seen Mr Carle perform production work for
the past six months but agreed that he had worked as a slaughterer on 2 August 2013 and had
[2014] FWC 2449
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relieved Mr Stagg on 5 August 2013 for two 15 minute periods. Mr Stagg agreed that Mr
Carle could have performed production work other than at times when Mr Stagg observed
him doing so.
LEGISLATIVE PROVISIONS
[62] The legislative provisions relevant to the issues in dispute are as follows (as set out in
the Full Bench Decision):
[9] Section 186(2) provides that the Commission must approve an enterprise
agreement if, among other things, the agreement has been ‘genuinely agreed by the
employees covered by the agreement’. Section 188 deals with when employees have
‘genuinely agreed’ to an enterprise agreement:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees
covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied
with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested
to approve an enterprise agreement until 21 days after the last notice of
employee representational rights is given); and
(b) the agreement was made in accordance with whichever of
subsection 182(1) or (2) applies (those subsections deal with the making of
different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has
not been genuinely agreed to by the employees.”
[10] The pre-approval step in s.181(1) is relevant for present purposes, it provides:
“An employer that will be covered by a proposed enterprise agreement may request
the employees employed at the time who will be covered by the agreement to approve
the agreement by voting for it.” [emphasis added]
[11] Section 53(1) provides that an enterprise agreement covers an employee if ‘the
agreement is expressed to cover (however described) the employee’. Section 256A is
also relevant, it deals with how employees are to be described:
“256A How employees, employers and employee organisations are to be
described
[2014] FWC 2449
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(1) This section applies if a provision of this Part requires or permits an instrument of
any kind to specify the employers, employees or employee organisations covered, or
who will be covered, by an enterprise agreement or other instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of
subsection (2), the class may be described by reference to one or more of the
following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.”
[12] Section 256A is in Part 2-4 - Enterprise Agreements - of the Act.”
[63] In the appeal against the approval of the Agreement, the Full Bench held that the
phrase “will be covered by the agreement” in s.181(1) does not indicate future likelihood but
rather expresses a necessary or determinative consequence.26 That section means that Teys
could only make the Agreement with employees who were named or described in the
Agreement and whom the Agreement purported to cover. 27 In short, at the time of the ballot,
only employees covered by the Agreement could vote for its approval.
CONCLUSIONS
[64] I am of the view that the proper construction of clause 1.3 of the Agreement is that it
covers Trainee Supervisors. I commence with the language of the Agreement itself. Clause
1.3 of the Agreement refers to all employees who are “engaged” in nominated roles, tasks or
areas.
[65] The term “engage” in the sense of employment is defined as to employ or hire. Other
meanings of “engage” are to bind by a promise (See for Example the Australian Concise
Oxford Dictionary). In the context of industrial instruments and employment, the term
“engaged” connotes that the employee must be specifically engaged in a particular capacity
rather than simply employed. This can be seen from clause 2.1.1 of the Agreement which
provides for categories of employment and goes on to require that employees are notified of
their employment category at the point of “initial engagement” and are required to be notified
of any change in status.
[66] In the present case, all of the disputed employees are engaged as production
employees. This is so notwithstanding that they may not be performing the work of
production employees at a particular time. The disputed employees have contracts of
[2014] FWC 2449
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employment as production workers and are entitled to be classified as such under the
Agreement, and to be paid no less than the classification level at which they are engaged.
This is apparent from clause 3.2 of the Agreement which deals extensively with the grading
and classification of employees and their rights arising from engagement at particular levels.
[67] There is no evidence that the contracts of employment of these employees as
production workers were terminated upon them acting in Trainee Supervisor or other roles. I
also do not accept that the Trainee Supervisor roles are so substantially different that the
effect was to terminate the contracts of employment of those employees and replace it with a
new contract. That is certainly not consistent with the views and understanding of the persons
in those roles.
[68] The fact that production employees who are covered by the Agreement may be
provided with a training opportunity as a Trainee Supervisor, which may or may not
crystallize into a staff appointment, does not remove them from the coverage of the
Agreement. They are and at all times while performing the role of Trainee Supervisor,
continue to be production employees in accordance with the terms of their engagement by
Teys. In this regard, I note that Trainee Supervisors:
Are offered the opportunity to undertake that role because they are high performing
production workers to whom Teys wishes to give an opportunity for advancement
consistent with the objectives of the Agreement in relation to the provision of
structured training and career paths;
Are informed at the commencement of their training that they will remain in their
substantive classifications under the Agreement and be paid the minimum rates under
the Agreement and retain all of their rights under the Agreement with respect to
continuity of service including preference with respect to rosters and rights in relation
to being stood down;
Can at any time, at the direction of a Staff Supervisor or Manager be directed to
perform production work;
Routinely perform production work as and when required to ensure continuity of
production or to relieve other production workers; and
Are subject to supervision by Staff Supervisors.
