Application by Cannon Hill Services Pty Ltd T/A Australian Country Choice - [2016] FWC 7256

1

Fair Work Act 2009 
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Cannon Hill Services Pty Ltd T/A Australian Country Choice
(AG2015/7814)

Australasian Meat Industry Employees Union, The
(AG2016/2163)

AUSTRALIAN COUNTRY CHOICE (SLAUGHTERING AND BONING 

OPERATIONS) ENTERPRISE AGREEMENT 2015

Meat Industry

DEPUTY PRESIDENT ASBURY BRISBANE, 11 OCTOBER 2016

Applications to vary an agreement to remove ambiguity or uncertainty – Approach to 
construction of Agreement – Approach to variation of Agreement on grounds of ambiguity or 
uncertainty - Intention of parties – No mutual intention – Error in drafting made by Company 
– Union representatives aware of error prior to ballot of employees and approval by the 
Commission – No intention to limit application of new classification – Appropriate case for 
exercise of discretion to vary Agreement – Agreement varied to remove ambiguity. 

1. BACKGROUND

[1] This Decision concerns applications to the Fair Work Commission (the Commission) 
in relation to the Australian Country Choice (Slaughtering and Boning Operations) 
Enterprise Agreement 2015 (the 2015 Agreement).  In September 2015, the Australasian Meat 
Industry Employees’ Union (AMEIU) made an application under s. 739 of the Fair Work Act 
2009 (the Act) for the Commission to deal with a dispute in accordance with a dispute 
settlement procedure in the 2015 Agreement.1 Cannon Hill Services Pty Ltd T/A Australian 
Country Choice (ACC), the employer to whom the 2015 Agreement applies, responded to the 
dispute by making an application to vary the 2015 Agreement.2 The AMIEU then made a 
cross-application, also seeking a variation to the 2015 Agreement. Both applications to vary 
the 2015 Agreement were made under s.217 of the Act on the basis of an asserted ambiguity 
or uncertainty.  The dispute notified by the AMIEU relates to the same issue that is sought to 
be addressed in the applications to vary the 2015 Agreement.

[2] The issue upon which all three applications centre is that the wages schedule to the 
2015 Agreement (Schedule A) includes two rates, respectively designated as Level 3 and 
Level 3T.  The wage rate for Level 3T is less than the wage rate for Level 3. Schedule C to 
the 2015 Agreement, which sets out classification definitions, contains a reference to Level 3 

[2016] FWC 7256 [Note: An appeal pursuant to s.604 (C2016/6487) was 
lodged against this decision.]

DECISION


E AUSTRALIA FairWork Commission




 



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and Level 3T but specifies only one list of indicative tasks for both Levels.  The AMIEU 
contends that the Level 3T classification applies to a small number of employees performing 
what is described as “Tripe Work” and that all other employees performing tasks in the Level 
3 classification definition are Level 3 employees.  

[3] The dispute leading to the applications for variation of the 2015 Agreement, arose 
after the approval of the 2015 Agreement when ACC commenced employing persons to 
perform tasks in the classification definition for Level 3 and Level 3T other than Tripe Work 
and paying those employees at Level 3T rates.  Throughout the course of the dispute, ACC 
has variously contended that the wage rate for Level 3T applies to all employees performing 
jobs or tasks described within the classification definition for Level 3 and Level 3T who were 
employed after the Agreement was made and that the Level 3T wage rate is an hourly or time 
work rate while the Level 3 rate is an incentive rate and payable only to employees who are 
employed by ACC as incentive workers under an incentive scheme provided for in the 2015 
Agreement.  

[4] At the risk of oversimplifying the dispute, ACC maintains that the designation “T” in 
the Level 3T rate stands for “Time” and the AMIEU maintains that it stands for “Tripe”.

[5] The variation sought by ACC reflects its position that the Level 3 rate applies only to 
incentive employees and the Level 3T rate applies to employees employed on hourly or time 
based rates but that either group of employees can perform any of the tasks described in the 
classification definition for Level 3 and Level 3T.  The AMIEU seeks a variation to confirm 
that the Level 3T rate is restricted to employees doing “Tripe work”.  It is not clear what rate 
the AMIEU contends is payable to other employees who are performing work that is 
described in the classification definition for Level 3 and Level 3T although the effect of the 
variation sought by the AMIEU would be that all Level 3 employees other than Tripe workers 
would be paid the higher Level 3 rate.   

[6] The AMIEU also submits that the ambiguity in the terms of the 2015 Agreement arises 
from a drafting error on the part of the Company in that it failed to include new market rates it 
was seeking to implement in the version of the 2015 Agreement it put out for ballot and 
which was approved by the Commission on application by ACC.   The AMIEU contends that 
s.217 of the Act is not an appropriate mechanism to correct such an error. Somewhat 
confusingly, ACC conceded the drafting error on the one hand and then contended in its 
closing submissions that it was open to the Commission to interpret the Agreement in the 
manner contended for by ACC and decline to vary the Agreement on the basis that it was not 
necessary.

[7] A number of conciliation conferences were conducted in relation to the AMIEU’s 
dispute and when agreement could not be reached, it was decided that the matter could best be 
progressed by the Commission dealing with the applications to vary the 2015 Agreement with 
the dispute application being held in abeyance pending the outcome of those applications.

2. APPROACH TO VARIATION OF AN ENTERPRISE AGREEMENT TO 
REMOVE AMBIBUITY OR UNCERTAINTY

[8] By virtue of s.217 of the Act, the Commission may vary an enterprise agreement to 
remove an ambiguity or uncertainty.  An application for a variation on that basis may be made 
by an employer, employee or employee organisation covered by the Agreement.  A provision 








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in an enterprise agreement is ambiguous if it is susceptible of more than one meaning3 and 
may be ambiguous notwithstanding that the provision is capable of interpretation. If it is not 
possible to put any definite meaning on a provision, it is uncertain.4

[9] The approach to determining an application under s.217 of the Act is for the 
Commission to identify whether there is ambiguity or uncertainty in an enterprise agreement 
and then decide whether the discretion should be exercised to remove it.  The first part of the 
process involves the identification of a jurisdictional fact which enlivens the power of the 
Commission to exercise the discretion to resolve the ambiguity or uncertainty by varying the 
agreement.5 A positive finding of ambiguity or uncertainty must be made before the power to 
vary an agreement can be exercised.6  

[10] Identification of ambiguity or uncertainty involves an objective assessment of the 
words used in the provision under examination, having regard to their context,7 in order to 
determine whether, on its proper construction, the wording of the provision is susceptible of 
more than one meaning.8 The Commission will generally err on the side of finding an 
ambiguity or uncertainty where there are rival contentions advanced and an arguable case is 
made out for more than one contention.9 The threshold for finding ambiguity or uncertainty is 
not a high one.10  However, a disagreement between parties to an agreement about how it 
applies in certain factual circumstances does not of itself found an application to vary the 
agreement on the grounds of ambiguity or uncertainty11 and rival claims or contentions may 
well be self-serving12.

[11] The approach to construing industrial instruments such as enterprise agreements was 
set out in a Decision of a Full Bench of the Commission in AMIEU v Golden Cockerel Pty 
Limited (Golden Cockerel).13 The principles established in the cases referred to in that 
Decision, and in the later Decision of a Full Bench in Essential Energy v Australian, 
Municipal, Clerical and Services Union and Others14 that are relevant in the present case can 
be summarised as follows:

 Construction of an agreement begins with a consideration of the ordinary meaning of 

its words;15

 The agreement must be read as a whole16 and regard must be had to the context and 

purpose of the provision being construed;17

 Context extends to the entire agreement, other associated documents or the ideas that 

gave rise to an expression in a document;18

 The words used in an agreement should not be interpreted in a strict technical fashion, 

because those who framed the agreement are often non-lawyers with a practical frame 

of mind, drafting words in the context of custom and practice in an industry or 

particular enterprise;19

 The process of construction is an objective task and it is not appropriate to have regard 

to the subjective beliefs or expectations held by one party;

 The task of construction is to identify the common intention of the parties as they have 

expressed it in the terms of their agreement;20

 Search for evident purpose is permissible and meanings which avoid inconvenience or 

injustice may be reasonably strained for, however the task remains one of interpreting 








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a document produced by others and not giving effect to some anteriorly derived notion 

of what would be fair or just, regardless of what has been written into the agreement;21

 Regard may be had to evidence of the surrounding circumstances before the existence 

of ambiguity in an agreement is identified as an aide to interpreting the agreement for 

the purposes of determining whether an ambiguity exists, but cannot be used to 

contradict its language;

 If ambiguity is identified extrinsic material may be used as contextual material to aide 

in the interpretation of the agreement;22

 It is not permissible to take into account the conduct of parties which occurs after an 

agreement is made as an aide to interpretation.23

[12] If the Commission is satisfied that there is an ambiguity or uncertainty in a provision 
of an agreement that is sought to be varied, the Commission must then decide whether to 
exercise the discretion in s.217 to vary the provision.  In Re Australian and International 
Pilots Association24 Vice President Watson stated in relation to an earlier version of s.217 of 
the Act:

“The discretion of the Commission in the case of an ambiguity or uncertainty involves 
two questions.  First, is it appropriate to vary the agreement?  If so then secondly, 
what variations are appropriate? Similar considerations will often be relevant to both 
questions and hence the two questions frequently overlap. It is well established that a 
significant factor is the objectively ascertained mutual intention of the parties at the 
time the agreement was made. It is not appropriate to rewrite an agreement to install 
something that was not inherent to the agreement when it was made. These principles 
reflect the notion that an agreement is made by the parties usually without any 
arbitrated content or independently determined standards of industrial fairness. The 
exercise of the discretion conferred on the Commission in relation to an ambiguity or 
uncertainty does not give rise to a general discretion to determine a matter based on 
industrial fairness.  The task is to place the parties in the position they intended by 
their agreement – insofar as the wording of the agreement does not reflect that 
intention.  Although a significant factor, the objectively ascertained mutual intention 
of the parties is not the only consideration.  However, it would be unusual for other 
considerations to weigh in favour of a variation that was inconsistent with the 
intention of the parties.25

[13] It has also been held that objectively ascertained mutual intention of the parties 
evinced by their conduct after an agreement is made is relevant to the exercise of the 
discretion of the Commission to vary the agreement to resolve ambiguity or uncertainty26

although as previously noted, that conduct is not relevant as an aid to the interpretation of the 
agreement.  However, there are also cases where the parties have different intentions and no 
mutual intention can be ascertained.  In United Voice v MSS Security Pty Ltd t/as MSS 
Security27 a Full Bench of the Commission was considering an appeal against a Decision to 
vary an agreement to remove ambiguity or uncertainty, in circumstances where it had been 
found that there was ambiguity in relation to the term “all purpose”, and observed:

“It is possible in this case that that parties had different intentions as to the use of the 
words ‘all purpose’.  The resolution of the matter requires the application of the 
following logic.  If an ambiguity exists in relation to the payment of an additional 
amount, as in this case, and the evidence establishes that there is no mutual intention 








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to pay the additional amount, then it would normally follow that the Commission 
should not vary the agreement to create an entitlement that is consistent with the 
intention of only one of the parties.  Even if there is no clear mutual intention to not 
pay the additional amount, it would normally be desirable to resolve an ambiguity to 
make it clear that the amount is not payable when there is an insufficient basis to find 
that the parties agreed to pay the additional amount.  Therefore if there was no mutual 
intention to apply penalty calculations to the allowance, then absent any other 
compelling circumstances, the company’s application was likely to succeed.”28   

3. RELEVANT AGREEMENT PROVISIONS

[14] The provisions of the 2015 Agreement relevant to the questions for determination are 
set out in full in Appendix A to this Decision and are as follows:

 Clause 3.0 Definitions: Average hourly rate of pay; Contractor / Fixed Term / Specific 
Task; Employees; Ordinary hourly rate and overtime rates. 

 Clause 5.0 Parties Bound.
 Clause 20.0 Wages.
 Clause 22.0 Classification Changes.
 Schedule B Payment by Results Overview/Application. 

[15]   The provisions on which argument in relation to ambiguity centres, appear in a table 
in Schedule C – Classification schedule – Slaughtering Operations and associated areas / 
processes (Schedule C) as follows: 

Classification levels Indicative tasks / role
... ...
Level 3 and 3T An Employee at this level performs work above and beyond the 

skills of an Employee at Level 2 and is competent to perform work 
within the scope of this level.
An Employee at this level is able to undertake the following tasks: 
feeding cattle from race into box, tying weasands (not in shackling 
area); washing anus and pit; rodding weasands; removing horns; 
removal of forehooves; removing heads by severing spinal cord and 
placing on table or chain; remove first hind hoot; change first leg; 
remove second hind foot; change second leg; saving sinews from 
forelegs; trimming sides; trimming forces; trimming hinds; remove 
face and tail piece from hides; open up foreleg sleeves on hides; 
assess and record the hump measurement and ossification rating of 
carcasses, Tripe work. 

[16] The classification levels in Schedule C refer to wage rates set in Schedule A of the 
2015 Agreement. Schedule A contains weekly wage schedules for various years and work and 
includes the following [starting rates escalated through the course of the 2015 Agreement]:








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Rate
Per
Carcase

Minimum 
Rate

38
Hourly
Rate

Waiting
Time

AS Shift
Allowance

Level 3 0.4522 942.98 24.09 27.92 25.68
Level
3T

874.00 23.00 20.78

4. THE PROPOSED VARIATIONS

[17] The variation sought by ACC is as follows: 

In Schedule A – Weekly Wage Schedule Slaughter Floor and Associated 
Areas/Processes insert at the end thereof:

“Note:
Level 3 rates apply only to employees employed in Level 3/3T classifications as 
described in Schedule C as at 26 June 2015.
Level 3T rates apply only to employees first employed in Level 3/3T classifications (as 
described in Schedule C) after 26 June 2015, except for employees engaged in Hind 
Quarter Trim, Fore Quarter Trim or Dropping Tongues, who shall be paid at Level 3 
rates.”

[18] In its final submissions, ACC did not press the first sentence of its proposed variation 
and sought the addition of the words “time work” after the word “employees” where it first 
appears.  The AMIEU sought the deletion of the classification schedule  in the Agreement by 
deleting the current provisions in relation to Level 3 and Level 3T and replacing those 
provisions with the following:

Classification levels Indicative tasks / role
... ...
Level 3 An Employee at this level performs work above and beyond the 

skills of an Employee at Level 2 and is competent to perform work 
within the scope of this level.
An Employee at this level is able to undertake the following tasks: 
feeding cattle from race into box, tying weasands (not in shackling 
area); washing anus and pit; rodding weasands; removing horns; 
removal of forehooves; removing heads by severing spinal cord and 
placing on table or chain; remove first hind hoot; change first leg; 
remove second hind foot; change second leg; saving sinews from 
forelegs; trimming sides; trimming forces; trimming hinds; remove 
face and tail piece from hides; open up foreleg sleeves on hides; 
assess and record the hump measurement and ossification rating of 
carcasses. 

Level 3T An employee at this level performs work above and beyond the 
skills of an employee at level 2 and is competent to perform work 
within the scope of this level.
An employee at this level is able to undertake the following tasks: 
Tripe work.








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5. EVIDENCE

[19] Evidence on behalf of ACC in support of its application to vary the Agreement was 
given by:

 Mr Neil Carstens, Production Manager;29

 Mr Adrian Doube, General Manager of the Further Processing Division;30

 Mr Peter Milzewski, Chief Executive Officer, Processing;31 and
 Mr Peter Hamam, Group Manager Human Resources and Safety.32

[20] Evidence for the AMIEU was given by:

 Mr Robert Barton, Branch Organiser;33

 Mr Darryl McKey, employee of ACC and AMIEU Shed Vice President;34

 Mr Michael Solomon, employee of ACC and AMIEU Slaughter Floor Delegate;35

 Mr Luke Brinkworth, employee of ACC and member of consultative committee;36

 Mr Greg Bonavita, employee of ACC and member of consultative committee;37

 Mr Warrant Reynolds, employee of ACC and AMIEU Shed President;38

 Mr Delane Tumata, employee of ACC and consultative committee member;39

 Ms Bernadette Conley, employee of ACC and consultative committee member;40 and
 Mr Darren Conley, employee of ACC and consultative committee member.41

[21] It was common ground that an issue which was extensively discussed in the 
negotiations for the 2015 Agreement was the use by ACC of labour hire employees.  Those 
negotiating on behalf of the AMIEU sought to have what was called a site rates clause 
whereby employees of labour hire companies would be paid the same rates as ACC 
employees.  Those negotiating on behalf of the Company sought, as an alternative to a site 
rates clause, to implement arrangements whereby employees of labour hire companies would 
be directly employed by ACC, but would be paid what the Company termed “market rates” or 
rates below those that were paid to ACC employees at the time the 2015 Agreement was 
being negotiated.

[22] A number of other matters are not in dispute.  ACC employees are located in two main 
areas: the boning room and the slaughter floor (sometimes referred to as the kill floor).  At the 
time the 2015 Agreement was negotiated, ACC employed some employees on hourly or time 
based rates and others on what were termed incentive rates.  Incentive rates were paid to 
employees who were part of a group referred to as the “500 gang” or “500 team” or “base 
gang”.  A 500 gang is all of the positions that are necessary on a given shift for processing 
500 cattle on the slaughter floor or boning 500 bodies in the boning room.42  Employees in the 
500 gang are also entitled to be paid waiting time, and hourly rates in the Agreement for 
employees in the 500 gang are a base or minimum only, which underpins their incentive 
payments.  It is also the case that at the time the 2015 Agreement was negotiated, there were
some labour hire employees who were being paid incentive rates on the basis that they 
worked as part of the 500 gang.

[23] The employee witnesses called by the AMIEU were all members of a committee that 
negotiated the 2015 Agreement.  A number of those witnesses tendered a document that was 
said to have been tabled by the Company during negotiations setting out “new market rates” 








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proposed for employees who were employed after the 2015 Agreement came into effect.  The 
proposed market rates are for Level 2 and 3 positions in the boning room and on the slaughter 
floor.  The table setting out the rates is headed: “NEW Labour Rate From EBA Reg date”.  In 
the Boning Room the hourly rates are: 3A $25.00; 3B $24.00; 2A $22.50; 2B $21.50; and 2 
$20.70.  For the Slaughter Floor the hourly rates are $25 for Level 3; $22 for Level 3NI; 
$22.50 for Level 2A and $20.70 for Level 2.43

[24] Mr Barton’s evidence traced the history of the negotiations for the 2015 Agreement.  
Mr Barton said that he attended some 25 bargaining discussions from 18 June 2014 to 15 May 
2015 in relation to the 2015 Agreement.  At the time the 2015 Agreement was negotiated, 
there had been a significant presence of labour hire employees at ACC paid at lower rates 
than employees of ACC covered by enterprise agreements that applied to ACC’s slaughtering 
and boning operations.  The AMEIU sought a “site rates clause” to the effect that labour hire 
workers would be remunerated at the same rates as ACC employees but this was rejected by 
ACC.  ACC negotiators did indicate that they were prepared to directly engage a number of 
labour hire employees but wanted to “grandfather” the rates of pay for existing labourers and 
introduce new hourly rates of pay for new employees in labouring positions.  According to Mr 
Barton, this was particularly significant because many of the employees performing these 
labouring tasks participate in a payment by results or incentive payment system in operation 
at the plant.  Employees who participate in the incentive payment system are part of the “500 
gang”.  Grandfathered employees would continue to be part of the incentive payment system 
but new employees would receive the new hourly rates only.

[25] Mr Barton said that his notes for the bargaining meeting held on 21 August 2014 
record that ACC was proposing to grandfather employees on Level 3 and below on the 
slaughter floor and in the boning room.  The AMIEU and its representatives did not agree to 
the grandfathering but discussed with Company representatives how such a system would 
operate. At a bargaining meeting held on 30 August 2014, ACC representatives indicated that 
they would be prepared to “fill up the gang” with ACC employees but Level 3 positions and 
below would be grandfathered and new employees placed on new rates.  There was also a 
discussion about some Level 3 slaughter floor positions, which were filled by labour hire 
employees, being exempted from these new rates when they commenced direct employment 
with ACC, including positions described as two forequarter trim positions, two hindquarter 
trim positions and a person performing a task referred to as “drop heads” [which was later 
replaced with a task referred to as “drop tongues”] (the five positions).

[26] At the bargaining meeting on 1 and 7 October 2014, Mr Barton requested that the 
ACC proposal with respect to grandfathering of positions be taken off the table.  Those 
requests were refused by ACC management representatives.  In response to a request for 
further information ACC provided the document setting out proposed pay rates for Level 2 
and 3 labouring positions in the boning room and the slaughter floor.  As previously noted, 
that document contains a table headed “Slaughter Floor NEW Labour rate from EBA Reg. 
date.” and includes a level entitled “3NI” and a corresponding wage rate of $22 per hour.44  

[27] At a bargaining meeting on 2 December 2014, there was a discussion about whether 
labour hire workers who were brought across to become employees of ACC should be 
grandfathered dependent on the length of their service.  There was also a discussion about 
whether they would be offered permanent or casual employment.  Mr Milzewski put forward 
a proposal on behalf of ACC that labour hire employees with more than twelve months 
service at the ACC plant would be offered positions with the Company in the 500 gang.  








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Subsequently there was discussion and exchanges with ACC representatives about the
wording of a possible labour hire conversion clause.

[28] At a bargaining meeting on 7 January 2015, Mr Journeaux (AMIEU Queensland 
Branch Secretary) attended and raised the Union’s concerns about the reduction in rates being 
proposed by ACC and the Company’s use of labour hire. At this meeting, the AMIEU 
representatives proposed that ACC consider higher rates of pay for new employees than its 
current proposal. At a further bargaining meeting on 8 January 2015, Mr Milzewski
confirmed that ACC would not move on its proposed new pay rates.  There was a discussion 
about whether certain positions on the slaughter floor would remain part of the incentive 
system (as opposed to new rates).  Mr Barton asked for confirmation that the hindquarter and 
forequarter trim positions, head removal and head chain would be part of the incentive 
system. Mr Doube, on behalf of ACC, responded by stating that the hindquarter and 
headquarter trim positions would be incentive positions, and in response to an argument from 
Mr Solomon (AMIEU delegate) that the head removal task should be part of the incentive 
system,  ACC representatives stated that they would investigate this matter.  

[29] At a bargaining meeting on 18 February 2015, the issue of workers in the Tripe Room 
was raised.  Mr Matthews on behalf of ACC agreed that 5 people in the tripe room would be 
included in the manning levels for the 500 gang to be brought across as ACC employees.  Mr 
Barton believes that at this meeting, ACC distributed a standard manning sheet for a 500 team 
on the slaughter floor and boning room which did not include tripe workers and this prompted 
the discussion about their inclusion in the team.  At that stage the wage rates to be paid to 
tripe workers were not clear. 

[30] At a bargaining meeting on 26 February 2015, Mr Barton again raised the AMIEU’s 
concern that the rates proposed by ACC were too low.  Mr Matthews responded saying that 
ACC could not raise the rates or it would not be competitive.

[31] In relation to a bargaining meeting on 4 March 2015, Mr Barton said:

“...the Company responded with an answer about the rate that would be paid for tripe 
work.  Dave Matthews said that the Tripe Room work would be paid $23 per hour, 
and it would be called 3T.  There was no suggestion that the rate of $23 per hour 
would apply to anyone other than the tripe workers.  The ACC management 
representatives present at this meeting were Dave Matthews, Neil Carstens, Anthony 
Milzewski, Adrian Doube and Peter Phelan.  The AMIEU representatives continued to 
argue that the company proposal (which included $25 per hour for level 3 positions 
on the slaughter floor) was too low, and the company continued to defend that 
proposal.”

[32] According to Mr Barton, ACC decided to put a proposed agreement to a ballot of 
employees.  A final draft agreement was prepared by ACC and circulated to employees and 
members of the Committee negotiating the Agreement.  Mr Barton said that he read through 
the draft agreement and noticed that the new rates proposed by ACC for labourers in the 
boning room had been included in the document but that the new rates proposed by ACC for 
employees on the slaughter floor had not been included.  Mr Barton said that he relayed this 
information back to AMIEU members working on the slaughter floor.  Mr Barton tendered a 
summary of changes between the 2011 Agreement and the 2015 Agreement prepared by ACC 
and given to employees prior to the ballot, which includes the following statements:








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“Schedule A Wage Schedules – New employee market labour rates are included into 
the new agreement which also increases by 3% each year for four years.

THESE NEW EMPLOYEE RATES DO NOT APPLY TO EXISTING ACC 
EMPLOYEES.
...
Schedule C – Slaughter Floor Classifications, 3T – tripe work included in 
classification.”45

[33] A protected action ballot sought by the AMIEU was held at the same time as the ballot 
for approval of the proposed 2015 Agreement on 20 March 2015.  A majority of employees 
voted to approve the 2015 Agreement and a majority of AMIEU members also voted in 
favour of taking protected industrial action.  There was a meeting of the bargaining committee 
held on 23 March 2015 to deal with some matters relating to the 2015 Agreement, details of 
back pay and bringing employees across from labour hire agencies.  The meeting proceeded 
on the basis that the 2015 Agreement had been approved by employees and would be 
approved by the Commission in due course.

[34] According to Mr Barton, an application by ACC to the Commission for approval of 
the agreement was refused on the basis the notice of employee representational rights issued 
by the Company did not comply with the requirements of the Act.  Following the rejection of 
the agreement by the Commission, there were further meetings of the bargaining committee.  
At a meeting on 7 May 2015, also attended by Mr Journeaux, the AMIEU again argued that 
the Company should abandon the new rates.  ACC’s position was that it would make minor 
amendments to address deficiencies identified by the Commission but would not start again.  
At a subsequent meeting on 15 May 2015, Mr Milzewski confirmed that ACC was going to 
persist with the grandfathering of rates and new rates for “new employees coming in”.

[35] ACC put its proposed 2015 Agreement up for a vote for a second time.  There were 
some changes to the proposed 2015 Agreement, which were summarised in a document 
prepared by ACC.  That document, which was tendered by Mr Barton, states that the 
Commission had raised some issues about the previous version of the 2015 Agreement related 
to the definition of ordinary hours of work, and that clauses dealing with that issue had been 
reworded.46  In late August or early September 2015 (after the 2015 Agreement had been 
approved by the Commission) Mr Barton became aware that ACC was advertising vacancies 
in Level 3T positions on the slaughter floor. When this issue was raised with management by 
Mr McKey, he was informed that the Level 3T classification applied to all new employees.  
Mr Barton states that this was different to the AMIEU’s understanding of the Level 3T 
classification and led to the AMIEU initiating the current dispute.  Mr Barton tendered a 
“Positions Vacant” notice advising of opportunities for Level 3T Slaughter Floor positions on 
the day and afternoon shifts.  The criteria for the position refer to “All Level 3T tasks”.47

[36] Under cross examination, Mr Barton agreed that grandfathering rates of pay for 
existing labourers and the introduction of new rates of pay for those who had been previously 
engaged under labour hire arrangements, were core requirements that ACC told the AMIEU 
that it was seeking from the negotiations.48 Mr Barton further agreed that: ACC’s 
preparedness to employ persons who had previously been engaged under labour hire 
arrangements was in response to an AMIEU request; in return the Company wanted to 








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grandfather rates of pay for existing employees and introduce new rates for new employees;49

and ACC maintained this position from the beginning to the end of negotiations.50

[37] In relation to the five positions, Mr Barton agreed that the five employees to be 
brought over to ACC had previously been engaged by a labour hire company and that the 
proposal was that those five employees would not be employed as time workers but would 
become part of the 500 gang on an incentive plan and incentive work arrangements.51  Mr 
Barton agreed that the rates he was referring to as being too low at a meeting of 26 February 
2015, were Level 3 rates rather than Tripe Room rates and that the designation “NI” was for 
“non-incentive” and that another term for “non-incentive” is “time work”.52  Mr Barton also 
agreed that the 3NI rate when it was proposed did not apply to tripe work and was 
subsequently increased to $23 per hour.  Mr Barton maintained that the $23 per hour rate 
became the rate for tripe workers and was designated as 3T.  