[69] The fact that there is no classification for Trainee Supervisors in the Agreement does
not result in the Agreement not covering production workers undertaking this role. Section
256A of the Act does not require that there is a specific classification in an enterprise
agreement that describes the tasks being undertaken by a particular employee. What is
required is that, without limiting the way a class of employee is described, that the class is
described, such that it is capable of identification.
[70] The Agreement in the present case describes production workers and it does so by a
combination of descriptions of the kind of work, the type of employment and the
classification, job level or grade and a requirement that employees be engaged to perform the
designated work or role. Trainee Supervisors have a substantive contract of employment
under which they are engaged as production workers, classified in accordance with the work
they are engaged to perform.
[2014] FWC 2449
19
[71] I remain of the view that employees paid and classified as production workers at
various levels of the Agreement can be temporarily assigned to perform incidental tasks such
as assisting co-workers from non-English speaking backgrounds, at the behest of Teys, by
interpreting for those co-workers, or to perform office work. The evidence is that the
employees engaged in these temporary assignments have now returned to their roles as
production workers or will do so during the term of the Agreement. That does not change the
fact that they are and continue to be covered by the Agreement while performing the
temporary assignment. Had such employees been denied the opportunity to participate in the
pre-approval processes and the ballot for the Agreement, they would have had cause to
complain that the group of employees covered was not fairly chosen or that the Agreement
was not genuinely made.
[72] The fact that there is no classification for Trainee Supervisors or Interpreters in the
Agreement does not change my view. It is trite to say that an employee cannot be removed
from the coverage of an industrial instrument by a simple change of title.
[73] A temporary redeployment does not change the employee’s substantive engagement,
particularly in circumstances where the employee can at any time, at the discretion of Teys, be
required to perform production work. This is apparent from the evidence that some
employees are performing the role of Tutors, and are considered to be covered by the
Agreement, notwithstanding that there is no classification for Tutors in the Agreement.
Further the fact that Trainee Supervisors wear hats of a particular colour, or carry two way
radios, does not change the fundamental nature of their engagement.
[74] The question of whether an instrument covers an employee requires more than a
quantitative assessment of the time spent carrying out various duties. What is determinative
is the circumstances in which the person is employed and the principle purpose of the
employment.28 In the present case, the Trainee Supervisors, interpreters and persons being
trained to undertake quality control or workplace health and safety, are principally employed
as production workers, and Teys has the right at any time to return them to such roles.
[75] The AMIEU maintains that the application of the tests for coverage of industrial
instruments as set out in Carpenter v Corona Manufacturing Pty Ltd 29and Brand v AIPR
Systems Pty Ltd 30 would lead to an outcome in the present case where the Commission could
not be satisfied that Trainee Supervisors are covered by the proposed Agreement. I do not
accept that submission.
[76] Carpenter v Corona Manufacturing Pty Ltd and Brand v AIPR Systems Pty Ltd were
cases concerning the question of whether applicants for an unfair dismissal remedy were
employed under award conditions. The legislation then provided that in order for an
employee to be “employed under award conditions” the employer was required to be bound
by the award in relation to wages and conditions. In Brand the Full Bench noted that for an
employer to be bound by an award in relation to wages and conditions, there were two
requirements: the employment was within the incidence of the award and the employee was
engaged in a classification in the award. The Full Benches in both of those cases referred to
two approaches: deciding the question by reference to the major and substantial employment
of the employee or by identification of the principal purpose of the employment and noted
[2014] FWC 2449
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that in some cases both formulations had been referred to. The Full Bench went on to state
that:
“In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do the work with a view
to ascertaining the principal purpose for which the employee is employed.” 31
[77] In my view, the application of the substantial purpose test postulated by the AMIEU in
the present case is a mere quantitative assessment. If the principal purpose of the employment
of Trainee Supervisors is considered, then it is apparent that they are at all times principally
engaged as production workers. That is the basis of their engagement and it does not change
because they undertake a role as Trainee Supervisors.