[38] Mr Barton also agreed that the $22 per hour rate initially designated as 3NI was 
increased because it was below the rate for a lower level classification in the Boning Room –
2A – but maintained that the level 3T rate was a rate for tripe workers only.  Mr Barton also 
agreed that no-one from ACC stated that all the persons to whom the Level 3NI rate had 
applied were left out of that level when it was increased from $22 per hour to $23 per hour 
and designated as Level 3T.  Mr Barton further agreed that such a proposition would be 
nonsensical,53 and that no-one from the Company had ever suggested that there was going to 
be no pay rate for employees who would have been covered by the proposed 3NI rate and that 
the 3NI rate was increased to $23 per hour and narrowed to cover only employees in the Tripe 
Room.54  In response to a series of questions from the Commission, Mr Barton said:

 ACC initially proposed a rate of $22 per hour for non-incentive or time workers doing 
Level 3 jobs and designated as Level 3NI;

 The AMIEU did not agree with that rate;
 Tripe Room workers were not in that proposed level at the time because they were not 

directly employed by ACC.

[39] The following exchange occurred between the Commission and Mr Barton in relation 
to the Level 3NI and Level 3T rates: 

“No, what - no, I want to know at the time that this was being discussed, what was your 
understanding of - if the tripe workers weren't in yet and the company was proposing a 
rate of $22 for 3NI, who was going to be paid that rate?---The level 3 - the level 3 
workers, yes. That's what they - - -

Doing what?---Doing level 3 jobs.

As time workers?---As time workers, yes.

Now when you - on your own evidence, when the company said all right, we'll make 
this level 3 rate only for tripe workers, where did the rest of the people go?---Well they 
didn't go anywhere. They stayed - - -

Well they must have. They still existed?---That's right.








[2016] FWC 7256

12

What rate did they become entitled to be paid?---Well as far as we were all concerned, 
they were still under the level 3 incentive rate system.

But they were never under the incentive rate system. You just agreed a minute ago 
that there were a category of people who were time workers at level 3, right?---Not in 
the previous agreement there wasn't, no.

Well that's not my understanding of your evidence?---No, no.

My understanding of your evidence is that the company proposed a rate 3NI and you 
said, "Yes, for the time workers at level 3". I said, "What did they do?" And you said, 
"Well, they did non-skilled things", that's that you said to Mr Herbert. Now what I 
want to know is what did they do and when the company, on your own case, made this 
classification only for tripe workers, where did those other people go? Because there 
must have been some because otherwise what on earth were you talking about? If 
there weren't people in 3NI who the company proposed to pay $22 an hour to, why 
were you even negotiating about it at all?---Well there was no negotiations about it.
As I've said to Mr Herbert, that was a - that was a chart that the company put up, but 
it really didn't reflect anything.

Well who did you - you just said the company proposed a 3NI rate of $22 an hour.
That couldn't possibly work because the level 2 rate - - -?---That's right.

- - - the lower level rate was higher than the rate the company proposed for a level 
3NI?---Yes, that's right.

The company agreed to increase it to $23 an hour and then they agreed to put the 
tripe workers in it. Now what I want to know is who else was in it at the point the tripe 
workers were put in it, and if they're not in it now, where are they?---Well look, there 
was never - the tripe workers were always talked about separately from any of the 
other workers. The tripe workers were always in a category of their own.

Forget the tripe workers. Forget they existed, forget the tripe workers. You were 
negotiating a rate 3NI, before the company agreed to put the tripe workers into it, yes 
or no?---No, not incentive - - -

Well the company said $22 and you said it's not enough?---No, that's right, that's 
right.

So you were negotiating about the rate - - -?---Sorry, sorry, you're right, yes, yes.

- - - for 3NI. Who were the employees that you were negotiating on the - - -?---The 
level 3 employees, yes.

So there were no tripe workers in 3NI. Who was in it?---They were all the level 3 
workers.

All the level 3 workers?---That was what the company proposed. That was the 
company's proposal for us - - -








[2016] FWC 7256

13

But they also had a level 3. A level 3 and a level 3NI. Who was in the NI? What were 
they doing?---Well, that's right, yes.

Well I'm asking you?---Look, from my memory I can't - the 3NI, and you'll see that it's 
disappeared from - it just popped up there. From my understanding we didn't have 
anything - non-incentive rate was all covered - all of the non-incentive workers were 
already covered through the agreement.

By what?---Down into the level 2 positions, yes.

So they all went down into level 2?---Well they were always level 2. I mean I don't 
know - with this 3NI here, the company's proposal was for non-incentive workers. So 
they were the workers that were - they were the workers that weren't in level 3 and 
look, from my memory they did include the tripe workers but now that was where it 
said that they weren't paid enough and - - -

Who, the tripe workers? You weren't even - you hadn't even agreed the tripe workers 
would come in yet?---No, that's right, no. That's right, yes.

So how - - -?---I believe that that was all the company put up there to cover those 
workers, yes.”55

[40] Mr McKey said that during the negotiations AMIEU members wanted a “site rates” 
clause or the Company to move away from using labour hire by moving labour hire 
employees over to its books.  According to Mr McKey, ACC representatives said that 
consideration would be given to moving employees across but if they did so they wanted a 
grandfathering arrangement as a trade-off and to pay new employees a “new market rate”.  
According to Mr McKey, at one of the meetings, ACC handed out a document proposing 
what the new market rates should be for Level 2 and 3 positions on the kill floor and in the 
boning room.  That document tendered by Mr McKey is the same document as was tendered 
by Mr Barton.56 Mr McKey said:

“The ACC proposal was that it was prepared to top up the positions needed for a ‘500 
gang’ with permanent ACC employees, and was prepared to bring employees across from 
the labour hire companies to do so.  We had agreed upon the gang sizes in the boning 
room and on the kill floor.  The new market rates would apply to anyone employed (at 
level 2 or 3) after the 2015 EBA commenced, except to labour hire employees brought 
across to ACC who had been working at the plant from twelve months or more.”57

[41] Mr McKey and other employees believed the rates were too low because they 
considered them to be market rates for labour hire employees rather than for the meat industry 
generally, but were prepared to consider the proposal.  In a discussion about what Level 3 
positions would be paid at the new market rates, ACC’s position was that it would apply to all 
Level 3 positions on the slaughter floor except for five specific tasks – the two forequarter 
trim jobs; the two hindquarter trim jobs; and the “drop heads” task.  After being asked to 
consider the position of the Tripe Workers, the Company agreed that they were prepared to 
bring Tripe Workers under the Agreement but were not prepared to pay them $25 per hour.  
According to Mr McKey the rate of $25 per hour was the “new market rate” proposed for new 
Level 3 employees and the rate to be paid to Tripe Room workers was not resolved at the 
meeting.  Mr McKey also said that the Company responded to the question about the Tripe 








[2016] FWC 7256

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Room by stating that the Company would pay $23 per hour to employees in the Tripe Room.  
Mr McKey said that in a 500 gang there would normally be five workers in the Tripe Room 
and four of these would be the 3T classification and one would be classified at Level 2.

[42] According to Mr McKey there was never any discussion about the Level 3T rate 
applying to anyone except workers in the Tripe Room or about the various new market rates 
for other Level 2 and 3 classifications being changed to $23 per hour or being classified as 
Level 3T.  Mr McKey also said that the AMIEU never agreed with the Company proposal for 
new market rates but was prepared to discuss it because it was possible that agreement could 
be reached if the rates were increased.  

[43] Under cross-examination, Mr McKey agreed that the designation “NI” stands for non-
incentive worker, and that there had been two Level 3 positions previously that had been paid 
at a non-incentive rate.  Mr McKey also agreed that the $22 per hour rate for the Level 3NI 
position proposed by ACC was a new market rate and maintained that when that rate was 
amended and became $23 per hour and designated as 3T, he believed that it applied only to 
Tripe Workers.  Mr McKey said that he assumed that Mr Matthews (who designated the rate 
as 3T) was referring only to Tripe Room workers because that was the category of employees 
being discussed and that there was no discussion about what other classifications of employee 
may be within Level 3T because no other classifications were being discussed at the time.  

[44] In response to the proposition that if Level 3T covered only Tripe Room employees 
there was no classification for other employees on the slaughter floor at Level 3, Mr McKey 
said that when he saw the proposed 2015 Agreement that was to be put to employees for 
approval, he believed that the rate for other Level 3 employees had been left out of the 2015 
Agreement.  In relation to this matter, Mr McKey had the following exchange with Mr
Herbert on behalf of ACC:

“So, if they followed on with what had been agreed there were going to be a lot of time 
workers employed at a level 3 rate but from what you say when you saw the draft 
agreement, or when the agreement came out to be approved there was no rate in there 
for time workers of the kind that they said they would take over from labour hire 
companies, was there?---Well, no, there was only the existing level 3 rate which is an 
incentive rate and 3T, which is the tripe room rate.

All of these new workers that the union wanted to be brought on, there was no rate of 
pay for them?---Yes, there was.

No time worker rate?---There was the 3T incentive rate.

What 3T incentive rate?---The level 3 incentive rate.

You just said that was for incentive workers, not time workers. The company was 
bringing on time workers, not incentive workers. Where was the time work rate of pay 
for all these new labourers they were bringing over from labour hire?---I don't know, 
it wasn't in the agreement.”58

[45] And further:








[2016] FWC 7256

15

“Maybe they do, but if they're employed as a time worker, what's their rate of pay? It's 
not an incentive rate of pay and it's not 3T, what is it?---If they're employed as a 2A or 
a 2 that would be an hourly rate and if they're employed in the tripe room they would 
be getting 3T. All other level 3s would be on incentive.

Why?---Because - - -

They are time workers, you can't get an incentive rate of pay if you're a time 
worker?---If you start there as a time worker and they put you on an incentive job they 
have to pay you an incentive pay rate. If they hire me as a level 3 and put me on level 
5 they have to pay me level 5.

Mr McKey, you thought, didn't you, that there was no rate of pay for these people in 
the agreement and that there had been a mistake?---No, I knew there was a rate of pay 
in the agreement, it's level 3 incentive for the workers on the floor and 3T for the tripe 
room.

Be careful what you say, Mr McKey, because you have committed yourself to writing 
in relation to this. Was it not the case that you thought that ACC had left out the new 
market rates for these workers?---That's right, for reasons unknown.

Did you then arrange for the union or some representative of the committee to come 
along and tell the Commission of the approval process that this agreement has a big 
hole in it because they're going to employ all these time work labourers and they don't 
have a rate of pay there for time work labourers, did you tell that to the Commission 
or arrange for that to be told to the Commission?---I don't agree with you, in the fact 
that there is a rate of pay for everyone.

You say that is because if you employ somebody as a time worker and the work fits 
within the level 3 descriptor in the classification structure, if they're not a tripe worker 
they have to be an incentive worker even if they're employed as a time 
worker?---That's why we have classifications.

So that is your theory, is it? You say there is a rate of pay there for everyone and if 
you're working on a time system and you're not working on an incentive system, how 
do that work? How do you get an incentive rate of pay if you're not working under an 
incentive system?---Well, an example is you have your time workers who are level 2, 
2A and 3T tripe work, they're time workers. Now if somebody is hired in those 
capacities but they're put on the floor as a level 3 or 4 or a 5, well they get paid 
incentive because that's what the rates specify in the agreement.

Because the employer has in place an incentive payment scheme in relation to that 
person?---For 3, 4 and 5 they do.”59

[46] Mr Solomon attended some but not all of the bargaining meetings and also tendered 
the table setting out ACC’s first proposal in relation to rates of pay that included Level 3NI at 
$22 per hour.60  Mr Solomon said that the table shows Level 3 and Level 3NI because some 
of the Level 3 jobs are for incentive workers and others are for non-incentive workers who are 
paid an hourly rate.  Mr Solomon also said that the AMIEU believed that the market rates 
proposed by the Company were too low.








[2016] FWC 7256

16

[47] According to Mr Solomon the new rates proposed by ACC were to apply to new 
employees from the date the Agreement came into operation.  Labour hire employees who 
were brought over on to ACC’s books would be paid the new market rates unless they had 
worked for the labour hire company at the ACC plant for 12 months or more.  Mr Solomon 
also confirmed that there was a discussion at one of the bargaining meetings in which ACC 
said it was prepared to move labour hire employees to its employment to fill positions on the 
500 gang.  Further, Mr Solomon confirmed that there was a discussion about the Tripe Room 
workers being part of the 500 gang and the Company said that it would consider the Union 
position that Tripe Room workers should be brought under the 2015 Agreement.  

[48] Mr Solomon said that at a later meeting, ACC representatives said that they would be 
prepared to move Tripe Room workers over to ACC’s books and produced a manning sheet 
that included Tripe Room workers.  Mr Solomon also said that: “Most of the Tripe Room 
positions had the word ‘new’ next to them instead of a classification.”61 Mr Solomon tendered 
a copy of that document, which indicates five positions in the Tripe Room with four of those 
positions designated as being “new”.  The document tended by Mr Solomon also shows some 
positions designated as 3NI.  Mr Solomon said that he asked what the rate for Tripe Room 
workers would be and was told that the Company did not want to pay “the new level 3 rate” 
for Tripe Room workers and would get back to the AMIEU representatives about the rate for 
that work.

[49] According to Mr Solomon, at the next meeting, Mr Matthews came back with the 
Company’s response about the Tripe Room work.  Mr Matthews said that there would be a 
new rate for the Tripe Room of $23 per hour designated as Level 3T.  The Company also 
proposed a new market rate of $25 per hour for Level 3 employees and the AMIEU 
representatives were arguing for that to be increased.  In his statement, Mr Solomon said:

“The AMIEU representatives did not agree to the new market rates.  However, the 
negotiations were not getting any further, and so we agreed with the company that the 
agreement should be put up for a vote so the people could decide.

I was given a draft of the proposed agreement seven days prior to the vote.  I read 
through the draft.  Rob Barton, our AMIEU organiser, discussed the draft with me, 
and brought to my attention that the new market rates for the slaughter floor had not 
been included in the EBA, even though they had been included for the boning room.”62

[50] Mr Solomon attended a meeting of day shift slaughter floor workers prior to the vote 
for the agreement being held.  Mr Foote spoke on behalf of ACC and talked about the new 
market rates and which jobs on the slaughter floor would be grandfathered and in this regard 
mentioned forequarter trim, hindquarter trim, dropping heads and dropping tongues.  The 
Tripe Room and the 3T classification were not mentioned.  A majority of employees approved 
the 2015 Agreement but after issues were raised by the Commission with the Notice of 
Employee Representational Rights, a second ballot of employees was held.  There was no 
further discussion about Level 3T or rates for employees in the Tripe Room prior to the 
second ballot and the approval of the 2015 Agreement.

[51] In a further witness statement made on 1 March 201663, Mr Solomon said that there 
was a discussion about the Level 3T rate after the 2015 Agreement was approved by the 
Commission, around September 2015, when the present dispute arose.  During that 








[2016] FWC 7256

17

discussion, Mr Solomon said that the Level 3T rate was not the rate that was discussed for ex-
incentive workers or Level 3 employees who had been incentive workers under previous 
agreements.  Mr Solomon’s evidence was that he said something to the effect of: “You stuffed 
up the agreement”, but did not say “so that’s what we’re going with.”  Mr Solomon said that 
he made this comment because the Company representatives who drafted the Agreement left 
out the new rates for slaughter floor employees.  Mr Solomon also stated to Company 
representatives at that time that the Company was trying to “use 3T to get out of the mistake 
they had made with the Agreement.”64

[52] Under cross-examination Mr Solomon agreed with the following propositions:

 Early in the negotiations for the Agreement it was agreed that the Company would 
take on a significant number of labour hire employees and hire them directly;

 The Agreement would have to accommodate those former labour hire employees and 
their circumstances;

 The quid pro quo for the Company employing labour hire employees directly was that 
those employees (ie. new follow on labour coming across to ACC under those 
arrangements) would be paid what the Company called “market rates” which would be 
time work rates;

 If the new Agreement was to accommodate such employees it would be required to 
include a time work rate;

 Tripe Workers who were labour hire employees would be brought across to ACC as 
part of the time work system;

 Other classifications including employees dropping heads and tongues would be 
treated as being part of the 500 team and paid as incentive workers;

 The initial 3NI rate proposed by ACC was for non-incentive employees;
 Existing employees were to be “grandfathered” and new employees would be paid a 

new rate;
 ACC employees are employed as incentive or non-incentive (time work) employees;
 Incentive and non-incentive or time work employment are mutually exclusive and 

employees not included within the incentive payment scheme are, by definition non-
incentive employees or time workers.

[53] Mr Solomon did not agree that former labour hire employees employed as time 
workers who were coming across to ACC would be paid the proposed 3NI rate and 
maintained that if you were doing a job that was an incentive job, you would get the new rate 
for Level 3 of $25 per hour and that the only jobs excluded from this arrangement were head 
removal, dropping tongues, hindquarter and forequarter trimming and that employees doing 
those jobs were going to stay on the original incentive rates.  Later, head removal was
disputed by the Company.  Mr Solomon could not recall the initial Level 3NI rate proposed 
by the Company changing from $22 to $23 per hour.  In relation to the proposed rates, Mr 
Solomon had the following exchange with Counsel for ACC:

“When the agreement ultimately came out, the written draft agreement for circulation 
amongst the troops, 22 disappeared, had disappeared by then?---Yes, changed to 23.

And the 3NI had disappeared and in its place there was 3T and $23?---$23 what was -
the 3T was put for the tripe room when we asked - - -








[2016] FWC 7256

18

I haven't asked you that yet. The $22 3NI rate had disappeared and $23 and 3T was 
the only new rate in there at level 3, the only new time work rate in there at level 3, 
wasn't it?---I can't recall that, sorry.

In the draft agreement when it came out?---Sorry, I can't recall that.

You haven't read the agreement?---I have read the agreement and the rates - yes, we 
noticed the $25 rate was not in there, just the T3 was put in the agreement.”65

[54] Mr Solomon maintained that the Level 3T rate was only to apply to the Tripe Room 
employees but could not recall what was said about the designation “T” in the level.  Mr 
Solomon also said that the Company had not made it clear that the Level 3T rate was to apply 
to classifications other than Tripe Room employees.  In response to the proposition that no-
one said that the Level 3T rate was exclusively for Tripe Room workers, Mr Solomon said 
that at the time the Level 3T rate was announced the Company and employee representatives 
were discussing Tripe Room workers.  Mr Solomon said that it was assumed that the other 
workers would become time workers and be paid $25 per hour.  When challenged about the 
use of the term “assumed” Mr Solomon said that it was made clear during the negotiations 
that this is what time workers would be paid “if that job was originally incentive”.66

[55] In response to a question about what new non-incentive employees would be paid, Mr 
Solomon said that his understanding was that the Company proposed that these employees
would be paid $22 per hour.  Mr Solomon confirmed that his understanding was that new 
non-incentive time workers were to be paid $22 per hour and Tripe Workers were to be paid 
$23 per hour.  Mr Solomon said that he did not know whether the Company put the rate for 
other employees up to $23 per hour.  Appended to Mr Solomon’s witness statement was a 
document setting out standard manning for a 500 team on the slaughter floor.  Mr Solomon 
pointed to some tasks – condemned paunches and foetal blood – performed by employees 
classified at Level 3NI [non-incentive].  Mr Solomon agreed that in addition to those 
employees there are a number of other employees performing labouring work who are not in 
the 500 team and are currently being paid Level 3T rates.

[56] In response to questions from the Commission, Mr Solomon agreed that within Level 
3 there are incentive and non-incentive workers. The non-incentive workers are “off to the 
sides”.  Mr Solomon was asked by me what happened to the Level 3 non-incentive workers 
when the 2015 Agreement was finalised and responded as follows:

“So where do you say - when the company made 3NI or 3T and 3, where did the non-
incentive workers go from level 3?---Sorry, from level 3?

Originally they were talking about level 3 and level 3 non-incentive, is that 
right?---Yes, that's correct.

So there were level 3 people who were incentive and level 3 that were non-
incentive?---Yes, that's correct.

If that level 3NI ended up only for tripe workers because they've got called level 3T, 
where did the other people that were in it go?---No idea.








[2016] FWC 7256

19

So, it could have been to level 2, it could've been - - -?---Yes, level 2. The employees 
would have come over, some of them are level 2 now, some of them who are not in the 
tripe room are receiving T3 at the moment, they're downstairs, they've got nothing to 
do with tripe but they are receiving T3, some are just receiving level 2.

Where did you understand they would go?---Well, my belief was in the agreement, 
level 3s would be paid the $25 an hour and the T3 would be the tripe room and level 2, 
non-incentive would remain.”

[57] Mr Brinkworth confirmed that one of the main issues pressed by the AMIEU in 
negotiations was use by ACC of labour hire employees and attempting to have ACC directly 
employ those persons.  When the 2015 Agreement was negotiated there were some labour 
hire employees who had been working at the plant for 4 or 5 years, doing the same work as 
ACC employees and being paid less.  The issue of bringing these employees across to ACC’s 
books was raised at consultative committee meetings.  After some negotiation the Company 
agreed to bring these employees over on the basis that existing employees and labour hire 
employees who were brought over would have their rates of pay “grandfathered” and new 
employees would be paid a new rate.  Mr Brinkworth also confirmed that ACC was going to 
fill the 500 gang with people brought across from labour hire companies, and they would be 
grandfathered if they had been working for ACC for more than twelve months.

[58] In relation to the Level 3T rate, Mr Brinkworth said that there was a discussion about 
having the Tripe Workers made full time ACC employees and the 3T rate was agreed to be 
paid to Tripe Workers as there was no rate for this work because it had previously been 
contracted out.  

[59] Under cross-examination, Mr Brinkworth agreed that the discussion about Tripe 
Workers had taken place over a number of meetings but maintained that the letter “T” in the 
3T classification stood for “Tripe Workers”.  Mr Brinkworth also said that no-one said 
anything about the Level 3T rate applying to any other classifications.  In response to a 
question about what the rate would have been for time workers coming on to the slaughter 
floor, Mr Brinkworth said those employees would have been paid $25.00 per hour.  Mr 
Brinkworth agreed that the Level 3NI rate for non-incentive workers in the Company’s initial 
proposal was below the 2A rate for employees in the Boning Room.

[60] Mr Bonavita said that in negotiations the AMIEU pushed for ACC to bring labour hire 
employees across from labour hire companies and have them directly employed by ACC.  The 
Company was prepared to do that but said that it would pay new employees at “new market 
rates”, which would apply to labouring positions on the slaughter floor and in the boning 
room.  At one meeting, AMIEU representatives asked for Tripe Room employees to also be 
brought over to ACC instead of that work being contracted out.  According to Mr Bonavita, to 
get the Company to agree to this proposal, Union representatives had to agree to a new rate 
that was lower than the market rates for incentive and non-incentive labourers on the 
slaughter floor.  ACC said it would not bring these employees across at the new market rate 
for Level 3 but would only do it at a lower rate which they called Level 3T.

[61] Under cross-examination, Mr Bonavita said that he is a member of the 500 gang and is 
entitled to receive incentive payments and to be paid for waiting time.  Mr Bonavita agreed 
that there are a number of labourers in and about the slaughter floor who are not working 
under an incentive scheme.  Mr Bonavita also agreed that there were labourers employed by 








[2016] FWC 7256

20

labour hire companies who were brought over to work for ACC directly, and that these 
employees were to be paid a lower rate.  Mr Bonavita said he did not know whether these 
employees were paid a time work or an incentive rate and did not wish to speculate.  When 
asked what the former labour hire employees were to be paid, Mr Bonavita said:  “The $25 
per hour, or is it the non-incentive.  I’m not too sure because there’s the two, the non-
incentive and incentive.”67  Mr Bonavita also said that in order for ACC to agree to directly 
employ Tripe Workers, the Company required them to be employed at a lower rate – the 3T 
rate – and that only Tripe Room workers were to be paid that rate.  Mr Bonavita agreed that it 
was not said by anyone from the Company that no other employees would be paid the 3T rate 
and could not say that any one from the Company ever stated that the 3T rate was only for 
Tripe Room employees.
  
[62] Mr Reynolds, Mr Tumata, Ms Conley and Mr Conley were not required for cross-
examination and their witness statements were tendered without objection.      

[63] Mr Reynolds said that one of the AMIEU’s main concerns was the number of labour 
hire employees being used at the ACC plant and that the Union wanted the Company to bring 
people across from the labour hire agencies so that they would be directly employed by ACC.  
ACC representatives said that they would be prepared to bring enough labour hire employees 
across as permanent ACC employees to fill out a “500 gang”.  ACC management also said 
that if they did this they wanted new rates for people employed by ACC after a certain date, 
and referred to these as “new market rates”.  Company representatives said that these rates 
would be more than those workers would receive if they were working for the labour hire 
company that had previously employed them. According to Mr Reynolds, the Company 
proposal was that existing employees in the boning room and slaughter floor would be 
“preserved” and would continue to receive their existing rates of pay.  New employees would 
receive new market rates, which were hourly rates of pay.    

[64] Mr Reynolds also said that the AMIEU response to those proposed rates was that they 
were too low.  Company representatives said that the rates would either be accepted or the 
offer was no longer on the table.  At one of the meetings, Mr Solomon and Mr McKey raised 
the issue of people who worked in the Tripe Room and that there had been agency workers in 
the Tripe Room for a long time, but it was part of the kill floor.  ACC representatives said that 
they would think about bringing the Tripe Room workers over.  At a later meeting, ACC 
representatives said that they had considered the matter and were prepared to bring Tripe 
Room workers over to ACC and make them permanent.  They also said that the pay rate 
would need to be decided as there was not a classification for tripe workers in the existing 
agreement.

[65] Mr Reynolds said that the rate for Tripe Workers must have been resolved at a later 
meeting but he did not remember any discussion about this matter.  Mr Reynolds also said 
that he did not recall any discussion that the Level 3T rate would be the new market rate 
classification for the slaughter floor.  

[66] Mr Tumata is a boner and works on day shift.  Mr Tumata said that labour hire was an 
important issue in the negotiations for the 2015 Agreement and there were discussions about 
labour hire employees being given the opportunity to come across and work for ACC if they 
met the Company’s suitability criteria.  Mr Tumata also said that the Company wanted new 
rates for labourers, which they referred to as “new market rates”.  Those workers already in 
the workforce would have their rates of pay preserved but after the agreement was signed off, 








[2016] FWC 7256

21

any new employees would get the new rates.  Mr Tumata also tendered the document showing 
the proposed market rates and said that the Union responded to the proposal by stating that the 
rates were too low.

[67] Mr Tumata said that the only time he remembers the Level 3T being brought up was in 
relation to pay rates for Tripe Workers.  However Mr Tumata also said that as he works in the 
boning room, he is not familiar with all the jobs on the slaughter floor and let slaughter floor 
representatives handle this issue.  

[68] Ms Conley confirmed that ACC was seeking new rates for labourers that would apply 
to employees at Level 3 and under, and that these rates would apply to new labourers on the 
slaughter floor and in the boning room.  Ms Conley said that this issue mainly affects the 
boning room as the slaughter floor does not have as many labouring positions as there are in 
the boning room.  Ms Conley does not remember any discussion about the Level 3T 
classification during the enterprise bargaining meetings or in meetings that ACC management 
held to talk to employees about the 2015 Agreement. 