[78] The language of clause 1.3 of the Agreement does not require that employees be
classified in a particular classification. Rather it indicates that the work that they are engaged
to perform must be covered by the classifications in the Agreement. On the evidence before
me, that is the case with respect to Trainee Supervisors, regardless of the amount of time that
they spend performing that work.
[79] It is true that some Trainee Supervisors are paid higher amounts than those applicable
to their classifications prior to commencing the role of Trainee Supervisor. However, in all
cases those higher amounts relate to higher levels in the classification structure of the
Agreement. The evidence about these payments is essentially that they are to align wage rates
for persons who are lower levels of the classification structure when they are invited to
undertake the role of Trainee Supervisor with those of persons at higher levels of the structure
who are undertaking the same role. There is no evidence that any Trainee Supervisor paid in
excess of the highest classification level in the Agreement.
[80] In any event I do not accept that the fact that a Trainee Supervisor is paid at a level
that is higher than the one pertaining to the work that the employee is engaged to perform,
changes the status of the employee so that he or she is not covered by the Agreement. The
excess payment simply reflects equity between those employees who are undertaking the
training. That such a payment is made does not change the nature of the employee’s
engagement.
[81] I am also of the view that applying the same approach, a trainee WHS Officer is
covered by the Agreement on the basis that she was engaged to undertake production work.
Similarly the production sample collector (Ms Mannell), is engaged as a production
employee. Mr Gee's evidence established that Ms Mannell does not perform laboratory work
and that she also performed production work in the packing and bagging area.32 I am satisfied
that Ms Mannell is covered by the Agreement on the basis that she was principally engaged as
a production worker.
[82] I do not accept that the two employees who have been temporarily redeployed to the
HR Department are not covered by the Agreement. Both employees are engaged as
production workers and do not cease to be so engaged by virtue of their temporary roles. The
[2014] FWC 2449
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fact that an employee who speaks a particular language engaged as a production worker, is
relieved from production duties to assist other production workers to obtain a visa, does not
remove that employee from coverage under an agreement expressed to cover persons engaged
as production workers. Similarly the employee acting the HR role is production employee
and engaged as such. That the employee is temporarily not performing production duties, is
not determinative of the coverage of the Agreement.
[83] However, if I am wrong in relation to this matter, it is also the case that whether the
two redeployed employees voted or not would not have changed the outcome of the ballot.33
[84] The construction of the Agreement I have adopted is consistent with the conduct of the
parties in relation to the Agreement and its predecessors. While I accept Mr Crawford’s
evidence about his knowledge in relation to the coverage of the Agreement, his evidence went
to whether “supervisory staff” voted in ballots for Agreements. It is apparent from the
evidence of the witnesses for the AMIEU and Teys that supervisor staff or supervisors are
employed in staff positions and paid a salary and that Trainee Supervisors are not. I do not
accept that submission that Mr Crawford’s evidence should be taken to refer to supervisory
work regardless of who that work is performed by. That submission is at odds with the
statement. Given the qualification in Mr Crawford’s statement it is not surprising that he was
not cross-examined and the fact that he was not does not strengthen his evidence.
[85] Mr Crawford’s evidence is also at odds with that of employee witnesses for the
AMIEU. It is apparent from their evidence that Trainee Supervisors have previously voted in
ballots for Agreements and that no issue has been taken because the AMIEU has supported
the approval of past agreements and the ballots have not been as close as that in the present
case.
[86] It is also apparent from the evidence of the witnesses for the AMIEU, that the
Agreement and its predecessors covers Trainee Supervisors. Mr Stagg accepted that if he had
been successful in an application for a Trainee Supervisor position, he understood that he
would have been covered by the Agreement or its predecessor. Similarly, Mr Ludwigson
clearly stated under cross-examination that he knew that Trainee Supervisors are covered by
the Agreement until the point they are offered positions as Supervisors at which point they are
paid a salary and are not covered by the Agreement.
[87] From the perspective of a reasonable person considering the text of the Agreement and
the surrounding circumstances, the proposition that a person engaged as a production worker
in a meat processing plant, who is undergoing training, in circumstances where the result may
or may not be the attainment of a salaried position, would not be covered by the industrial
instrument that covers other production workers, is contrary to the purpose and object of the
Agreement. That purpose is found in the terms of the Agreement itself, and the objects of the
Act that underpins it.