[69] Mr Conley also confirmed discussions at enterprise bargaining meetings about new 
rates in the Agreement for labourers and that the Company was going to grandfather the rates 
for existing employees and that new labourers in the boning room would get a different rate.  
Mr Conley said that he could not remember discussions about the slaughter floor but his main
focus was in the boning room.

[70] In evidence for ACC, Mr Carstens said that in negotiations for the 2015 Agreement, 
the Company commenced discussion about revising the rates for the follow-on Level 3 labour 
on the slaughter floor and the pool packers in the boning room.  Mr Carstens attended every 
meeting of the Committee that negotiated the 2015 Agreement other than meetings held in 
December 2014.  The Company stated that its objective was to generate a new lower market 
rate for those positions in line with rates being paid in other processing establishments 
throughout the country.  These rates were only to apply to new employees and did not affect 
existing employees who were to be kept on existing rates.  According to Mr Carstens, after 
discussion about the lower market rates, agreement in principle was reached on rates that were 
to apply to employees on the slaughter floor and the boning room.

[71] The rates for Level 2 employees in the slaughtering area were not changed because it 
was determined that the existing rates were already competitive, whereas the Level 3 existing 
rates were significantly above market rates available to ACC’s competitors through labour 
hire companies. The AMIEU members on the Committee raised the issue of rates for 
slaughter floor employees and sought preservation of higher rates for 6 positions.  The 
Company representatives informed employees that it was agreed that the following positions 
(the five positions) would be paid at the higher rate:

 Tongue removal (1 position);
 Hind quarter trim (2 positions);
 Fore quarter trim (2 positions).

[72] The Company did not agree to the higher rate being paid for the head removal position 
due to the fact that the employee performing this task had mechanical assistance.  Employees 
were told that the new rates tabled by the Company were final and that it would pursue the 
new rates for follow-on labour in slaughtering and boning departments. As part of the 








[2016] FWC 7256

22

discussions, ACC also agreed to transfer all employees who had been working on the site for 
labour hire companies for a period of twelve months, to direct employment with ACC.  ACC 
further committed that if these employees were placed in the base slaughtering gang their 
wage rates would be “grandfathered” at existing incentive rates on which they were engaged.  
ACC also agreed that all standard manning positions that were not filled as part of the uptake 
of long term labour hire employees would be filled by transferring other suitable labour hire 
employees over to ACC at the new market rates proposed by the Company.

[73] An enterprise bargaining progress update circulated to employees on 3 March 2015 
was tendered by Mr Carstens.  That document states that “New market rates for all employees 
will be as indicated below”, and goes on to set out wage rates for the slaughter floor for 
“Level 3” at $25 per hour and Level “3NI” as $22 per hour.  The designation “NI” is for non-
incentive.  Mr Carstens initially said that the $25 per hour was an existing rate and that the 
new market rate was $22 per hour for Level 3NI – or “non-incentive”.  In a supplementary 
statutory declaration made on 1 June 201668, Mr Carstens said that the $25 per hour was not 
an existing rate of pay for any employee at the time it was proposed.   That rate was intended 
to apply to new employees who were to be engaged in the incentive slaughtering team in the 
future in positions such as the five positions.  The $22 per hour rate was proposed for 
employees engaged at Level 3NI as it was then described.

[74] AMIEU representatives on the Committee requested and were provided with a copy of 
the standard manning for the slaughter floor for a 500 kill.  At the request of Mr McKey, the 
company considered and agreed that Tripe Room employees would be included in the 
standard manning and would be directly employed by ACC rather than engaged through a 
labour hire company.  The Company further advised that these employees would be paid the 
new “3NI” rate.  Once the Company agreed that those five positions would be in the 500 gang 
and paid incentive rates, it was not necessary to maintain a time work rate at Level 3 and the 
$25 per hour rate was removed from the then draft of the 2015 Agreement.   

[75] In a later draft of the 2015 Agreement the designation “3NI” was changed to “3T”.  
This change was made by Mr Matthews who is no longer employed by ACC.  Mr Carstens 
maintained that at no time was it agreed that the new market rates of pay applied only to tripe 
workers and not to all new employees.  The only discussion about this matter was that tripe 
workers would be included in the “new worker” rate of pay and there was no agreement that 
all other new workers would be dropped out of the “3T” classification leaving only tripe 
workers covered.  When a summary of changes to the 2015 Agreement to reflect this was 
produced, it was noted that tripe work was included in the Level 3 classification.  

[76] Subsequently it was pointed out that the proposed $22 per hour rate was slightly lower 
than the rate payable at some other sheds and this rate was increased to $23 per hour.  At all 
communication meetings in relation to the 2015 Agreement, ACC informed employees that 
the new Level 3T rate was to cover new employees engaged after the EBA was made and that 
the rates paid to existing employees were not going to change.  Slaughter floor employees had 
the concept of “grandfathering” explained to them in detail.

[77] In oral evidence, Mr Carstens said that it was envisaged that the Level 3NI 
classification rate that was originally tabled by ACC would cover follow-on labour in the 
slaughter floor area who were new employees commencing employment after the 2015 
Agreement came into effect.  Originally there was an intention that the Level 3NI 
classification would cover all follow on labour and then five positions were split out and left 








[2016] FWC 7256

23

on the incentive rate.  According to Mr Carstens, since the 2015 Agreement was approved, the 
Company has engaged 16-20 labourers in the Level 3T classification.

[78] Under cross-examination, Mr Carstens agreed that prior to the 2015 Agreement being 
approved, there were some employees who were paid a rate that the Company called 3NI, 
being a non-incentive rate or time work rate.  That rate was paid to two or three employees on 
a shift who performed the tasks of processing heart sacs, collecting foetal blood and operating 
the basement - an area under the slaughter floor.  Those employees were not part of the 
incentive arrangements and there was no rate for them in the 2011 Agreement.  A rate was 
developed for these employees and termed the Level 3NI rate.  This rate was the minimum 
hourly rate for a Level 3 employee with no incentive payment.   

[79] In response to questions from the Commission, Mr Carstens said that the initial 
proposal advanced by ACC was that all Level 3 employees would be paid the new market 
rates of pay being the Level 3NI rate of $22 per hour.  This subsequently changed in a series 
of steps.  Initially the Company proposed that existing employees would be grandfathered and 
retain the rates they were on when the Agreement was made.  New employees on Level 3 or 
lower were to be paid a lower non-incentive rate of $22 per hour. The rate of $22 per hour 
was later increased to $23 per hour.  It was then decided to split Level 3 and to place the five 
positions [previously discussed] at a higher rate of $25 per hour.  Then, to get the agreement 
across the line those five positions were designated as incentive positions and retained an 
incentive payment.  Those positions were selected because the AMIEU maintained that they 
were key positions on the chain and that persons in those positions held more skills than other 
employees. When the five positions were designated as incentive positions, the $25 per hour 
rate disappeared as there were no longer any positions it would apply to.

[80] Mr Carstens was shown Exhibit 16 and agreed that all of the new market rates set out 
in that document were time work rates. In relation to Exhibit 16, Mr Carstens maintained that 
the amount of $25 for Level 3 was a time rate offered by the Company with respect to the five 
positions and that this rate was no longer relevant once it was agreed that the five positions 
would be paid incentive rates.  Mr Carstens also said that the request by employee 
representatives for the five positions to be paid incentive rates and for the Tripe Room 
employees to be included in the 2015 Agreement, were made at a meeting on 4 March 2015 
and that the Company subsequently agreed to these requests.  Thereafter, the 2015 Agreement 
at Level 3 prescribed an incentive rate of $24.09 which was the last Level 3 rate in the 2011 
Agreement with the 3% wage increase from the 2015 Agreement added to it, and the Level 3 
rate of $23 per hour, which was a time rate for new employees.

[81] Mr Doube participated in the majority of meetings at which the 2015 Agreement was 
negotiated.  According to Mr Doube the position that the Company proposed and maintained 
was that it needed to provide current market labour hire rates of pay for new employees in the 
Agreement, in order to compete with other processors in the industry who had access to those 
rates through labour hire providers and so that the Company could directly employ a number 
of existing labour hire employees while remaining competitive.  

[82] The Committee that negotiated the 2015 Agreement never discussed naming the new 
labour rate as Level 3T and the rate was initially referred to as Level 3NI on the basis that 
“NI” stood for “non-incentive”.  The only reference to 3T that Mr Doube was aware of was in 
the final stages of negotiation meetings when the then Human Resources Manager, Mr 
Matthews, responded to a question about the new rates and said:  “I don’t care what we call it 








[2016] FWC 7256

24

– make it 3T for all I care.”  Mr Doube also said that he had never heard of any connection 
between the use of the letter “T” in the new Level 3 rate and “Tripe” before the Agreement 
was approved.

[83] Mr Doube also said that Tripe Work had been performed by contract labour 
immediately prior to the approval of the 2015 Agreement and was not referred to in the 2011 
Agreement.  Tripe Work was added to the Level 3 classification in the 2015 Agreement as 
this was the appropriate skill level.  Mr Doube said that whilst Tripe Work was included in 
the skill level it was included in relation to both classifications 3 and 3T, which had different 
pay rates depending on whether an employee performing the work was an existing employee 
with a preserved or grandfathered rate or a new employee.  Mr Doube maintained that the 
Level 3T rate was never intended for Tripe Workers only and that at no stage were those 
workers going to be paid at the existing Level 3 rates.  

[84] Mr Doube also referred to a conversation at a meeting after the 2015 Agreement was 
approved at which the issue of poor drafting was discussed.  Mr Doube said that in that 
discussion he asked Mr Solomon and Mr McKey whether they were really going to sit there 
and suggest that the Company had not discussed the payment of new market rates for new 
Level 3 employees and in response, Mr Solomon said: “ You guys stuffed up the document, so 
that’s what we’re going with.”

[85] Under cross-examination, Mr Doube maintained that the Level 3NI rate of $22 per 
hour (later increased to $23 per hour) was to be paid to all new workers at classification Level 
3.  Mr Doube was shown the document setting out proposed rates appended to the statements 
of AMIEU witnesses and said that the $25 per hour rate in that table was “the equivalent rate 
that the existing incentive level 3’s would be entitled to” and agreed that “if there was a new 
employee and they were going on to a level 3 task, that would be the rate non-incentive that 
they would receive.”69

[86] Mr Doube also agreed that on the slaughter floor, there were, at the time, a small 
number of employees who were paid the minimum hourly rate for Level 3, but were not 
incentive workers – namely pericardia workers, workers collecting foetal blood and 
undertaking a task involving condemned paunches.  These employees were paid a non-
incentive rate designated as Level 3NI.  Mr Doube went on to agree that the $22 per hour rate 
was to be paid to the employees performing those tasks and the other Level 3 tasks which had 
been incentive tasks were to be paid $25 per hour.70 Mr Doube also agreed that the five 
identified positions were going to be exempted from the new market rates of pay by the end of 
the negotiations.

[87] Mr Doube agreed that a list of labour hire employees with more than 12 months 
service was generated and that the Company agreed to grandfather those employees “if there 
was a position in the 500 gang.”71  Mr Doube further agreed that the Company acceded to the 
request of employee representatives to include Tripe Room employees in the 2015 Agreement 
and that there was a discussion where Company representatives said that they did not wish to 
pay $25 per hour to Tripe Room employees.  Mr Doube was shown Exhibit 16 and agreed 
that each of the four rates of pay in the table was a “new market rate” and that each rate was a 
time work rate.72  In re-examination, Mr Doube repeated his evidence that the $25 per hour 
rate was a new market rate intended to be paid to Level 3 follow-on labourers.
  








[2016] FWC 7256

25

[88] Mr Milzewski also maintained that the Company had sought to implement new market 
rates in the negotiations for the 2015 Agreement and needed to do this to remain competitive.  
According to Mr Milzewski, employee representatives requested that labour hire employees 
be brought “in-house” and become ACC employees.  The Company agreed to directly employ 
those persons and to preserve the incentive rates being paid to labour hire employees who had 
been engaged at ACC for a continuous period of 12 months and who were placed in the “base 
gang” in the slaughtering and boning areas.  All other labour hire employees were to be 
brought onto the Company payroll as new employees on new market rates.

[89] This has been implemented and all relevant labour hire employees have been engaged 
as Company employees on written contracts of employment, with the non-preserved group 
being engaged at the Level 3T rate of pay.  This arrangement did not affect existing ACC 
employees as they were all to be “grandfathered” at their existing rates and the new (lower) 
market rates would apply to all new Level 3 employees in the boning and slaughtering areas.  
Mr Milzewski said that he is concerned that despite the presentations and explanations about 
this matter, the AMIEU is attempting to reverse that clearly stated position by taking 
advantage of what can only be described as a drafting error.  Mr Milzewski also asserted that 
he had stated to existing employees that they would not be disadvantaged, no-one would lose 
out and labour hire employees and other new starters would gain by acquiring Company 
employment albeit at the lower market rates.  This position was agreed by the Committee. 

[90] Further, Mr Milzewski asserted that he stated to the Committee and employees that all 
new employees in Level 3 positions after the 2015 Agreement commenced would be 
employed on the new lower labour market rates even though they would perform the same 
duties of an existing Level 3 employee.  At the request of the Committee, some duties which 
would have been performed at the new lower rates were exempted from that rate and were 
agreed to be paid at the higher existing Level 3 rate even if these duties were being performed 
by new employees – forequarter trim, hindquarter trim and dropping tongues (the five 
positions referred to by other witnesses for ACC).

[91] According to Mr Milzewski, all Tripe Work at ACC had been performed by labour 
hire employees for many years and the company agreed to include Tripe Work in the standard 
manning for the 500 gang in the slaughter area and to directly employ Tripe Workers, who 
were to be engaged at the lower rate now described as Level 3T, which is the same rate that 
was to be applied to all new employees.  Mr Milzewski also pointed to the fact that in the 
Boning Room wages schedules, the different rates are clearly identified as “grandfather” (for 
existing employees), “preserved” (for long term labour hire incentive workers), or “new” (for 
all others).  

[92] After the 2015 Agreement was approved, Mr Milzewski became aware of what he 
described as inadvertence, in that Schedule A of the 2015 Agreement does not contain an 
explicit explanation of the circumstances in which an employee working at skill Level 3 
would receive either the “3” wage rate or the “3T” rate. The Level 3 and Level 3T rates are 
both included in the same skills description because the work done by both new and existing 
employees at skill Level 3 is the same. 

[93] Mr Milzewski explained that the words “tripe work” were added to the end of the 
Level 3 descriptor because prior to the 2015 Agreement ACC did not engage employees to 
perform tripe work. As ACC had now agreed to directly engage employees doing Tripe Work, 
it was necessary to add Tripe Work to the appropriate level descriptor, which was skill Level 








[2016] FWC 7256

26

3. The initiative to bring the Tripe Work into the 2015 Agreement was ACC’s and was not 
originally within the AMIEU’s log of claims.73

[94] At about the time that ACC agreed to incorporate Tripe Workers into the 2015 
Agreement (after mid-March 2015), Mr Milzewski states that the hourly rate proposed for 
new employees (which was at the time $22/hour and was called 3NI), was slightly lower than 
some other companies. It was decided to increase the rate to $23/hour. This rate – $23 per 
hour – was included in the draft 2015 Agreement under the name 3T. Mr Milzewski is not 
aware of the reason why the description of this rate was changed from 3NI; why it was called 
3T; or why it was not called “new” rate, which would have been consistent with the boning 
room schedules.

[95] Schedule A does prescribe a different rate for Level 3 and Level 3T. Mr Milzewski 
states that the only explanation for this difference which he authorised to be given, or which 
he gave, was that new employees were to have the 3T rate applied, and existing ACC 
employees or ACC employees employed in one of the exempt categories (the five positions) 
would have the Level 3 rate applied. Mr Milzewski does not accept that a proposal was ever 
put or discussed that the 3T rate was to apply to Tripe workers only. Such a proposal would 
have been contradictory to “every statement” that Mr Milzewski and other senior managers 
made to employees during bargaining.

[96] Throughout bargaining, it was always proposed that there would be two rates of pay; 
Level 3 for existing employee and Level 3NI for new employees (later called 3T). As Tripe 
Workers would be new employees, they would be covered by the new employee rate. Mr 
Milzewski maintains that ACC was consistent through negotiations that the new Level 3T rate 
would apply to all new employees at Level 3. Mr Milzewski sees no reason why ACC would 
treat employees in the boning room (which also has a new rate for new employees) differently 
to employees in the slaughter area. No such distinction was discussed or agreed. It was never 
suggested that the new market rate for new employees would be applicable in the boning 
room alone and abandoned in the slaughter area.

[97] Mr Milzewski does not accept that it is logical to pay all other Level 3 workers the 
existing, higher rate and single out Tripe Workers to receive a lower rate of pay. Mr 
Milzewski also does not accept that it is logical to agree to a lower market rate in the boning 
room but maintain the higher, uncompetitive existing rate in the slaughter room. Mr 
Milzewski absolutely rejects the proposition that the Level 3T rate was intended to only apply 
to Tripe Workers.

[98] Under cross-examination, Mr Milzewski said that existing employees of ACC were 
grandfathered at their rates at the time the 2015 Agreement was finalised.  Labour hire 
employees who had been employed for 12 months within ACC’s operations and who were in 
incentive positions, had their rates preserved.  This group of employees were those in the five 
designated positions on the slaughter floor.  Tripe Workers and other Level 3 employees of 
labour hire companies were employed by ACC at the Level 3T rate.  Tripe work was a new 
classification as the 2011 Agreement did not refer to such work.  At some point, Mr 
Journeaux showed ACC’s representatives rates being paid by another Company and the $22 
per hour rate for 3NI (later 3T) was increased to $23 per hour.   

[99] Mr Milzewski maintained that the Agreement at Level 3 contains an incentive and a 
non-incentive rate.  The 3T rate is an hourly rate for all new employees after the 2015 








[2016] FWC 7256

27

Agreement was signed. The incentive rate for Level 3 was $24.09 at the start of the 2015 
Agreement which equated to the rate for Level 3 in the 2011 Agreement with the addition of a 
3% wage increase. Mr Milzewski agreed that at the point the rate of $25 per hour was 
proposed, it had not been agreed that the five designated positions or preserved positions 
would go onto incentive rates.

[100] Mr Hamam provided a witness statement but was not required for cross-examination.  
Mr Haman said that in preparing ACC’s case in this matter, he contacted Mr Matthews. Mr 
Matthews attended most if not all bargaining meetings. Mr Hamam states that he requested 
that Mr Matthews prepare a witness statement in respect of these proceedings. Mr Matthews 
originally agreed but later had to withdraw his agreement. Mr Hamam states that Mr 
Matthews is suffering some ongoing health concerns, which have meant he is not in a position 
to give evidence. 

6. CONSIDERATION

6.1 Is Schedule C of the 2015 Agreement ambiguous or uncertain?

[101] The AMIEU submits that there is ambiguity and uncertainty with respect to the proper 
scope of the Level 3T classification in Schedule C of the 2015 Agreement.  ACC initially 
asserted that the 2015 Agreement is ambiguous and later asserted that it lacks clarity but is 
capable of interpretation.  As previously discussed, there are two wage rates in the 2015 
Agreement for Level 3 – one of those rates is designated as Level 3T and is lower than the 
Level 3 rate.  Further, there is one classification definition that appears to apply to both Level 
3 and Level 3T and no apparent delineation with respect to any of the jobs or tasks within that 
definition to make it clear which of the Level 3 or Level 3T rates applies to persons 
performing those jobs.  

[102] The parties dispute the scope of the Level 3T classification.  Their dispute even 
extends to the meaning that should be given to the letter “T” in the classification designation.  
On an objective assessment the words in the disputed provisions are susceptible of more than 
one meaning. Rival contentions are advanced and there is an arguable case for both 
contentions.  It is well established that in considering whether an agreement is ambiguous, the 
Commission may have regard to evidence of surrounding circumstances as an aide to 
interpreting the Agreement in order to determine whether an ambiguity exists.  

[103]   The context and circumstances surrounding the development of the disputed 
provisions and the negotiations about them, supports a finding that they are ambiguous.  It is 
clear from the evidence that the view of the AMIEU negotiators was that the version of the 
2015 Agreement put by the Company to a ballot of employees and then to the Commission 
for approval – because of an oversight – did not clearly provide for the new market rates the 
Company had pursued in negotiations.   There is no evidence that the Company ever dropped 
this position in the negotiations for the 2015 Agreement or that the Company explicitly agreed 
that Level 3T would only apply to Tripe work.  

[104] It is also clear that this is not a case where the parties are simply in disagreement about 
how the provisions apply.  In light of the present dispute and the competing arguments, I am 
satisfied that the Agreement is ambiguous on the basis that the disputed provisions are 
susceptible of more than one meaning.  Accordingly, the jurisdictional prerequisite to the 








[2016] FWC 7256

28

exercise of discretion to vary the 2015 Agreement is established and it is necessary to 
consider whether it is appropriate to vary the 2015 Agreement.  

6.2 Is it appropriate to vary the 2015 Agreement?

[105] In its written submissions ACC contended that the power under s.217 of the Act to 
vary an agreement is relatively unfettered and that other than establishing the presence of an 
ambiguity or uncertainty as a jurisdictional pre-requisite for exercising the power, the only 
relevant qualification to the scope of variations which might be made is that such variation 
must operate to remove the ambiguity or uncertainty and cannot be used to rewrite the 
agreement.  ACC submits that in such a case the Commission may assume that the parties did 
not intend to create uncertainty and the power of the Commission under s. 217 of the Act may 
be applied so as to remedy the omission.  In exercising the power, ACC submits that the 
Commission should give the best effect, and do as little violence as possible to the terms of 
the existing agreement, having regard to:

 The scope and purpose of the agreement so far as is revealed by the terms of the 
agreement itself; and

 Such extrinsic materials as bear on the intention of the parties in the drafting which 
occurred and to some extent miscarried.

[106] ACC further submits that the Commission is not bound by the rules that apply to a 
mere interpretative exercise, which is essentially to give effect to only the words that appear 
in the Agreement, and that s.217 is a remedial provision that allows the Commission to vary 
the Agreement by adding or subtracting words “in order to prevent the presumed intention of 
the [Agreement] from miscarrying, in circumstances where the parties failed to adequately 
express themselves in a clear way, in the course of drafting the [Agreement].” Accordingly, 
the authority of the Full Bench in Golden Cockerel is said to be of limited relevance as in that 
case the Commission was interpreting an agreement rather than exercising the power under 
s.217 of the Act to vary it.  ACC also contends that in a mere interpretation exercise, the 
Commission is confined to the words which appear in the document and is not so confined 
when exercising powers under s.217 of the Act.

[107] I do not accept that submission.  In my view, the principles set out in Golden Cockerel 
are relevant to inform a decision about whether the discretion under s.217 of the Act to vary 
an agreement on the grounds of ambiguity or uncertainty should be exercised.  In deciding 
whether it is appropriate to vary an agreement it is relevant to consider whether it is capable 
of interpretation.  If an Agreement is capable of interpretation it may not be appropriate to 
vary it.  The Golden Cockerel principles are relevant to the construction of an agreement and 
to deciding whether it is capable of interpretation.  Further, the objectively ascertained mutual
intent of parties and the question of whether that intent is expressed in the Agreement is 
central to deciding whether the discretion to vary an agreement on the grounds of ambiguity 
or uncertainty should be exercised.  The Golden Cockerel principles provide guidance in 
ascertaining how intent should be discerned and the weight that should be placed on intent.    

[108] In any event, in its oral submission the Company contended that the provisions of the 
2015 Agreement lack clarity but conceded it would be within the remit of the Commission to 
decline to vary the 2015 Agreement on the basis that it is capable of interpretation and does 
not require variation.  In order to interpret the Agreement it is necessary to apply the approach 
set out in Golden Cockerel.








[2016] FWC 7256

29

[109] As previously noted, the Company contends that a new rate – Level 3T – was 
established in the 2015 Agreement for all employees performing any of the duties included in 
the classification definition for Level 3, who were employed after the 2015 Agreement came 
into effect, other than those who had been engaged in the Company’s operations through 
labour hire companies, and who were working in certain roles that the Company agreed would 
be preserved – the five positions. The AMIEU contends that the Level 3T rate applies only to 
employees performing Tripe Work.    

[110] The starting point for construction of an Agreement is consideration of the ordinary 
meaning of its words.  Notwithstanding the ambiguity identified earlier in this Decision, there 
are other provisions of the 2015 Agreement that assist in the construction of the disputed 
provisions.  Clause 20 of the Agreement provides for current employees at the date the 2015 
Agreement was signed, to continue to receive any amount being paid to that employee in 
excess of the rate specified in the 2015 Agreement. Clause 20 further states that the excess 
amounts will be confined to employees currently receiving them and not extended to other 
employees or used as a precedent to make claims.  These provisions suggest that there was 
consideration of grandfathering existing employees, notwithstanding that further specific 
references were not inserted into the wages schedules for the slaughter floor, as was the case 
with the wages schedules applicable to the boning room.  

[111] Clause 22 of the 2015 Agreement provides that employees “shall” be engaged within a 
“specific Pay Level within the Classification Structure”.  Clause 23 provides that the 2015 
Agreement allows for the provision of “payment by results for various 
positions/classifications as outlined in the attached Schedules”.  The Payment by Results 
system in operation at ACC is provided for in Schedule B of the 2015 Agreement. Schedule B 
makes it clear that employees in receipt of incentive payments will not receive any less than 
their minimum weekly classification rate and that those rates are a safety net for incentive 
workers.  

[112] Schedule B of the 2015 Agreement contains provisions about the speeds at which the 
processing chain will operate depending on the product being processed and in relation to 
setting and changing gang sizes.  Incentive workers are also paid waiting time.   Waiting time 
is paid to employees on incentive rates when there is some cause beyond their control (eg. 
machinery malfunction), which requires them to stop work and wait for whatever is causing 
the delay to be remedied.  Schedule B provides that employees will not be paid waiting time 
caused by delays due to strikes in the meat industry, misconduct or faulty workmanship.  
Hourly rates for waiting time are higher than the minimum corresponding hourly rate for each 
classification level, reflecting the fact that waiting time rates are designed to maintain 
earnings for employees under incentive arrangements, which provide rates above the 
minimum hourly rate, who are temporarily prevented from working due factors over which 
they have no control or through no fault of their own.  

[113] It is common ground that employees engaged by ACC on a payment by results system 
have been designated as being in the “500 gang” (also referred to as the “500 Team” or “base 
gang”).  The document relates to the period when the 2011 Agreement was in operation.  The 
document tendered by Mr Barton setting out the standard manning for the 500 gang74 includes 
positions agreed between the parties as necessary to process 500 cattle in a shift for the 
purposes of the incentive rates. The 500 gang, as set out in the document, comprises 
employees on the Slaughter Floor, the Upper Offal Room and in the Boning Room.  








[2016] FWC 7256

30

Employees working in positions that are part of the 500 gang (with a few exemptions) are 
paid incentive rates.

[114] The exception to the general rule that employees in the 500 gang are paid incentive 
rates, relates to a Level 3 position designated in the 500 Gang manning list as Level 3NI.  
Persons paid at Level 3NI were performing specialised tasks described as collecting foetal 
blood, condemned paunches and working in the basement.  The evidence establishes that “NI” 
designates that the employee is paid on a non-incentive basis and that this classification was 
developed outside of the 2011 Agreement and is not included in it.  There is also no reference 
to the tasks undertaken by employees classified at Level 3NI in the 2015 Agreement.  