[88] The objectives of the Agreement as found in clause 1.2 include the introduction
structured training and defined career paths. The objects of the Act with respect to enterprise
agreements include the provision of a simple, flexible and fair framework. The proposition
that an employee engaged as a production worker could be removed from the coverage of an
enterprise agreement by virtue of a temporary role such as acting as a translator to assist other
[2014] FWC 2449
22
production workers to obtain visas, it not an outcome that a reasonable person would
contemplate. To follow such an argument to its logical conclusion would mean that an
employee who is performing office work - for example because he or she has sustained an
injury - could be removed from the coverage of the Agreement and other equally absurd and
illogical results.
[89] Therefore, I am satisfied that each of the requirements of ss.186, 187 and 188 of the
FW Act as were relevant to the application for approval were met.
[90] In this regard, for the reasons set out above, consistent with the Full Bench decision in
Cimeco v CFMEU, the disputed employees actually fell within the coverage of the Agreement
at the time of the vote - 1 and 2 August 2013.
[91] Given that the Trainee Supervisors were covered by the Agreement at the point that
the ballot was conducted, and were entitled to vote for its approval, I am satisfied that each of
the requirements of ss.186, 187 and 188 of the FW Act as were relevant to the application for
approval were met.
[92] With respect to the other requirements for approval, I am satisfied that:
The Agreement has been genuinely agreed to by the employees covered by the
Agreement s.186(2).
The terms of the agreement do not contravene section 55 of the FW Act (s.186(2)(c).
In accordance with the undertakings previously given, and accepted by the AMIEU
the Agreement passes the better off overall test (s.186(2)(d).
The group of employees covered by the Agreement was fairly chosen (s.186(3)),
taking into account that the group is both operationally and organisationally distinct.
The Agreement does not include any unlawful terms (s.186(4)).
The Agreement does not include any designated outworker terms (s.186(4)(A)).
The Agreement specifies a date as its nominal expiry date, which will not be more
than four years after the day on which the EA is approved (s.186(5)).
The Agreement includes a term that provides a procedure allowing FWA to settle
disputes about matters arising under the Agreement and in relation to the NES
(s.186(6)), and which provides for representation of employees covered by the
Agreement for the purposes of that procedure (s.186(6)).
Approving the Agreement would not be inconsistent with or undermine good faith
bargaining (noting that there is no scope order in operation) (s.187(2)).
[93] I approve the Agreement and an Approval Decision will issue with this Decision.
DEPUTY PRESIDENT
[2014] FWC 2449
23
Appearances:
Mr D. Williams on behalf of Teys Australia Beenleigh Pty Ltd.
Mr E. Dalgleish on behalf of The Australasian Meat Industry Employees Union.
Hearing details:
2014.
Brisbane:
April 9.
Printed by authority of the Commonwealth Government Printer
Price code C, PR549602
1 AG2013/8000
2 [2013] FWCA 7477.
3 [2013] FWC 7804.
4 [2014] FWCFB 1313.
5 [2013] FWCFB 2814.
6 (2005) 222 CLR 241 at 246 [2].
7 Ibid at 262 [67].
8 (1996) 66 IR 182 at 184.
9 See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 per Mason J and BP Australia
Pty Ltd v Nyran Pty Ltd (2003) 198 ALR 442 at 453 [34], which was applied to the interpretation of collective industrial
agreements in Community and Public Sector Union v Telstra Corporation Ltd (2005) 139 IR 141 at 152 [38].
10 (2004) 219 CLR 165 at 179 [40].
11 Ibid at [12] - [14].
12 Exhibit 1
13 Exhibit 2
14 Exhibit 3
15 Exhibit 4
16 Exhibit 5
17 Exhibit 6
18 Exhibit 7
19 Exhibit 8
20 Exhibit 9
21 Exhibit 10
22 Exhibit 11
23 Transcript of proceedings 27 September 2013 PN 100 - 102, 116, 122, 126, 131 – 136, 140 [AB 22, 23, 24, 25];
24 PN 218, 220 – 225, 265 – 267, 273, [AB 31, 32, 35];
[2014] FWC 2449
24
25 PN 584 – 585, 601 – 607, 608 - 610, 613 – 618 and 630 – 642, 650, 653 – 657, 660 – 664 [AB 58, 59 – 60, 60 – 61 and 61-
62, 63 – 64, 64].
26 Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 at [51]
27 Construction Forestry Mining and Energy Workers Union v FWA (2011) FCR 74 at 89; [79]
28 Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387.
29 PR925731.
30 PR938031.
31 Carpenter v Corona Manufacturing Pty Ltd PR925731 at [9].
32 Affidavit of Shane Gee at 29.
33 MS Security Pty Ltd [2013] FWCA 1474