[115] The operation of the incentive scheme is reflected in the tables in the wages schedule.  
The tables setting out rates for employees in the boning room that are split into rates that are 
said to be “Preserved” and rates that are said to be for “New Labourers”.  The preserved rates 
include hourly rates and waiting time for employees classified at Levels 5, 4, 3A, 3B, 2A and 
2B.  The rates for Levels 2A and 2B and Levels 3A and 3B for employees in the Boning 
Room are respectively identical.  The rate for Level 2 is lower than the rate for Levels 2A and 
2B and does not have a corresponding rate for waiting time.  There are no positions 
designated as Level 2 in the 500 team with respect to the slaughter floor.
  
[116] The Level 3T rate in the wages schedule in the 2015 Agreement does not have a 
corresponding rate for waiting time.  In contrast, the Level 3 rate in the 2015 Agreement does 
have a corresponding amount for waiting time and a rate per carcase. Further, the Level 3 rate 
at the commencement of the Agreement is $24.09 per hour. That amount represents a 3% 
increase on the last rate for Level 3 in the 2011 Agreement. The Level 3 rate in the 2011 
Agreement also has a corresponding waiting time rate, and a rate per carcase, and there is no 
dispute that it was an incentive rate. Other than the evidence about Level 3NI, there is no 
evidence that any employee was directly employed by ACC at Level 3 under the 2011 
Agreement, other than on an incentive basis.  It was also the case that there were labour hire 
employees who were performing Level 3 tasks who were being paid incentive rates equivalent 
to those under the 2011 Agreement.  These employees were referred to as having their rates 
“preserved”.

[117] These provisions of the 2015 Agreement, the previous 2011 Agreement, and the 
manning sheet in relation to the 500 gang, support the Company’s assertion that the Level 3 
rate is an incentive rate and the Level 3T rate is a time rate. 

[118] The context in which the provisions were negotiated is also significant.  Most of the 
background facts are not in dispute. It is clear from the evidence that at the time the 2015 
Agreement was negotiated, ACC engaged labour hire employees to perform tasks which were 
described in the classification definition for Level 3 in the 2011 Agreement, notwithstanding 
that the 2011 Agreement did not cover labour hire employees.  Some of the labour hire 
employees were paid lower rates by their employers than were paid by ACC to its employees 
who were performing the same work.  Some labour hire employees were part of the incentive 
scheme operated at that time by ACC and were paid the same rates as those paid to ACC 
employees. The 2011 Agreement did not contain a rate for Tripe workers as these employees 
were employed by labour hire companies.

[119] The AMIEU and its members who were negotiating the 2015 Agreement sought the 
inclusion of a site rates clause whereby ACC would require labour hire companies to pay 








[2016] FWC 7256

31

labour hire employees the same rates that ACC employees were entitled to.  The AMIEU 
representatives also sought that ACC directly employ labour hire employees.  ACC’s position 
in response to these claims was that it would agree to directly employ labour hire employees 
but only on the basis that those employees would be paid “new market rates”, which would be 
lower than those paid to its own employees.  ACC’s proposal included “grandfathering” rates 
paid to its own direct employees under the 2011 Agreement and “preserving” rates paid to 
some labour hire employees who had been integrated into the incentive system operated by 
the Company.  

[120] Negotiations centred on the quantum of the new market rates proposed by ACC and 
the jobs to which those rates would apply.  ACC increased the proposed market rates during 
those negotiations.  A document circulated by ACC and tendered by a number of witnesses 
for the AMIEU75 indicates that ACC proposed a rate of $25 per hour for a level in the wages 
structure designated as Level 3 and a rate of $22.00 per hour for a level designated as Level 
3NI.  There is no dispute that the designation “NI” is an abbreviation for non-incentive and 
indicates that the proposed rate was time based.  It is significant that the document setting out 
those proposed rates does not contain any rates for waiting time.  For reasons set out above, 
this means that it is more probable than not that all of the proposed rates set out in the table in 
that document were time based, including the $25 per hour rate.

[121] There is evidence that the AMIEU representatives rejected those proposed rates 
asserting that they were too low.  This is not surprising given that the ACC proposal included 
a higher rate for a lower level – Level 2A in the Boning Room – of $22.50 per hour and the 
initial offer for Level 3NI was $22 per hour.  The evidence also establishes that at some point 
during the discussions about these rates a number of developments occurred including (in no 
particular order):

 The Level 3NI rate was increased to $23 per hour;
 The designation “3NI” was changed to “3T”; and
 It was proposed that jobs performed by five employees of labour hire companies –

hindquarter trim (2 employees), forequarter trim (2 employees) and dropping tongues 
(1 employee) (the five positions) – would be paid the Level 3 rate of $25 per hour
when they were directly employed by ACC.

[122] By 11 March 2015, Tripe Work which had previously been performed by labour hire 
employees for which there was no reference in the 2011 Agreement was said to be “included 
in classification” for Level 3T.  Consistent with a memorandum to employees of that date76, 
the final version of the 2015 Agreement contains the Level 3 definition from the 2011 
Agreement except that the full stop after the word “carcases” has been replaced with a comma 
and the words “Tripe work” have been added. 

[123] ACC’s evidence is that in order to secure agreement to its proposed new market rates, 
it changed its position from offering employees in the five positions the Level 3 time work
rate of $25 per hour and agreed that the five positions would be included in the standard 
manning for the 500 gang and that the labour hire employees performing that work would be 
directly employed by ACC and be paid incentive payments as preserved employees.   

[124] There are a number of facts that support ACC’s proposed interpretation of the disputed
provisions.  Most significantly the proposed rate of $25 per hour for Level 3 did not find its 
way into the final version of the 2015 Agreement that was voted on by employees and 








[2016] FWC 7256

32

approved by the Commission.  The Level 3 rate that appeared in the final version of the 2015 
Agreement, and which was approved by employees, is $24.09.  As previously noted, that rate 
is 3% above the final rate for Level 3 in the 2011 Agreement, and the rate in the 2011 
Agreement for Level 3 was an incentive rate with an associated hourly payment for waiting 
time.

[125] It is highly improbable that the AMIEU would have made no comment about the 
removal of the rate of $25.00 per hour for Level 3 from the Company’s proposal and its 
replacement with a rate of $24.09 per hour if it believed that the $24.09 was a time work rate
that applied to all employees in Level 3 positions regardless of when they were employed.  
The most probable explanation for the lack of response to the removal of the $25 per hour rate
for Level 3 and its replacement with a rate of $24.09 per hour, is that the latter rate was 
understood to be an incentive rate and the former rate was not, and the $25 per hour was 
irrelevant when the five positions to which it was proposed to apply, were included in the 
incentive scheme, consistent with the evidence of ACC witnesses.

[126] There is also clear evidence from Mr Barton and Mr Solomon that prior to the 2015
Agreement being voted on by employees and approved by the Commission, they formed a 
view that the new market rates sought by the Company for the slaughter floor had not been 
included.  Mr Solomon agreed that he stated to Company representatives when the present 
dispute arose, that they had “stuffed up”.  As previously noted, Mr Barton and Mr Solomon 
were unable to provide any clear evidence as to what the appropriate classification rate is for 
non-incentive Level 3 employees if that rate is not the rate for Level 3T.  

[127] This matter was not clarified in the AMIEU’s submissions.  The AMIEU submitted 
that in circumstances where the new market rates sought by the Company had been omitted, 
and employees were not within Level 3T (which the Union asserts applies only to Tripe 
Workers), then apart from the 3NI tasks they would fall within the Level 3 classification and 
be subsumed within it.  The AMIEU also submitted that the issue is what rate should be paid 
to Level 3 employees who are not employed on an incentive basis and noted that there is no 
category or classification of time worker in the 2015 Agreement and that the incentive rates 
attach to jobs not individual employees. 

[128] In my view the evidence establishes that the new market rates for employees on the 
slaughter floor were not omitted from the 2015 Agreement that was voted on by employees.  
There is a new market rate for the slaughter floor of $23.00 per hour for time workers.  The 
omission or error noted by the AMIEU representatives was that there was no delineation in 
relation to the employees to whom this new market rate would apply.  This is consistent with 
Mr Barton’s evidence that he noted at the time that the slaughter floor wages schedules 
differed from those applicable in the boning room.  That difference was that the boning room 
wages schedules differentiate between grandfathered, preserved and new rates as they apply 
to various categories of employees while the slaughter floor wages schedules do not make this 
distinction.

[129] In relation to the question of the rate to be paid to Level 3 employees not employed on 
an incentive basis, the AMIEU accepts that the Level 3 rate is “necessarily an incentive rate 
of pay”77 and did not contend that it is also a time rate.  That submission leaves the question 
of what rate applies to employees working in jobs that are within the list of tasks which 
appear to apply to both Level 3 and Level 3T but which are not tasks listed in the 500 gang. 
The AMIEU has not provided a satisfactory answer to that question.








[2016] FWC 7256

33

[130] On the evidence before me and the submissions of the parties, there is no basis for 
finding that the Level 3 rate can apply to jobs and to employees doing jobs which are not part 
of the incentive scheme.  Mr Buckley for the AMIEU accepted that in considering the rate for 
Level 3, the whole line of the wages table, including the rate per carcase, the minimum hourly 
rate and waiting time, needs to be taken into account including the rate for waiting time.  

[131] To find that the minimum hourly rate component of the Level 3 rate applies to non-
incentive positions would be contrary to the terms of the Agreement and the longstanding 
application of those terms, which makes it clear that the Level 3 rate is an incentive rate and 
does not apply to time workers.  To find that workers doing any of the tasks or jobs within 
Level 3 other than Tripe Work, are entitled to be paid incentive rates, would require ACC to 
classify those employees as incentive workers contrary to the terms of the incentive scheme in 
the 2015 Agreement.  

[132] On the plain words of the 2015 Agreement, the matter of whether ACC has an 
incentive scheme or not and which employees are appointed to positions that attract the 
provisions of such a scheme, is a matter within the prerogative of ACC.  To construe the 2015 
Agreement in the manner contended for by the AMIEU would require ACC to engage 
employees as incentive workers in positions that are not included in the 500 gang, the 
composition of which is determined in accordance with the Agreement, and would be 
contrary to the Company’s right to determine the makeup of the incentive scheme workforce.
Alternatively, to accept the AMIEU’s submission would require the Company to dissect 
incentive rates and pay one component of those rates to time workers.

[133] Accordingly, I have concluded that the proper construction of the 2015 Agreement is 
that there are common job or task descriptions in the Classification Schedule in Schedule C of 
the 2105 Agreement for Level 3 and Level 3T.  Employees can be classified by the Company 
as provided in that Schedule as incentive workers depending on whether the jobs they are 
performing are part of the 500 gang or some other agreed incentive based team.  Employees 
may also be employed to undertake jobs or positions that are not part of the 500 gang.  
Employees who are employed to perform any of the jobs or tasks described in the common 
definition for Level 3 and Level 3T are entitled to be paid at the Level 3 rate if the job is
included in the incentive scheme and at the Level 3T rate if it is not. 

[134] The fact that the 2015 Agreement is capable of interpretation and that I have
interpreted it, does not mean that it ceases to be ambiguous.  It is still necessary to consider 
whether the 2015 Agreement should be varied.  This is not a case where the mutual intention 
of the parties is objectively ascertainable.  To the contrary – the Company representatives had 
an intention to establish new market rates for new employees to be employed as time workers 
that would be lower than the rates for existing employees. In return ACC agreed to directly 
employ a number of persons who had previously been employed by labour hire companies on 
the ACC site but on the basis that – but for the five positions – these employees would be paid 
the new time work rates. AMIEU representatives sought to persuade the Company to change 
its position, and when that was unsuccessful, acquiesced in the Company putting the 2015
Agreement to ballot.  

[135] There is nothing unusual in the course of enterprise bargaining for a Union or 
employee representatives to acquiesce in an agreement which they do not fully support, being 
put to a ballot of employees.  The unusual circumstance in this case is that the AMIEU 








[2016] FWC 7256

34

representatives were aware that the Company had omitted to clearly delineate between 
incentive rates for existing employees and time work rates for new employees on the 
slaughter floor (as it had for boning room employees) in the version of the 2015 Agreement 
put to employees for approval, and did not point this out before the 2015 Agreement was 
voted on by employees and approved by the Commission.  The AMIEU now asserts that an 
application under s.217 of the Act is not an appropriate mechanism to correct such a mistake
and seeks a variation to reflect its position.  

[136] There is irony in this submission.  The conduct of the AMIEU in not pointing out the 
Company’s drafting error may have been a legitimate bargaining tactic or hard bargaining.  
The AMIEU was not obliged to assist the Company to draft an Agreement reflecting a 
position that the AMIEU did not agree with.  The AMIEU may be entitled to take advantage 
of what can only be described as incompetence on the part of those who drafted the 
Agreement.  However, in circumstances where the AMIEU allowed a version of the 
Agreement to go to ballot when its representatives knew that what was being voted on did not 
properly reflect the Company’s final position the AMIEU cannot now seek to vary the 
Agreement to reflect its own position using an ambiguity that it played a part in creating.  To 
vary the Agreement to reflect the AMIEU’s position would be an inappropriate exercise of the 
discretion in s. 2176 of the Act.

[137] The evidence does not establish mutual intention of the parties in relation to the 
application of the Level 3T rates.  The evidence does not establish any intent on the part of the 
Company that Level 3T would apply only to Tripe work.  I am also of the view that there is 
no reasonable basis for employees to have had a belief that the Level 3T rate applied only to 
Tripe work. The Company’s position was that the new market rates would apply to all new 
employees. Nowhere do the witnesses for the AMIEU assert that any Company representative 
said that the Level 3T rate applied only to Tripe work.  The fact that Tripe work was being 
discussed when the classification was designated as Level “3T” instead of its previous 
designation of 3NI does not establish a reasonable basis for such a belief.  At best, the 
evidence establishes that the Company agreed that it would include Tripe work on the basis 
that Tripe workers had previously been engaged by labour hire companies.  

[138] However, this is a case where notwithstanding that there is no clear mutual intent, it 
would be desirable to vary the Agreement in the manner proposed by the Company to make it 
clear that, consistent with my interpretation of the 2015 Agreement, Level 3T is not confined 
to Tripe Work. The objective background facts established from both ACC and AMIEU 
witnesses include that ACC was pressing for new market rates for Level 3 and did not depart 
from that position. I am also satisfied that the Company did not intend, and did not agree, that 
Level 3T would be confined to Tripe Work and that the error in the drafting of the 2015 
Agreement has led to unintended consequences.  The drafting of the 2015 Agreement leaves 
much to be desired.  ACC is a large company with dedicated human resource management 
professionals and the poor drafting and conflicting evidence given by Company witnesses, is 
surprising. Nonetheless I am satisfied that this is an appropriate case for the exercise of the 
discretion to vary the 2015 Agreement.

[139] Further, I am not satisfied that the AMIEU representatives who negotiated the 
Agreement intended that the Level 3T rate would apply only to Tripe work.  If that was the 
intention, then the failure of witnesses for the AMIEU to explain what rate would apply to 
time workers at Level 3 and of the Union to articulate its position on this issue in the hearing, 








[2016] FWC 7256

35

is surprising.  In my view, the arguments of the parties about what the letter “T” stands for –
time or tripe – is more about opportunism than intent.

7. CONCLUSION

[140] I am satisfied that the classification definition in the 2015 Agreement for the Level 3 
and Level 3T classifications is ambiguous so that the power to vary the 2015 Agreement 
under s. 217 of the Act is enlivened.  While the ambiguity can be resolved by applying the 
principles relevant to the construction of Agreements, in the absence of clear and compelling 
reasons to the contrary, I have decided to vary the 2015 Agreement in the terms sought by 
ACC to make it  clear that the Level 3 and Level 3T definition in Schedule C is a combined 
definition, by including a note under the Slaughter Floor Wages Table in Schedule A that 
makes it clear that employees who are employed as time workers after the Agreement came 
into effect, to perform any of the jobs in the Level 3/3T definition, are to be paid the rate 
applicable to Level 3T.

[141] ACC is to file in the Commission a consolidated version of the 2015 Agreement 
incorporating the variation by 4pm on Thursday, 13 October 2016. Once a consolidated 
version of the 2015 Agreement is filed an Order will be issued varying the 2015 Agreement 
and publishing a consolidated version on the Commission’s website.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code G, AE414513  PR586274


ORK COMMISSION AUSTRALIA THE SEAS OF FAIR




 



[2016] FWC 7256

36

APPENDIX A

3.0 Definitions
...
Average hourly rate of pay means the ordinary week’s pay for the employee divided by 38, 
or as required by the Company within the Slaughtering Operations and Associated Areas up 
to forty (40) hours.
Week’s pay means the ordinary rate of pay for the Employee concerned provided that such 
rate shall exclude:

 Overtime;

 Penalty rates;

 Disability allowances;

 Shift allowances;

 Special rates;

 Fares and travelling time allowances;

 Bonuses; and

 Any other ancillary payments of a like nature.

...
Contractor/Fixed Term/Specific Task engagements are for a specific need/time in which 
there is no on-going expectation of employment beyond the time period or job engaged for. 
(Such personnel are not subject to this Agreement).
Employees shall mean a current Employees (sic) and or future eligible Employees covered by 
the classifications herein.
...
Ordinary hourly rate and overtime rates
For time Employees, except where otherwise expressly provided:-

Ordinary hourly rate shall mean the Agreement rate of pay per rostered week 
prescribed in the attached classification schedule, for the classification of the Employee, 
divided by 38
Time and one half shall mean the ordinary hourly rate increased by 50 per cent; and
Double time shall mean the ordinary hourly rate increased by 100 per cent.

For Employees under the incentive payment system:
Time and one half shall mean the unit rate increased by 50 per cent; and
Double time shall mean the unit rate increased by 100 per cent.

5.0 Parties Bound

The Parties to this Agreement are:
 Cannon Hill Services Pty Ltd; and

 The Employees are eligible Employees covered only by the classifications set out 

herein (other than Employees of any description who are engaged through labour hire 

or similar entities at any time) and the Union (as defined) who are signatories to this 

Agreement.

20.0 Wages








[2016] FWC 7256

37

The wages to be paid to Employee is that specified in the attached Schedules. However, any 
current Employees as at the date of the signing of this Agreement receiving a rate in excess of 
the rate specified shall retain the excess amount upon this Agreement being made. These 
anomalies shall be confined to Employees currently receiving such excess and shall not be 
extended to any other Employees or used as a precedent for any claim by the union or 
Employees or eligible Employees.

20.1 Wage Increases Boning and Slaughter Floor Employees
This Agreement will pay for wage increases of 3% payment each year of the 
Agreement, as per the relevant Schedules.
The First year increase will coming into effect for the first pay period following the 
approval of this Agreement by FWC. Subsequent increases will be on the 12 month 
anniversary date thereafter.
A corresponding percentage increase in allowances will apply over the 4 years.

22.0 Classification Changes

Employees shall be engaged within a specific Pay Level within the Classification Structure. 
Employee’s classification and pay levels will be confirmed to Employee upon 
engagement/transfer/promotion in writing. Employees will need to achieve full competency 
within the Employee’s current classification level in order to be considered for advancement 
to higher classification vacancies. 
Employees recognise that the undertaking of training will not automatically result in an 
upgrade of Employee classification. The Company has the discretion to make appointments 
within Classification Levels for an Employee, however appointments will be made with 
regards to the Promotion and Advancement Clause within this Agreement. All appointments 
must be confirmed in writing to the employee to be confirmed. 

SCHEDULE B

Payment by Results Overview/Application

The purpose of this schedule is to outline the terms/application applicable to those Employees 
and positions in which a Payment by Results provision will operate as referred to in Clause 3 
Definitions. Employees will not receive any less than their minimum weekly classification 
rate; this amount is the ‘safety net’ and not based on production throughput. Payment by 
Results applies to both Beef and Veal slaughtering operations.
The Company will be responsible for regulating and controlling the operational processes to 
ensure the safety of Employee, product quality and food safety standards are maintained. 
Production will be where practical evenly distributed across the production schedule 
(shift/day/week).
Daily production speeds/processes will be set based on the following assessments:

o Production volume required/available;

o Health & Safety and Food Safety issues;

o Manning and skill levels within the crews;

o Plant/equipment issues;

o Product specifications; and

o Any other regulatory requirements required of the operation.








[2016] FWC 7256

38

The Company has the right to submit different production programs, staffing levels and 
operational controls in order to achieve efficient and effective output.

Processing Rates – Slaughtering Operations and associated areas/processes
For the purposes of the Slaughter Floor, the chain speed shall be regulated and controlled by 
the Company so as to provide as near as practicable, an even distribution of the daily 
production target, including an agreed tolerance, over the ordinary/usual hours of work. 
Unless agreed between the slaughtering team and management, the chain speed shall not be 
set to exceed the following levels when processing 500 head of cattle per shift:

Beef- 75 per hour
Veal- 76 per hour
Heavy Cattle- 72 per hour
Dirty Cattle- 69 per hour

Heavy Cattle – A slaughter team representative and an officer of the company will 
participate in the identification of Heavy cattle. Where heavy cattle are agreed, discussion will 
occur between the Slaughter Floor Manager and the nominated Slaughter Team representative 
on consideration for adjusting of chain speeds.
Dirty Cattle – The Company will where possible source additional labour to assisting with 
shearing hides along operating lines. A Slaughter Team representative and an officer of the 
Company will participate in the identification of dirty cattle. Where labour cannot be sourced 
additional shearing knives will be supplied by the Company.
The Company has the right to submit a different size kill and in doing so staffing levels 
change.
Different Gang Sizes – In accordance with the Consultative Committee agreement there are 
other agreed gang sizes that can be applied by the Company including the current 420 and 500 
gangs. Payment of different gang sizes within a shift will be paid for on the basis of whatever 
hours a particular gang size is operating that the percentage of the kill will formulate the 
percentage of the day and the maximum kill is worked out accordingly.
...
Payment of Waiting Time

Employees shall not be paid waiting time for any delay in starting work or interruptions of 
work by reason of:

o Any strike in the meat industry

o Misconduct by Employees of the Company bound by this Agreement

o Proven faulty workmanship

Employees shall be entitled to waiting time for any delay or interruption of work due to any 
other cause. Waiting time shall be paid by the minute and based on the above rates.
The Company will endeavour to keep changeovers whilst employees are working in overtime 
to five (5) minutes as a minimum. Where this will not be achieved then waiting time will be 
payable for time outside the five (5) minutes.








[2016] FWC 7256

39

                                               
1 C2015/6222.
2 AG2015/7814.
3 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 at 350 per Mason J.
4 Meehan v Jones (1981-1982) 149 CLR 571 at 578 per Gibbs CJ.
5 Re: Tenix Defence Systems Enterprise Agreement PR917548 at [33] – [35] per Ross VP, O’Callaghan SDP and Foggo C.
6 CoInvest v Visionstream (2004) 134 IR 43 at 55 per Ross VP, Ives DP and Blair C.
7 Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union AG812496 PR924146 at [18] per Ross 

VP.
8 Re Linfox -  CFMEU (CSR Timber) Enterprise Agreement 1997 Print Q2603, 30 June 1998, per Munro J.
9 Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union AG812496 PR924146 at [20] per Ross 

VP citing Re: Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites 

SDP and Grimshaw C at p. 4; Re CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and 
Larkin C at para 13; Re Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, Print PR917548, 9 May 

2002 per Ross VP, O'Callaghan SDP and Foggo C.
10 United Voice v MSS Security Pty Ltd T/A MSS Security [2016] FWCFB 4979 at [19].
11 Construction, Forestry, Mining and Energy Union 175/99 N Print R2431 per Harrison SDP, Drake SDP and Larkin C.
12 SJ Higgins and Others v CFMEU PR903843 at [7].
13 [2014] FWCFB 7447.
14 [2015] FWCFB 1981.
15 City of Wanneroo v Australian Administrative Clerical and Services Union (2006) 153 IR 426
16 Amcor Limited v CFMEU and Ors [2005] HCA 10.
17 Short v Hercus (1993) 40 FCR 511 at 518.
18 Ibid. 
19 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
20 Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).
21 Kucks v CSR (1996) 66 IR 182.
22 [2014] FWCFB 7447 at [30].
23 [2015] FWCFB 1981 at [23].
24 (2007) 162 IR 121.
25 Ibid at [16] – [17].
26 Telstra Corporate Group Enterprise Agreement PR954989 14 January 2005 at [47] per Ross VP, Lacy SDP and Smith C; 

Tenix Defence Pty Limited Certified Agreement 2001-2004 PR917548 9 May 2002 at [28], [32] and [54] per Ross VP, 

O’Callaghan SDP and Foggo C.  
27 [2016] FWCFB 4979.
28 Ibid at [23].
29 Statement dated 19 February 2016 Exhibit 14; Statement dated 1 June 2016 Exhibit 15.
30 Statement Exhibit 19.
31 Statement Exhibit 20.
32 Exhibit 21.
33 Exhibit 1 – Statement of Robert Barton, Exhibit 2 – Further Statement of Robert Barton.
34 Exhibit 3 – Statement of Daryl McKey, Exhibit 4 – Further Statement of Daryl McKey.
35 Exhibit 5 – Statement of Michael Solomon, Exhibit 6 – Further Statement of Michael Solomon. 
36 Exhibit 8 – Statement of Luke Brinkworth.
37 Exhibit 9 – Statement of Greg Bonavita.
38 Exhibit 10 – Statement of Warren Reynolds.
39 Exhibit 11 – Statement of Delane Tumata;
40 Exhibit 12 – Statement of Bernadette Conley.








[2016] FWC 7256

40

                                                                                                                                                  
41 Exhibit 13 Statement of Darren Conley.
42 Exhibit 10 – Witness Statement of Warren Reynolds paragraph 8. 
43 Exhibit 1 – “RB1”; Exhibit 3 – “DM”1; Exhibit 5 – “MS-1; Exhibit 8 – “LB-1”; Exhibit 9 – “GB-1”; Exhibit 10 “WR-1”.
44 Exhibit 1 – Statement of Robert Barton Annexure “RB-3”.
45 Ibid Annexure “RB-5”.
46 Ibid Annexure “RB-6”.
47 Ibid Annexure “RB-7”.
48 Transcript of proceedings PRN 250.
49 Transcript of proceedings PRN 251-252.
50 Transcript of proceedings PRN 258.
51 Transcript of proceedings PRN 259 – 268.
52 Transcript of proceedings PRN 283 – 286.
53 Transcript of proceedings PRN 331-336.
54 Transcript of proceedings PRN 392-394.
55 PN424 to PN447.
56 Exhibit 3 Statement of Darryl McKey Annexure “DM-1”; Exhibit 1 Annexure “RB-3”.
57 Exhibit 3 paragraph 6.
58 PN588 to PN592.
59 PN604 to PN612.
60 Exhibit 5 Statement of Michael Solomon – Annexure “MS-1”.
61 Exhibit 5 Statement of Michael Solomon paragraph 9.
62 Exhibit 5 paragraphs 13 and 14.
63 Exhibit 6 Further Statement of Michael Solomon.
64 Exhibit 6 paragraph 4.
65 Transcript of proceedings PN674 – PN678.
66 Transcript of proceedings PN705-708.
67 Transcript of proceedings PN851.
68 Exhibit 15 – Supplementary Statutory Declaration of Neil Carstens.
69 Transcript of proceedings PN1216-1221.
70 Transcript of proceedings PN1231-1232.
71 Transcript of proceedings PN Transcript of proceedings PN1249.
72 Transcript of proceedings PN1283-1284, PN1295..
73 PN1365.
74 Exhibit 1 – Annexure “RB-4”.
75 Exhibit 1 – Annexure “RB-3”; Exhibit 3 – Annexure “DM1”; Exhibit 5 – Annexure “MS1; Exhibit 8 – Annexure “LB1”; 

Exhibit 9 – Annexure “GB1”; Exhibit 10 – Annexure WR1; Exhibit 11 – Annexure “DT1”.
76 Exhibit 1 – Annexure “RB-5”.
77 Transcript of proceedings PN1729.

Cases cited by this decision: