1
Fair Work Act 2009
s.604 - Appeal of decisions
The Australasian Meat Industry Employees Union
v
Teys Australia Beenleigh Pty Ltd
(C2014/4178)
Meat Industry
SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER SIMPSON MELBOURNE, 18 SEPTEMBER 2014
Appeal against decisions [[2014] FWC 2449 and [2014] FWCA 2453] of Deputy President
Asbury at Brisbane on 10 April 2014 in matter number AG2013/8000 - coverage of enterprise
agreement - principal purpose of employment - agreement not genuinely agreed to.
CONTENTS Paragraph
DECISION OF SENIOR DEPUTY PRESIDENT ACTON AND COMMISSIONER SIMPSON
Introduction [1]
First instance proceeding and decisions [4]
Grounds of appeal [10]
FW Act provisions [12]
2013 Agreement provisions [22]
Construction of industrial instruments [29]
Evidence at first instance [40]
[2014] FWCFB 5643 [Note: a correction has been issued to this document]
[Note: refer to the Federal Court decision dated 31 July 2015 [2015]
FCAFC 105 for result of appeal]
DECISION
E AUSTRALIA FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2015/2015fcafc0105
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2015/2015fcafc0105
http://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB5643_PR558521.htm
[2014] FWCFB 5643
2
CONTENTS Paragraph
Consideration of the appeal [54]
(a) Permission to appeal [54]
(b) Work covered by the classifications [69]
(c) Trainee Supervisor [79]
(d) Trainee Workplace Health and Safety Officer [98]
(e) Other employees [111]
(f) Quashing of the decisions [120]
Conclusion [127]
DECISION OF SENIOR DEPUTY PRESIDENT RICHARDS
Introduction [130]
Coverage [135]
Principal purpose for which the employee is employed: Trainee Supervisors [139]
Approach to clause 1.3 of the Agreement [156]
Past conduct [170]
Are production employees who undertake supervisory training engaged in
“supervisory work”?
[173]
Employees continuing work in production [180]
Training and “supervisory work” [186]
Coverage considered [189]
The nature of clause 3.4 - payment and scope of training [191]
Other trainees and employees on temporary assignments [199]
Acting Translator [199]
HR Trainee [205]
Trainee WHS Officer [208]
Sampling Role [210]
Conclusion [216]
[2014] FWCFB 5643
3
DECISION OF SENIOR DEPUTY PRESIDENT ACTON AND
COMMISSIONER SIMPSON
Introduction
[1] The Australasian Meat Industry Employees Union (the AMIEU) has appealed the
decisions1 of Deputy President Asbury approving the Teys Australia Beenleigh Pty Ltd
Production Departments Enterprise Agreement 20132 (the 2013 Agreement). This decision
deals with that appeal.
[2] In hearing the appeal, pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth) (the
FW Act), we granted Teys Australia Beenleigh Pty Ltd (Teys) permission to be represented
by a lawyer in the exercise of our discretion. We were satisfied it would enable the matter to
be dealt with more efficiently, taking into account the complexity of the matter. We were so
satisfied having regard to the appeal dealing with the coverage of the 2013 Agreement and the
right of employees to vote to approve the 2013 Agreement under the FW Act.
[3] The AMIEU was represented by an employee of the AMIEU, there being no contest
that the eligibility rules of the AMIEU extend to employees covered by the 2013 Agreement.
There was no opposition to them being so represented.
First instance proceeding and decisions
[4] The FW Act provides that an employer that will be covered by a proposed enterprise
agreement may request the employees employed at the time who will be covered by the
agreement to approve it by voting for it.3 Further, the FW Act provides that if the employees
of the employer that will be covered by a proposed non-greenfields single enterprise
agreement have been asked to approve the agreement then the agreement is made when the
majority of those employees who cast a valid vote approve the agreement.4
[5] The 2013 Agreement was approved by a vote of employees, the results of which were
declared on 5 August 2013. Some 359 employees voted to approve the 2013 Agreement and
343 employees voted against its approval.
[6] An application to the Fair Work Commission (the FWC) for the FWC’s approval of
the 2013 Agreement was made by Teys on 8 August 2013. The application for approval was
opposed by the AMIEU, which had been a bargaining representative for the 2013 Agreement.
[7] During the FWC’s consideration of the application for the FWC’s approval of the
2013 Agreement, the AMIEU claimed that there were irregularities associated with the ballot
on the approval of the 2013 Agreement. The irregularities claimed included that employees
who were not entitled to vote in the ballot were included on the roll of voters. In that regard,
it was asserted that 21 employees who were not covered by the 2013 Agreement were
included on the roll of voters. It was not in dispute before the Deputy President that the 21
employees in question were on the roll of voters and that those 21 employees may have voted
in the ballot. The 21 employees in question were:
[2014] FWCFB 5643
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17 Trainee Supervisors;
a Trainee Workplace Health and Safety Officer;
a Vietnamese translator;
an employee acting in a “HR” role; and
a Production Sample Collector.
[8] Before the Deputy President, the AMIEU contended that the outcome of the ballot on
approval of the 2013 Agreement may have been different if the 21 employees in question had
not been included on the roll of voters. They said this was because the margin by which the
2013 Agreement was approved by employees was less than the number of employees who
were not entitled to vote who were included on the roll. Accordingly, they said the FWC
could not be satisfied the 2013 Agreement was genuinely agreed to by the employees covered
by it, as required by the FW Act before the FWC can approve the 2013 Agreement.5
[9] The Deputy President decided that the 21 employees in question fell within the
coverage of the 2013 Agreement at the time of the vote on its approval. Then, being satisfied
of the other requirements for approval of the 2013 Agreement by the FWC, including that the
2013 Agreement had been genuinely agreed to by the employees covered by it,6 decided to
approve the 2013 Agreement. Having made that decision,7 she went on to also issue an
approval decision.8
Grounds of appeal
[10] The AMIEU submitted to us that the Deputy President erred in concluding that the
21 employees in question fell within the coverage of the 2013 Agreement at the time of the
vote on its approval and that the 2013 Agreement had been genuinely agreed to by the
employees covered by it. They sought that her decisions approving the 2013 Agreement be
quashed. Teys opposed the grant of permission to appeal and sought the dismissal of the
appeal.
[11] In considering this matter it is appropriate to set out the relevant provisions of the
FW Act and the 2013 Agreement, the relevant authority on the construction of industrial
instruments and the evidence at first instance, before considering the appeal and concluding.
FW Act provisions
[12] Section 172(2) of the FW Act provides that an employer may make an enterprise
agreement with the employees who are employed at the time the agreement is made and who
will be covered by the agreement.
[13] In Construction, Forestry, Mining and Energy Union v Fair Work Australia,9
Katzmann J said in respect of s.172:
“In essence, all the majority picked up from paragraph 683 was the reference to clause
53 (now s 53 of the Act). In my view, whatever the intention of the draftsperson may
have been, the use of the expression ‘employees who will be covered by the
agreement’ in s 172 does not make it clear ‘that the employees covered by the
agreement are not limited to those employees who were employed at the time the
agreement was made’, but may also include employees employed at a later time as
[2014] FWCFB 5643
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long as they fall within the specified class. On the contrary, s 172 is concerned with
the making of an enterprise agreement and the employer can hardly make an enterprise
agreement with employees not yet employed, even if some time in the future they may
be covered by the agreement. Objectively, the intention of the legislature in using the
expression was to ensure that the employer could only make an agreement with those
employees who were named or described in the agreement and whom the agreement
purported to cover.”10
[14] Section 53(1) of the FW Act sets out when an enterprise agreement covers an
employee or employer, and relevantly provides as follows:
“53 When an enterprise agreement covers an employer, employee or employee
organisation
Employees and employers
(1) An enterprise agreement covers an employee or employer if the agreement is
expressed to cover (however described) the employee or the employer...
(6) A reference in this Act to an enterprise agreement covering an employee is a
reference to the agreement covering the employee in relation to particular
employment.”
[15] Further s.256A of the FW Act sets out how employees and employers are to be
described in an instrument, as follows:
“256A How employees, employers and employee organisations are to be
described
(1) This section applies if a provision of this Part requires or permits an instrument
of any kind to specify the employers, employees or employee organisations
covered, or who will be covered, by an enterprise agreement or other
instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of
subsection (2), the class may be described by reference to one or more of the
following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.”
[16] Section 181(1) of the FW Act provides for an employer to request employees to
approve a proposed enterprise agreement, as follows:
[2014] FWCFB 5643
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“181 Employers may request employees to approve a proposed enterprise
agreement
(1) An employer that will be covered by a proposed enterprise agreement may
request the employees employed at the time who will be covered by the
agreement to approve the agreement by voting for it.”
[17] Section 182(1) of the FW Act sets out when an enterprise agreement is made, as
follows:
“182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a
proposed single-enterprise agreement that is not a greenfields agreement have
been asked to approve the agreement under subsection 181(1), the agreement is
made when a majority of those employees who cast a valid vote approve the
agreement.”
[18] Section 185(1) of the FW Act provides that if an enterprise agreement is made, a
bargaining representative for the agreement must apply to the FWC for approval of the
agreement.
[19] Section 186 of the FW Act sets out general requirements as to when the FWC must
approve an enterprise agreement, and relevantly provides as follows:
“186 When the FWC must approve an enterprise agreement—general
requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under
section 185, the FWC must approve the agreement under this section if the
requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings
(see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has
been genuinely agreed to by the employees covered by the agreement;
and...
(c) the terms of the agreement do not contravene section 55 (which deals
with the interaction between the National Employment Standards and
enterprise agreements etc.); and
[2014] FWCFB 5643
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(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see
section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall
test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment
Standards (see paragraph 55(4)(b)).
[20] Section 188 of the FW Act sets out when the employees have genuinely agreed to the
enterprise agreement, as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement
complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval
steps);
(ii) subsection 181(2) (which requires that employees not be
requested to approve an enterprise agreement until 21 days after
the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection
182(1) or (2) applies (those subsections deal with the making of
different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement
has not been genuinely agreed to by the employees.”
[21] The expression “will be covered” in s.182(1) of the FW Act was considered in Cimeco
Pty Ltd v Construction, Forestry, Mining and Energy Union and Others,11 in circumstances
where employees who had voted on the approval of an enterprise agreement included
employees who did not fall within the coverage clause of the agreement at the time of the
vote. In Cimeco, a Full Bench of Fair Work Australia stated the following:
“[48] The second matter we wish to address concerns whether the Midwest
Agreement was made in accordance with the Act. Fair Work Australia is not
empowered to approve the Midwest Agreement unless it was made in accordance with
the terms of s.180 and s.182(1) of the Act.
[49] As we have already noted, fourteen Cimeco employees voted to approve the
Midwest Agreement on 16 September 2011. Hence, in the usual course, the
agreement would be taken to have been ‘made’ on 16 September 2011. But at the
time the Midwest Agreement was purportedly made four of the Cimeco employees
who voted to approve the agreement did not fall within the area and scope of the
Midwest Agreement as set out in clause 3(a) of that agreement.
[2014] FWCFB 5643
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[50] Counsel for the appellant contended that the task of identifying who will be
covered by the agreement is ‘in a sense a factual exercise’. The four Cimeco
employees employed on the Marandoo Project were included in the vote because at
that time they had been ‘mobilised’ to go to the De Grussa Copper Plant. It was put to
counsel that the expression ‘will be covered’ means those actually falling within the
coverage clause at the time of the vote as opposed to those it was anticipated would be
covered by the agreement on the basis that they had been ‘mobilised’ to perform work
in the region covered by the agreement. Counsel responded to this suggestion in the
following terms:
‘One runs the risk then of an argument that there’s not been a genuine
agreement because you’ve actually excluded people from the voting process,
people that you’ve identified who are going to be because - they’re mobilising.
If you know these people are going to - they will be covered and you exclude
them from the vote, then you run into an argument that the agreement hasn’t
been properly made, there’s no genuine agreement because you’ve excluded a
group of people who are to be covered. Just from a factual point of view, in
our respectful submission, the suggestion which appears to have been taken up
by his Honour that because it was anticipated that at a future point, employees
who were working on other projects, who were employees of this company
working on other projects outside of the area - the fact that at some future point
they are to be deployed, mobilised in and work at Meekatharra - that, in no
way, could affect, in our respectful submission, either of the two questions:
namely, was the group that was geographically distinct fairly chosen and it
would not affect in any way the genuine making of the agreement because all
those persons who had been identified as who would be covered participate in
the agreement-making process.’
[51] We do not find counsel’s submission persuasive. As we have previously
mentioned the expression ‘will be covered by the agreement’ in s.182(1) does not
indicate future likelihood but rather expresses a determinate or necessary consequence.
[52] It follows that the four employees working on the Marandoo agreement were
not entitled to vote to approve the Midwest Agreement because at the time of the vote
they did not fall within the area and scope of the agreement.” [Endnotes omitted]
[Underlining added]
2013 Agreement provisions
[22] Clause 1.2 of the 2013 Agreement provides that the parties intend to achieve its
objectives by, amongst other things, the “[i]ntroduction of a structured training program for
all Employees”.
[23] The coverage and scope clause of the 2013 Agreement is as follows:
“1.3 Coverage & Scope
This Agreement shall apply to all Employees employed by Teys Australia Beenleigh
Pty Ltd who are engaged in stock receival and preparation, production, and cleaning
operations at the Beenleigh plant whose work is covered by the classifications
contained in this agreement.
[2014] FWCFB 5643
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This Agreement does not seek to, nor does it cover, Employees engaged in repair and
maintenance, administrative and clerical, laboratory, first aid, managerial and/or
supervisory work.”
[24] The classifications and minimum wage rates clause in the 2013 Agreement is as
follows:
“3.1 Classifications and Minimum Wage Rates.
Class and
Relativity
to Level 1
Sub-class and
Relativities
Tasks Base
Hourly
min rates
of pay
Full time
Employees
$ per hour
Daily min
rates of pay
Full time
Employees
$ per
7.6 hr day
Daily min
rates of pay
Full time
Employees
$ per
8 hr day
Daily min
rates of pay
Full time
Employees
$ per
9.5 hr day
Daily min
rates of pay
Full time
Employees
$ per
10 hr day
Leve1 1-
100% K1
Fully competent AAO's, A Slaughterers
and Graders and Boners $28.54 $216.90 $228.32 $271.13 $285.40
B1 Fully competent Boners $30.42 $231.19 $243.36 $288.99 $304.20
Leve1 2- K2 - 90%
of K1 Fully competent B Slaughterers $25.69 $195.24 $205.52 $244.05 $256.90
B2 - 93%
of B1
Fully competent Slicers engaged and
permanently classified as such (BC2
or BC2-40) as at the commencement of
this Agreement
$28.29 $215.00 $226.32 $268.75 $282.90
B2.1 -
90% of B1 Fully competent Slicers engaged as
such after the commencement of this
Agreement
$27.38 $208.08 $219.04 $260.11 $273.80
Leve1 2A-
82% of K1 Slaughterers, Slicers and Boners in training,
C Slaughterers
$23.40 $177.84 $187.20 $222.30 $234.00
Leve1 3-
80.07% of
K1
Fully competent Packers, pre-trimmers, tally clerks, chiller
assessors, checking criteria, operating boning room
scales, operating cookers in by-products, cutting and
sawing down carcases, skilled fork lift operators and
scanners in the load out area, Stockpersons.
$22.85 $172.84 $181.92 $216.03 $228.50
Leve1 4-
75% of K1
All other Employees with greater than 12 months service $21.41 $161.95 $170.48 $202.44 $214.10
Level 5-
70% of K1
Following probation up to 12 months service $19.98 $151.84 $159.84 $189.81 $198.80
Leve1 6-
65% of K1 Entry rate - during probation $18.55 $140.98 $148.40 $176.22 $185.50
Night
Cleaners-
N/A
Leading Hand $26.44 $200.94 $211.52 N/A N/A
After 12 months service $23.93 $181.86 $191.44 N/A N/A
Entry rate - during probation $23.53 $178.82 $188.24 N/A N/A ”
[2014] FWCFB 5643
10
[25] The employee classification grading clause in the 2013 Agreement is as follows:
“3.2 Employee Classification Grading
3.2.1 Transitional Arrangements
At the commencement of this Agreement-
Existing skilled Slaughtering Department Employees
All existing permanently classified BKI employees will be classified at Level 1, and
All existing permanently classified BK2 employees will be classified at Level 2 and,
All existing permanently classified BK3 employees will be classified at Level 2A, unless and
until they have the required competencies to progress to Level 1 or Level 2
Existing skilled Boning Department Employees
All existing permanently classified BC 1 Employees will be classified at Level 1, and
All existing permanently classified BC 2 employees will be classified at Level 2
notwithstanding that they may not yet possess the full range of boning or slicing competencies.
3.2.2 Future on-going arrangements
The fundamental premise of this Agreement is that Employees must perform any work as directed
by Teys Aust in accordance with their skill, competence and training and are paid for the work
they perform rather than being permanently classified at a particular level. Notwithstanding this,
an Employee graded and classified at a particular level in accordance with the above structure may
be regarded and reclassified by a relevant supervisor should he or she be under performing, in
terms of the competency, skill, attendance and/or commitment levels expected. Without limiting
an individual Employee's rights, any such downgraded Employee shall have the right to have such
decision reviewed by the JCC.
Skilled Slaughtering Department Employees following the commencement of this Agreement
New Slaughterers to be permanently classified at Level 1 or 2 will have to-
establish and maintain to TA's standards competency in at least three (3) of the following
tasks, and
be responsible for assuring the quality and quantity of their work, and
perform all necessary tasks, incidental to slaughtering.
Slaughterer Level 1 Slaughterer Level 2
Sticking Knocking
Legging Shackling
Flanking Rodding
Operator Hide Puller Hocks and Horns
Fronting Dentition
Operator Splitting Saw Operate Brisket Saw
Neck Boning Bunging
Skilled Boning Department Employees following the commencement of this Agreement
New Boners and Slicers to be permanently classified at Level 1 or 2 will have to -
establish and maintain full competence to bone and/or slice in accordance with TA
requirements, and
be responsible for assuring the quality and quantity of their work, and
perform all necessary tasks, incidental to boning and/or slicing.
Temporary Reclassification of Skilled Employee
In any circumstance where a Level 1 or Level 2 Employee consistently fails to maintain the
required workmanship and competency, Teys Aust reserves the right to temporarily reclassify such
an employee at Level 2A, unless and until the employee has satisfied Teys Aust of his her capacity
to return to Level 1 or 2.
Any disputes about any aspect of these procedures shall be handled in accordance with the disputes
procedure contained in this Agreement, but will also involve the site Training Manager.”
[2014] FWCFB 5643
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[26] The training and training rates of pay clause in the 2013 Agreement is as follows:
“3.4 Training and Training Rates of Pay
All training shall be carried out in accordance with Teys Aust structured training
program and all Employees commit to, and will actively participate in the training
program, as required by Teys Aust and when in training, Employees shall be paid at
either the Level 2A rate of pay or the ordinary rate of pay for the classification in
which the Employee was employed prior to commencing the training, whichever is
the greater. Provided that an Employee cannot be classified at Level 2A for longer
than twelve (12) months unless the failure to gain the required competencies for
progression to Level 1 or Level 2 is clearly the fault of the Employee. Any disputes
about any aspect of these procedures shall be handled in accordance with the disputes
procedure but will also involve the site Training Manager.
Provided that Teys Aust shall be entitled to pay an Employee during any period of an
approved traineeship, at no less than 75% of the Employee's minimum classification
rate as prescribed by sub-clause 3.1 of this Agreement when undertaking off-the job
training during normal working hours and at base ordinary rates of pay when such
training is conducted outside of normal working hours, in respect only to the first
twenty-four (24) hours of off the job training for each trainee.”
[27] The mixed functions clause in the 2013 Agreement is as follows:
“3.7 Mixed Functions
Employees shall perform such tasks or combinations of tasks and/or parts of tasks
whether of the same or different classifications, as Teys Aust may require and any
Employee, who is employed to perform tasks or combinations of tasks in a higher
classification on any day or shift, shall be paid at the higher classification rate for the
actual time worked in performing the tasks of the higher classification.”
[28] Clause 3.11 of the 2013 Agreement refers to the extension of a profit share scheme to
eligible employees covered by the 2013 Agreement, but provides that the scheme may be
amended at Teys’ discretion and is not incorporated as a term of the 2013 Agreement.
Construction of industrial instruments
[29] With respect to the construction of industrial instruments, in Codelfa Construction
Proprietary Limited v State Rail Authority of New South Wales,12 albeit in considering a
contract, Mason J, as he then was, and with whom Stephen, Aickin and Wilson JJ agreed,
stated:
“The true rule is that evidence of surrounding circumstances is admissible to assist in
the interpretation of the contract if the language is ambiguous or susceptible of more
than one meaning. But it is not admissible to contradict the language of the contract
when it has a plain meaning. Generally speaking facts existing when the contract was
made will not be receivable as part of the surrounding circumstances as an aid to
construction, unless they were known to both parties, although, as we have seen, if the
facts are notorious knowledge of them will be presumed.
[2014] FWCFB 5643
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It is here that a difficulty arises with respect to the evidence of prior negotiations.
Obviously the prior negotiations will tend to establish objective background facts
which were known to both parties and the subject matter of the contract. To the extent
to which they have this tendency they are admissible. But in so far as they consist of
statements and actions of the parties which are reflective of their actual intentions and
expectations they are not receivable. The point is that such statements and actions
reveal the terms of the contract which the parties intended or hoped to make. They are
superseded by, and merged in, the contract itself. The object of the parol evidence rule
is to exclude them, the prior oral agreement of the parties being inadmissible in aid of
construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given
to a contractual provision we look, not to the actual intentions, aspirations or
expectations of the parties before or at the time of the contract, except in so far as they
are expressed in the contract, but to the objective framework of facts within which the
contract came into existence, and to the parties' presumed intention in this setting. We
do not take into account the actual intentions of the parties and for the very good
reason that an investigation of those matters would not only be time consuming but it
would also be unrewarding as it would tend to give too much weight to these factors at
the expense of the actual language of the written contract.”13
[30] In Short v F W Hercus Pty Limited,14 Burchett J said:
“… Where the circumstances allow the court to conclude that a clause in an award is the
product of a history, out of which it grew to be adopted in its present form, only a kind
of wilful judicial blindness could lead the court to deny itself the light of that history,
and to prefer to peer unaided at some obscurity in the language. ‘Sometimes’,
McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of
legislation ‘can be discerned only by reference to the history of the legislation and the
state of the law when it was enacted’. Awards must be in the same position.”15
[31] In Kucks v CSR Limited,16 Madgwick J stated:
“It is trite that narrow or pedantic approaches to the interpretation of an award are
misplaced. The search is for the meaning intended by the framer(s) of the document,
bearing in mind that such framer(s) were likely of a practical bent of mind: they may
well have been more concerned with expressing an intention in ways likely to have
been understood in the context of the relevant industry and industrial relations
environment than with legal niceties or jargon. Thus, for example, it is justifiable to
read the award to give effect to its evident purposes, having regard to such context,
despite mere inconsistencies or infelicities of expression which might tend to some
other reading. And meanings which avoid inconvenience or injustice may reasonably
be strained for. For reasons such as these, expressions which have been held in the
case of other instruments to have been used to mean particular things may sensibly and
properly be held to mean something else in the document at hand.
[2014] FWCFB 5643
13
But the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or unusual meaning.”17
[32] In Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others,18 in considering
the construction of commercial documents, the High Court stated:
“It is not the subjective beliefs or understandings of the parties about their rights and
liabilities that govern their contractual relations. What matters is what each party by
words and conduct would have led a reasonable person in the position of the other
party to believe … That, normally, requires consideration not only of the text, but also
of the surrounding circumstances known to the parties, and the purpose and object of
the transaction.”19
[33] In Amcor Limited v Construction, Forestry, Mining and Energy Union and Others,20
Gummow, Hayne and Heydon JJ in considering the term of a collective agreement certified
by the Australian Industrial Relations Commission stated:
“30. Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard
not only to the text of cl 55.1.1, but also to a number of other matters: first, the
other provisions made by cl 55; secondly, the text and operation of the
Agreement both as a whole and by reference to other particular provisions
made by it; and, thirdly, the legislative background against which the
Agreement was made and in which it was to operate.”
[34] In Amcor, Kirby J said
“94. … However, certified agreements such as this commonly lack the precise
drafting of legislation. As appears from a scrutiny of the provisions of the
Agreement, it bears the common hallmarks of colloquial language and a
measure of imprecision. Doubtless this is a result of the background of the
drafters, the circumstances and possibly the urging of the preparation, the
process of negotiation and the omission to hammer out every detail —
including possibly because such an endeavour would endanger the accord
necessary to consensus and certification by the Commission…
96. The nature of the document, the manner of its expression, the context in which
it operated and the industrial purpose it served combine to suggest that the
construction to be given to cl 55.1.1 should not be a strict one but one that
contributes to a sensible industrial outcome such as should be attributed to the
parties who negotiated and executed the Agreement. Approaching the
interpretation of the clause in that way accords with the proper way, adopted
by this Court, of interpreting industrial instruments and especially certified
agreements.” [Footnotes omitted]
[35] His Honour went on to quote with approval the first paragraph in the above passage
from the reasons of Madgwick J in Kucks.
[2014] FWCFB 5643
14
[36] In Amcor, Callinan J after also quoting with approval the first paragraph in the above
passage from the reasons of Madgwick J in Kucks, went on to say:
“131. An industrial agreement has a number of purposes, to settle disputes, to
anticipate and make provision for the resolution of future disputes, to ensure
fair and just treatment of both employer and employees, and generally to
promote harmony in the workplace. It is with the third of these that cl 55 of
the Agreement is particularly concerned. It is important to keep in mind
therefore the desirability of a construction, if it is reasonably available, that
will operate fairly towards both parties…”
[37] In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services
Union,21 French J said:
“57 It is of course necessary, in the construction of an award, to remember, as a
contextual consideration, that it is an award under consideration. Its words
must not be interpreted in a vacuum divorced from industrial realities — City
of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited.
There is a long tradition of generous construction over a strictly literal
approach where industrial awards are concerned — see eg George A Bond &
Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It
may be that this means no more than that courts and tribunals will not make
too much of infelicitous expression in the drafting of an award nor be astute to
discern absurdity or illogicality or apparent inconsistencies. But while
fractured and illogical prose may be met by a generous and liberal approach to
construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense
according to the basic conventions of the English language. They bind
the parties on pain of pecuniary penalties.”22
[38] In Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Prestige
Property Services Pty Ltd,23 Gray J said:
“44 … For present purposes, I am prepared to accept that the construction of an
award can be affected by a common understanding of the parties to it about a
particular state of affairs. If such a common understanding existed when the
award was made, it should not be departed from when the Court comes to
construe the award at a subsequent time. Care must be taken, however, to
distinguish a common understanding from common inadvertence. If the only
reason why the government instrumentality rates were not paid at the Centre
was that neither the union nor the employer adverted to the possibility that
there was an obligation to pay them, no common understanding results. In
order to have an understanding, it is necessary that there be a meeting of
minds, a consensus. There can be no meeting of minds, no consensus, if no-
one has thought about the issue.”24
[2014] FWCFB 5643
15
[39] In Shop Distributive and Allied Employees’ Association v Woolworths Ltd,25
Gray ACJ also said:
“31 Counsel for the applicant contended that the past conduct of the parties could
be relied upon as an aid in the construction of the Certified Agreement. There
is authority that, if a provision has appeared in a series of agreements between
the same parties, and if they can be shown to have conducted themselves
according to a common understanding of the meaning of that provision, then it
can be taken that they have agreed that the term should continue to have the
commonly understood meaning in the current agreement. See Merchant
Service Guild of Australia v Sydney Steam Collier Owners and Coal
Stevedores Assn (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and
257 per Morgan J, and Printing and Kindred Industries Union v Davies Bros
Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the
application of this limited principle, to avoid infringing the general principle
that the conduct of parties to an agreement cannot be taken into account in
construing the agreement. For the limited principle to operate, there must be
clear evidence that the parties have acted upon a common understanding as to
the meaning of the relevant provision and not for other reasons, such as
common inadvertence as to its true meaning”.26
Evidence at first instance
[40] Before the Deputy President evidence in support of the FWC approving the
2013 Agreement was given by:
Mr J. Salter, General Manager Workplace and External Relations for Teys;
Mr D. Archie, Human Resources Manager for Teys;
Ms C. Watt-Dunling, a Trainee Supervisor at Teys;
Mr P. Carle, a Trainee Supervisor at Teys;
Mr M. Garth, a Trainee Supervisor at Teys; and
Mr S. Gee, General Manager Operations for Teys.
[41] Evidence in opposition to the FWC approving the 2013 Agreement was given by:
Mr B. Crawford, Queensland Branch Secretary of the AMIEU;
Mr K. Prange, an employee at Teys;
Mr R. Leigh, an employee at Teys;
Mr G. Wilcox, an employee at Teys;
Mr D. Ludwigsen, an employee at Teys; and
Mr R. Stagg, an employee at Teys.
[2014] FWCFB 5643
16
[42] In her reasons for decision, the Deputy President sets out the evidence about the
21 employees in question, which included the following:
“[23] The evidence establishes that Teys has a formal program conducted over a
period of around 18 months, involving on the job training being provided to production
employees who are identified as having the potential to be engaged as supervisors.
Those employees are designated as Trainee Supervisors, and undertake on the job
training under the supervision of Staff Supervisors.
[24] A relatively lengthy training period is required so that the Trainee Supervisors
can adjust to the requirements of carrying out supervisory tasks and the workforce
adapts to seeing former production workers in a supervisory role. Teys has a policy of
establishing internal career paths, and promoting production workers to supervisory
positions through such programs. There are similar programs in place for production
workers to enable them to increase their skills and obtain classification at higher levels
under the Agreement...
[26] The evidence establishes that Staff Supervisors are employed under a common
law contract of employment, by a different entity to that which employs production
employees - Teys Management Pty Ltd rather than Teys Australia Beenleigh Pty Ltd
which employs production employees. The Staff Supervisors are also paid under a
different fortnightly payroll system. Following their training period, if Trainee
Supervisors are considered to be suitable for a staff appointment, they are offered a
new contract of employment with that entity. Witnesses for Teys also maintain that:
Trainee Supervisors regularly undertake a full range of production work and
cut out employees performing production tasks when they need to take breaks
or fill in during periods when production employees are absent from the
workplace.
Teys has the right to direct Trainee Supervisors to undertake production tasks
at any time and to remove them from the training program.
Trainee Supervisors are informed at the commencement of their training that
they will remain in their substantive classifications under the Agreement are
paid as a minimum rates under the Agreement pertaining to those
classifications and maintain all of the rights associated with continuity of
service under the Agreement, including preference with respect to rosters and
rights in relation to being stood down when this is necessary.
Supervisory tasks undertaken by Trainee Supervisors are performed under the
direction of Staff Supervisors and Trainee Supervisors do not have traditional
supervisor accountability to give formal directions or initiate disciplinary
processes.
Trainee Supervisors have been included in all of the ballots for previous
agreements and have been covered by their terms, with the knowledge and
acceptance of the AMIEU.
[2014] FWCFB 5643
17
Trainee Supervisors participated in an earlier ballot for the Agreement in
February 2013 and in a ballot authorising the AMIEU to make an application
to the Commission for a protected action ballot order.
Some trainee supervisors participated in the protected industrial action taken
following the ballot.
[27] Some of the Trainee Supervisors are paid in excess of the minimum rates they
are entitled to under the Agreement. Where employees who go into the Trainee
Supervisors program are classified at the higher levels in the classification structure,
they maintain their classification rate. Where they are paid at lower levels, they
receive a higher rate than that to which they are entitled. The evidence is that these
employees are paid at higher rates to provide an incentive for them to participate in the
Trainee Supervisors program...
[31] Under cross examination, Mr Garth agreed that his role was primarily
supervisory rather than production and that he monitors and oversees the work of
production workers, and provides assistance to them to undertake tasks correctly.
Mr Gee agreed that Ms Connell, the Trainee Workplace Health and Safety Officer,
was engaged on production tasks 30% of the time, but that other Trainee Supervisors
about whom he gave evidence were engaged for less than that with some doing this
work for as little as 20 to 45 minutes per shift...
[34] There was evidence from witnesses for the AMIEU to the effect that Trainee
Supervisors and Supervisors are viewed by employees as performing the same role
and are required to be treated as such. According to the witnesses for the AMIEU
Trainee Supervisors are responsible for areas such as boning, slicing, packing and
quality assurance. Trainee Supervisors wear blue ‘bump caps’ and carry two way
radios, as do Staff Supervisors. They also carry Supervisors’ books for the purpose of
recording unsatisfactory work on the part of employees.
[35] All Supervisors including Trainee Supervisors have authority to direct
production employees in relation to how to perform their work and to give warnings in
relation to unsatisfactory work and other disciplinary matters. Mr Stagg gave
evidence of being told by a Staff Supervisor that a Trainee Supervisor who was
attempting to discipline a production worker is ‘one of us’ because the Trainee
Supervisor was wearing a blue bump hat. Under cross-examination Mr Stagg agreed
that the employee who was being disciplined ‘pushed back’ in relation to the right of
the Trainee Supervisor to raise performance issues, and a Staff Supervisor then
became involved in the disciplinary process...
[37] AMIEU witnesses also gave evidence in relation to the following employees
voting in the ballot for approval of the Agreement:
An employee acting as a translator assisting Vietnamese speaking employees to
obtain visas, who has a desk and office space in the Administration building;
An employee acting in a temporary HR role;
A Laboratory Technician who has been performing the role for 12 months;
[2014] FWCFB 5643
18
Ms Suzanne Connell, a Workplace Health and Safety Officer;
Persons who are said to have positions in the laboratory; and
New starters who stated that they had received a copy of the Agreement two
days before they voted.
[38] Witnesses for Teys gave evidence about these employees. Ms Thao Nguyen is
acting as a translator assisting employees whose first language is Vietnamese to obtain
visas. Ms Fetalaiga Aunese is on temporary assignment to the HR department acting
in the role of recruitment officer. Ms Nguyen has expressed an interest in an
administrative role if one becomes available but would return to the boning room at
the completion of the temporary role. Ms Aunese went back to the offal room in May
and then resumed in the temporary role. Mr Archie maintained that both employees
have retained their substantive classification under the Agreement and have returned
or will shortly return to that role. Ms Nguyen is classified as a BC3 under the current
Agreement and Ms Aunese is classified as a BK4.
[39] Mr Gee said that Ms Connell is classified as a Cleaner/Leading Hand and is
training to work as a Workplace Health and Safety Officer, but retains her current
classification while being trained. At any point, Ms Connell can be directed to work
in her substantive classification, in contrast with the position with respect to Salaried
Workplace Health and Safety Officers. This is said to be the same situation as that
applicable to Trainee Supervisors. Mr Gee also gave evidence about an employee,
Ms Mannell, who takes swabs and samples of products for testing in the Laboratory
but does not conduct that testing and said that Teys Australia Beenleigh Pty Ltd does
not employ Laboratory Technicians.
[40] Mr Archie said that when employees are given the opportunity to undertake the
Trainee Supervisor role, they do not sign a new contract of employment. Mr Archie
said that both Supervisors and Trainee Supervisors assist production workers on shifts,
Trainee Supervisors are required to do this and Supervisors are not...
[42] Mr Crawford’s evidence was that since his involvement with enterprise
bargaining at Teys Australia plants in 1997, there has never been a proposed
agreement submitted to a ballot of employees without the endorsement of the plant
negotiating committee and the Union. Because of this, agreements have been
approved with healthy majorities, and there has never been a dispute about the
entitlement of any employee to vote...
[44] In relation to the ballot, a number of witnesses for the AMIEU agreed in cross-
examination that they were acting in the capacity of scrutineers in the ballot process,
and at no point during that process raised any objection to persons voting who the
AMIEU now assert are not eligible to vote. Those witnesses also agreed that if they
had seen the owner of Teys, Mr Brad Teys attempt to cast a vote they would have
raised an objection immediately.
[2014] FWCFB 5643
19
[45] The witnesses for the AMIEU were also cross-examined about how they
compiled the list of those employees the Union now asserts were not eligible to vote.
Their evidence was that they held a meeting of AMIEU bargaining representatives
after the ballot and developed a list of those said to be ineligible to vote for approval
of the Agreement.
[46] In submissions made on 9 April 2014, the AMIEU highlighted the following
aspects of the evidence given by witnesses for Teys in the hearing on 27 September
2013:
Mr Salter accepted under cross examination that (1) trainee supervisors are
engaged in a supervisory role; (2) trainee supervisors, interpreter, trainee
WH&S officer and HR recruitment officer are not found under any
classification of the EBA; and (3) there needs to be a connection between the
task performed and the classification under the appropriate industrial
instrument:
Mr Archie accepted under cross examination that (1) both trainee supervisors
and supervisors are in supervisory positions; (2) that interpreter and
recruitment officer positions were not engaged in any production work at the
time of the August ballot; (3) trainee supervisors monitor the performance of
production workers, have an overseeing role of production workers, assist
production workers with their tasks (consistent with the indicia of a
supervisor); and (4) trainee supervisors learn the job by engaging in
supervisory practice: and
Mr Gee accepted under cross examination that (1) trainee foremen/supervisors,
interpreter, trainee WH&S officer and HR recruitment officer are not classified
under the EBA; (2) trainee supervisors are engaged in supervisory work,
learning new tasks, new responsibilities, undertaking certificate vi training and
have been in these position up to 3 years; (3) Danielle Mannell’s job as
laboratory technician is not classified under the EBA and may have been an
oversight by legal eagle people; (4) trainee supervisors are paid at a higher rate
in the classification structure of production workers as a reward for effort and
time put into training in supervisory work; (5) trainee foremen give directions
to production employees, trainee supervisors monitor performance of workers
and oversee workers performance, assist production workers with tasks, and
are primarily engaged in a supervisory role depending on the stage of the
traineeship; and (6) the highest point of a trainee supervisor engaging in
production work was put at 30% of the time, most trainee supervisors do a lot
less than that, between 20 – 45 minutes per shift (a shift being 9½ hours).
[47] In addition to the matters highlighted by the AMIEU, it is also the case
Mr Salter agreed with the proposition that the performance of a Trainee Supervisor
role constitutes a change to the employee’s responsibilities, but qualified his response
by stating that the change was partial. Mr Salter also said that Trainee Supervisors are
training towards progression into salaried positions, but still undertake their usual
production tasks. In response to the proposition that the dominant role for Trainee
Supervisors is primarily supervisory, Mr Salter said that for some it may be but for
some it would be a minority, depending on the circumstances. Mr Salter also said it
[2014] FWCFB 5643
20
was not necessarily the case that production work is a minor part of the work
performed by Trainee Supervisors.
[48] In relation to the submission that Mr Salter agreed that there needs to be a
connection between tasks performed and the classification under the appropriate
industrial instrument, the evidence of Mr Salter given under cross-examination was as
follows:
‘Mr Dalgleish: No. You would agree that there has to be some nexus or
connection between what a person is classified as and the actual work they
perform?---Could you repeat that, please?
You would agree that there's got to be some connection between what you're
classified as an employee and the actual work you perform?---Under the EBA?
Just generally, as a general proposition?---Well, if the question is in respect of
classifying work under the EBA, production work - - -
Yes?--- - - - yes, there obviously has to be a connection between the task
performed and the classification under the appropriate industrial instrument.
I'll put it to you again. It's an absolute absurdity to say that a supervisor does
not supervise?---I disagree.’
[49] Mr Salter also said that the job title of employees changes to Trainee
Supervisor because there are new duties consistent with supervisory practice and there
is a change in status and performance progression.
[50] The AMIEU also drew attention to the evidence of Mr Crawford and invited
further consideration of the assertions in his statement. It was submitted that these
assertions must be accepted because Mr Crawford was not cross-examined. That
evidence can be summarised as follows:
Throughout the 16 years that Mr Crawford has been involved in enterprise
bargaining at Teys, he is not aware of any instance where supervisory staff
have voted on the approval of any proposed agreement.
Mr Crawford has checked all relevant paper based and electronic files and can
find no evidence of discussions about Trainee Supervisors being covered by
the Agreement;
Teys has not discussed the terms and conditions of Trainee Supervisors with
Mr Crawford; and
In emergent circumstances due to absenteeism or for some other unavoidable
reason Trainee Supervisors may perform production work covered by the
enterprise agreement...
[2014] FWCFB 5643
21
[58] Mr Stagg said that in previous ballots for the approval of agreements the
agreements were recommended by the negotiating committee, the AMIEU and the
Company jointly. None of the voting results were close and there had never been
problems raised with whether certain employees like Trainee Supervisors were eligible
to vote. The same situation occurred in February 2013 when the Company put a
proposed agreement to ballot and it was defeated by a significant majority. Because of
the clear cut result there were no disputes at that time about whether any employee
should or should not have voted.
[59] Mr Stagg has been at Teys Beenleigh for 15 years and is a delegate of the
AMIEU. He is also a member of the negotiating committee. Under cross-examination
Mr Stagg said that until the August 2013 ballot, no one has ever suggested that Trainee
Supervisors should not be allowed to vote and that no concern had ever been raised
about this matter before. In response to a question about why no one had ever raised
this issue before, Mr Stagg said: ‘None of the votes have been this close’. In response
to the proposition that he had identified Trainee Supervisors who voted in the ballot,
Mr Stagg said he made a list of ‘blue hats’ who voted.”27 [Endnotes omitted]
[Underlining added]
[43] At the time of the vote on the approval of the 2013 Agreement, two of the employees
in question had been a “Trainee Supervisor” for over three years, one for over two years, and
three for over a year.
[44] The evidence of Mr Gee, General Manager Operations at Teys’ Beenleigh site,
distinguished the role of a “Trainee Supervisor” from that of a production worker.28
[45] He also made it clear that Teys gets the benefit of an employee who is a “Trainee
Supervisor” performing supervisory tasks without them being appointed as a “Supervisor”.
Mr Gee said:
“23. In their role as trainee supervisors, these employees are encouraged to assist
other employees, identify and resolve issues, and they are also encouraged to
make suggestions and directions in relation to production issues... They may
be requested to participate in disciplinary processes, for example to give the
account of what an employee has or has not done in a work situation... In fact
we find that how a trainee supervisor performs in these situations will often be
a good ‘pointer’ to whether they have what it takes to be appointed to a
supervisor role on a staff contract.
24. We have found it useful to carry out the training over a relatively extended
period of time, because in my experience it takes employees a period of time to
adjust to thinking and acting in a supervisory way rather than as a production
employee. To appoint someone directly to a supervisor role and then complete
their training afterwards would not be likely to succeed. This is because the
employees themselves would not have had time to adjust to the experience of
carrying out supervisory tasks, and neither they or the workforce would
naturally see them in that role.”29
[46] Further, Mr Gee pointed out that the time when an employee who is a “Trainee
Supervisor” becomes a “Supervisor” is dependent on there being a relevant vacancy.30
[2014] FWCFB 5643
22
[47] The three employees who are a “Trainee Supervisor” and who were called as
witnesses in the matter gave evidence about the extent of their performance of the work at the
equivalent of the tasks at classifications Level 1 to Level 4 of the 2013 Agreement.
[48] In this regard, Ms Watt-Dunling, a “Trainee Supervisor” said:
“6. ... I still perform the following labouring jobs and skilled tasks from time to
time:
(a) I jump on the frozen manual scales when operators are going on their
breaks. I sometimes do this for 45 minutes or so on any given shift.
(b) On a weekly basis I will spend time putting labels onto cartons.
(c) On a weekly basis I will spend time working on the frozen lidder.
Depending on work-load, I might do this for a full shift.
(d) On a weekly basis I will step up and cut-out an operator who is
performing pre-trim work when they are about to go on a break. When
I am doing this, I have to use my knives and might do this for 15 or
20 minutes.
(e) I will also regularly help the packers physically load boxes using the
hopper and the ‘lazy sue’.
7. The majority of the time I will perform the above tasks when there is a back-
log, a break or there is just simply not enough people to perform the tasks in a
timely way”.31
[49] Mr Carle, a “Trainee Supervisor”, said in this regard that “[o]ver the last 12 months, I
have stepped back into the team on fewer occasions, but still do those tasks from time to
time”.32
[50] Mr Garth, a “Trainee Supervisor” gave evidence that the role of a “Trainee
Supervisor” is primarily a supervisory role, not a production role.33
[51] Mr Salter, the General Manager Workplace and External Relations for Teys, gave
evidence that an employee’s undertaking of the “Trainee Supervisor” role involves a consent
variation to the employee’s employment agreement with Teys.34
[52] Mr Gee’s evidence about the work of the employee who is the “Trainee Workplace
Health and Safety Officer” was that it involves being trained in workplace health and safety
tasks, such as risk management, injury management and workplace inspections; data entry;
and also at any stage, pursuant to a direction, the work of a cleaner leading hand.35
[53] Several of the employees of Teys who are a “Trainee Supervisor” gave evidence that
they considered they were covered by the 2013 Agreement and its predecessors. There was
also evidence that the employees of Teys who are a “Trainee Supervisor” and some of the
other employees in question were included in ballots in respect of the 2013 Agreement and/or
[2014] FWCFB 5643
23
its predecessors and that some of the employees of Teys who are a “Trainee Supervisor” took
part in industrial action towards those enterprise agreements.
Consideration of the appeal
(a) Permission to appeal
[54] In deciding to approve the 2013 Agreement, the Deputy President indicated she was
satisfied that the 2013 Agreement was genuinely agreed to by the employees covered by it.36
[55] In reaching that satisfaction, the Deputy President found that the 21 employees in
question fell within the coverage of the 2013 Agreement at the time of the vote on its
approval.37
[56] In coming to that finding the Deputy President referred to clause 1.3 of the
2013 Agreement.
[57] Clause 1.3 of the 2013 Agreement, which we have set out earlier, provides that the
employees to whom it applies are those employed by Teys who are both:
engaged in stock receival and preparation, production, and cleaning operations at
the Beenleigh plant, and
whose work is covered by the classifications contained in the 2013 Agreement.
[58] In its application to the FWC seeking FWC approval of the 2013 Agreement, Teys
recognised these two aspects of clause 1.3.38
[59] Clause 1.3 of the 2013 Agreement also provides that the 2013 Agreement does not
cover employees engaged in repair and maintenance, administrative and clerical, laboratory,
first aid, managerial and/or supervisory work.
[60] The Deputy President said:
“CONCLUSIONS
[64] ... Clause 1.3 of the Agreement refers to all employees who are ‘engaged’ in
nominated roles, tasks or areas...
[66] In the present case, all of the disputed employees are engaged as production
employees. This is so notwithstanding that they may not be performing the work of
production employees at a particular time. The disputed employees have contracts of
employment as production workers and are entitled to be classified as such under the
Agreement, and to be paid no less than the classification level at which they are
engaged. This is apparent from clause 3.2 of the Agreement which deals extensively
with the grading and classification of employees and their rights arising from
engagement at particular levels.
[2014] FWCFB 5643
24
[67] There is no evidence that the contracts of employment of these employees as
production workers were terminated upon them acting in Trainee Supervisor or other
roles. I also do not accept that the Trainee Supervisor roles are so substantially
different that the effect was to terminate the contracts of employment of those
employees and replace it with a new contract. That is certainly not consistent with the
views and understanding of the persons in those roles.
[68] The fact that production employees who are covered by the Agreement may be
provided with a training opportunity as a Trainee Supervisor… does not remove them
from the coverage of the Agreement. They are and at all times while performing the
role of Trainee Supervisor, continue to be production employees in accordance with
the terms of their engagement by Teys…
[69] The fact that there is no classification for Trainee Supervisors in the
Agreement does not result in the Agreement not covering production workers
undertaking this role. Section 256A of the Act does not require that there is a specific
classification in an enterprise agreement that describes the tasks being undertaken by a
particular employee. What is required is that, without limiting the way a class of
employee is described, that the class is described, such that it is capable of
identification.
[70] The Agreement in the present case describes production workers and it does so
by a combination of descriptions of the kind of work, the type of employment and the
classification, job level or grade and a requirement that employees be engaged to
perform the designated work or role. Trainee Supervisors have a substantive contract
of employment under which they are engaged as production workers, classified in
accordance with the work they are engaged to perform.
[71] I remain of the view that employees paid and classified as production workers
at various levels of the Agreement can be temporarily assigned to perform incidental
tasks such as assisting co-workers from non-English speaking backgrounds, at the
behest of Teys, by interpreting for those co-workers, or to perform office work. The
evidence is that the employees engaged in these temporary assignments have now
returned to their roles as production workers or will do so during the term of the
Agreement. That does not change the fact that they are and continue to be covered by
the Agreement while performing the temporary assignment...
[73] A temporary redeployment does not change the employee’s substantive
engagement, particularly in circumstances where the employee can at any time, at the
discretion of Teys, be required to perform production work...
[74] The question of whether an instrument covers an employee requires more than
a quantitative assessment of the time spent carrying out various duties. What is
determinative is the circumstances in which the person is employed and the principle
purpose of the employment. In the present case, the Trainee Supervisors, interpreters
and persons being trained to undertake quality control or workplace health and safety,
are principally employed as production workers, and Teys has the right at any time to
return them to such roles...
[2014] FWCFB 5643
25
[77] ... If the principal purpose of the employment of Trainee Supervisors is
considered, then it is apparent that they are at all times principally engaged as
production workers. That is the basis of their engagement and it does not change
because they undertake a role as Trainee Supervisors.
[78] The language of clause 1.3 of the Agreement does not require that employees
be classified in a particular classification. Rather it indicates that the work that they
are engaged to perform must be covered by the classifications in the Agreement. On
the evidence before me, that is the case with respect to Trainee Supervisors, regardless
of the amount of time that they spend performing that work...
[81] I am also of the view that applying the same approach, a trainee WHS Officer
is covered by the Agreement on the basis that she was engaged to undertake
production work. Similarly the production sample collector (Ms Mannell), is engaged
as a production employee. Mr Gee's evidence established that Ms Mannell does not
perform laboratory work and that she also performed production work in the packing
and bagging area. I am satisfied that Ms Mannell is covered by the Agreement on the
basis that she was principally engaged as a production worker.
[82] I do not accept that the two employees who have been temporarily redeployed
to the HR Department are not covered by the Agreement. Both employees are
engaged as production workers and do not cease to be so engaged by virtue of their
temporary roles. The fact that an employee who speaks a particular language engaged
as a production worker, is relieved from production duties to assist other production
workers to obtain a visa, does not remove that employee from coverage under an
agreement expressed to cover persons engaged as production workers. Similarly the
employee acting the HR role is production employee and engaged as such. That the
employee is temporarily not performing production duties, is not determinative of the
coverage of the Agreement.” [Endnotes omitted] [Underling added]
[61] We think the Deputy President’s reasoning, as set out above, is affected by appealable
error.
[62] The Deputy President does not deal with the criteria or all of the criteria in clause 1.3
of the 2013 Agreement in considering whether the employees in question were employees
who “will be covered” by the 2013 Agreement. The criteria in clause 1.3 include that the
employees “are engaged in stock receival and preparation, production, and cleaning
operations” and their “work is covered by the classifications contained in [the 2013
Agreement]”. The Deputy President, however, found that the employees in question fell
within the coverage of the 2013 Agreement at the time of the vote by reference to other
criteria not found in clause 1.3, such as that they are “engaged as production workers” and
“have contracts of employment as production workers and are entitled to be classified as such
under the [2013] Agreement”.39
[63] This erroneous approach flows throughout the Deputy President’s reasoning, also
being evidenced at paragraphs [68], [70], [73], [74], [77], [78], [81] and [82] of the conclusion
to her decision.
[2014] FWCFB 5643
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[64] Further, the Deputy President fails to recognise the extent of the change to the work of
the employees in question on them becoming a “Trainee Supervisor”, the “Trainee Workplace
Health and Safety Officer”, the “Vietnamese translator” or “the employee acting in a ‘HR’
role”.
[65] For example, the Deputy President says that she “does not accept that the Trainee
Supervisor roles are so substantially different that the effect was to terminate the contracts of
employment of those employees and replace it with a new contact”. However, the evidence
of Mr Salter, the General Manager Workplace and External Relations for Teys, was that an
employee’s undertaking of the role of the “Trainee Supervisor” involves a consent variation to
the employee’s employment agreement with Teys.
[66] The Deputy President also says that “employees ... classified as production workers at
various levels of the [2013] Agreement can be temporarily assigned to perform incidental
tasks such as assisting co-workers from non-English speaking backgrounds, at the behest of
Teys, by interpreting for those co-workers, or to perform office work.” However, we do not
think that on the evidence before her it was open to the Deputy President to regard the tasks as
incidental. The evidence included that the tasks involved at least a month of full-time
employment away from “stock receival and preparation, production, and cleaning operations”.
[67] The errors in the Deputy President’s reasoning were critical to her finding that the
21 employees in question fell within the coverage of the 2013 Agreement at the time of the
vote on its approval and her satisfaction that the 2013 Agreement was genuinely agreed to by
the employees covered by it. The errors were, therefore, critical to her decision to approve the
2013 Agreement.
[68] In these circumstances, we grant permission to appeal. We turn to consider whether at
the time of the vote on the approval of the 2013 Agreement the 21 employees in question
were employees who “will be covered” by the 2013 Agreement and thereby entitled to vote
on its approval. We can then consider whether the 2013 Agreement was genuinely agreed to
by the employees covered by it and whether it should have been approved by the FWC. We
do this bearing in mind the meaning given in Cimeco to the expression “will be covered”.
(b) Work covered by the classifications
[69] Clause 1.3 of the 2013 Agreement specifies who is covered by it. For an employee to
be covered by the 2013 Agreement they must meet all of the criteria in clause 1.3, including
that their “work is covered by the classifications contained in the 2013 Agreement”.
[70] The classifications contained in the 2013 Agreement are set out in its clause 3.1.
Clause 3.1 provides for the classifications of Level 1 to 6, with Level 1 being the highest paid
and Level 6 the lowest paid, and a Night Cleaners classification.
[71] The tasks at each level are also set out in clause 3.1. The tasks at Level 1 include
“Fully competent A Slaughterers” and “Fully competent Boners”, at Level 2 include “Fully
competent B Slaughterers” and “Fully competent Slicers”, at Level 2A include “Slaughterers,
Slicers and Boners in training” and at Level 3 include “Fully competent Packers”. The
Level 4 tasks are “All other Employees with greater than 12 months service”, the Level 5
tasks are “Following probation up to 12 months service” and the Level 6 tasks are “Entry rate
[2014] FWCFB 5643
27
- during probation”. The tasks in the Night Cleaners classification are “Leading Hand”,
“After 12 months service” and “Entry rate - during probation”.
[72] Levels 1 to 3 are the skilled classifications and Levels 4 to 6 are the unskilled
classifications. The work at the Level 4 classification includes labouring and general process
work.40
[73] Clause 3.2 of the 2013 Agreement sets out how some existing slaughterers, slicers,
boners and graders will transition to the classifications in the 2013 Agreement and how new
slaughterers, slicers and boners will be classified under the 2013 Agreement. It also provides
that a fundamental premise of the 2013 Agreement is that employees to whom the
2013 Agreement applies “must perform any work as directed by Teys Aust in accordance
with their skill, competence and training and are paid for the work they perform rather than
being permanently classified at a particular level.”
[74] Clause 3.4 of the 2013 Agreement provides that the employees to whom the
2013 Agreement applies must commit to and actively participate in the Teys’ structured
training program as required by Teys. We think that the structured training program covered
by clause 3.4 of the 2013 Agreement only concerns training in the tasks at Level 1 or Level 2
in the 2013 Agreement, being slaughterers, slicers, boners, graders and AAO’s (Aquis
Authorised Officers). The structured training program covered by clause 3.4 does not extend
to training in the tasks in the other classification levels in the 2013 Agreement or
classifications not covered by the 2013 Agreement.
[75] This is apparent from the fact that clause 3.4 provides for an employee when in
training in the structured training program covered by clause 3.4 to be paid at no less than the
Level 2A rate of pay, and to be classified at Level 2A for no longer than 12 months unless the
failure to gain the required competencies for progression to Level 1 or Level 2 is clearly the
employee’s fault. Level 2A covers the tasks of “Slaughterers, Slicers and Boners in training”.
[76] The provision in clause 3.4 for an employee when in training in the structured training
program to be paid at “the ordinary rate of pay for the classification in which the Employee
was employed prior to commencing the training” if higher than the Level 2A rate of pay,
caters for those employed at Levels 1 or 2 prior to commencing the training and who are
training in the tasks at Level 1 or Level 2. Such as a “Fully competent Slicer” who is training
to become a “Fully competent Boner”.41 This is apparent from the fact that “Ordinary pay”,
“Ordinary Time” or “Ordinary Rate” is defined in clause 1.8 of the 2013 Agreement as
meaning “the relevant base ordinary hourly rates of pay as contained in sub-clause 3.1 of this
Agreement.” The only “base ordinary hourly rates of pay” in clause 3.1 of the
2013 Agreement which are higher than the Level 2A rate of pay are the Level 1 and Level 2
rates of pay. Clause 4.6 of the 2013 Agreement advises that the Night Cleaners base ordinary
hourly rates of pay in clause 3.1 of the 2013 Agreement contain a 30% shift loading for the
nature of fixed night shift work.
[77] Further, it is unlikely the structured training program covered by clause 3.4 extends to
training in the tasks at Levels 3 to 6. This is because, pursuant to clause 3.4, employees
undertaking the training in the tasks in Levels 3 to 6 would be paid at the Level 2A rate of pay
whilst in the training, which is more than the rates of pay in clause 3.1 for classifications
Levels 3 to 6. There was little before the FWC on the training at Levels 3 to 6.
[2014] FWCFB 5643
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[78] Clause 3.7 of the 2013 Agreement concerning “Mixed Functions” provides that an
employee to whom the 2013 Agreement applies who performs tasks or combinations of tasks
in a higher classification on any day or shift is to be paid at the higher classification rate for
the actual time worked in performing the tasks of the higher classification. We think this only
concerns the tasks in the classifications in clause 3.1. This is because clause 3.7 refers to the
employee being paid at the rate for the tasks in the higher classification and only the tasks in
the classifications in clause 3.1 have a rate of pay specified in the 2013 Agreement.
(c) Trainee Supervisor
[79] For the 2013 Agreement to apply to an employee of Teys, then pursuant to clause 1.3
their work must be covered by the classifications contained in the 2013 Agreement. It is self
evident that the 2013 Agreement does not include a classification entitled “Trainee
Supervisor” or a classification with tasks entitled “Trainee Supervisor”. However, that is not
the end of the matter.
[80] On the evidence, which we have earlier set out, it is apparent that the work of an
employee of Teys who was a “Trainee Supervisor” at the time of the vote on the approval of
the 2013 Agreement involved work performed in supervisory tasks, albeit under the direction
and supervision of a salaried staff position and without the authority and responsibility that
attaches to a salaried staff supervisor position, and work performed in the then equivalent of
the tasks at classifications Levels 1 to 4 of the 2013 Agreement.
[81] However, when the totality of the relevant evidence is considered, including the
evidence of the three employees who are a “Trainee Supervisor” and who were called as
witnesses, it is apparent that the work such an employee performed in the then equivalent of
the tasks at classifications Levels 1 to 4 of the 2013 Agreement was quite limited, compared
to the work they performed in the supervisory tasks.
[82] This is a product of the training they were doing as a “Trainee Supervisor”. They
were trained to become a “Supervisor” by doing supervisory tasks, albeit under direction and
supervision and without the authority and responsibility attaching to a “Supervisor”. As
Mr Gee said, Teys carries out their training over a relatively extended period of time because
it takes the employees time to adjust to thinking and acting in a “supervisory way” and if they
appointed someone directly to a supervisor role and they completed their training afterwards it
would not be likely to succeed as they “would not have had time to adjust to the experience of
carrying out supervisory tasks”.42
[83] We note that a salaried staff supervisor is also required to do other work as directed by
their manager.43
[84] In determining whether the work of an employee who was a “Trainee Supervisor” at
the time of the vote is covered by the classifications contained in the 2013 Agreement more
than part of that work needs to be considered.
[2014] FWCFB 5643
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[85] In Brand v APIR Systems Limited,44 a Full Bench of the Australian Industrial Relations
Commission pointed out the following:
“[12] Much of the argument advanced on Mr Brand's behalf in the appeal was
directed at whether his employment was within the incidence of the award. As we have
indicated above, even if his employment was within the incidence of the award, his
application was not within jurisdiction unless he was employed in one of the award
classifications.
[13] We note that the Commissioner adopted and applied a test based on the
principal purpose for which the applicant was employed. She relied upon the Full
Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect.
(PR925731 at para [9]). An analysis of the authorities referred to in that case shows
that industrial courts and tribunals have at different times adopted different
formulations of the test to be applied in determining whether the work of an employee
or group of employees is within a particular occupation or classification. One
formulation requires that the question should be decided by reference to the major and
substantial employment of the employee (Ware and O'Donnell Griffin (Television
Services) Pty Ltd [1971] AR (NSW) 18). Another formulation requires that the
principal purpose or purposes of the employment be identified (Merchant Service
Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99 at 101-2). In some
cases the formulations have both been referred to (Comdox (No. 272) Pty Ltd t/as
Ronald Stead Golf v Dawson (1993) 49 IR 458 at 462; Logan v Otis Elevator Co Pty
Ltd, Unreported, Industrial Relations Court of Australia (Moore J) 20 June 1997). In
one case a Full Bench of the Commission held that the principal purpose formulation
was a refinement of the major and substantial employment formulation (Re The
Australian Workers' Union Construction, Maintenance and Services
(WA Government) Award 1987 1991/12 CAR 68 at 72). A Full Court of the Federal
Court of Australia, without reference to other authorities, adopted a test based on
whether the employees were ‘engaged substantially’ in the duties of the relevant
occupation (Federated Tobacco Workers Union of Australia v Amalgamated Metal
Workers Union and another (1988) 29 IR 263 at 275).
[14] In this appeal both parties accepted that the ‘principal purpose’ formulation as
stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are
content to decide this application on that basis. We should add, however, that we are
satisfied that whichever of the formulations referred to might be applied, in this case
the result would be the same.”
[86] In Brand and each of the cases cited in this extract from Brand, whether it is a
“principal purpose”, “major and substantial” or “engaged substantially” formulation that is
adopted, it is the work of the employee that is considered relevant in that regard.
[87] On any of the formulations set out in Brand, it is apparent that the work of an
employee who was a “Trainee Supervisor” at the time of the vote is not work covered by the
classifications contained in the 2013 Agreement. The major and substantial part of the work
of an employee who was a “Trainee Supervisor” at the time of the vote, or the principal
purpose of their work, or the work on which such an employee was engaged substantially was
the aforementioned supervisory tasks. It was not the tasks at classifications Levels 1 to 6 or
the Night Cleaners classification contained in the 2013 Agreement.
https://www.fwc.gov.au/documents/alldocuments/PR938031.htm#P138_16162
https://www.fwc.gov.au/documents/alldocuments/PR938031.htm#P138_16162
[2014] FWCFB 5643
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[88] The major and substantial part of the work of an employee who was a “Trainee
Supervisor” at the time of the vote, or the principle purpose of their work, or the work on
which such an employee was engaged substantially is beyond the tasks at classifications Level
1 and Level 2 of the 2013 Agreement. It was not suggested, nor realistically could it be
suggested, that this work of an employee who was a “Trainee Supervisor” at the time of the
vote is covered by classification Level 2A “Slaughterers, Slicers and Boners in training” and
“C Slaughterers”. Nor could it be suggested that this work of an employee who was a
“Trainee Supervisor” at the time of the vote is covered by classifications Levels 3 to 6 or the
Night Cleaners classification, given the tasks and attendant wage rates at those levels and in
that classification.
[89] As set out in clause 3.1 of the 2013 Agreement, the tasks at classifications Level 1 and
Level 2 are confined to Fully competent AAO’s, A Slaughterers and Graders and Boners,
Fully competent Boners, Fully competent B Slaughterers and Fully competent Slicers. There
is no reliable evidence that those tasks extend to, embrace or cover the supervisory tasks of an
employee who was a “Trainee Supervisor” at the time of the vote. Indeed, the detail of the
Level 1 and Level 2 Slaughterers’ tasks in clause 3.2.2 of the 2013 Agreement supports the
conclusion that the tasks at classifications Level 1 and Level 2 of the 2013 Agreement do not
extend to, embrace or cover the supervisory tasks of an employee who was a “Trainee
Supervisor” at the time of the vote. There is also no reliable evidence that the tasks at Levels
2A to 6 and for the Night Cleaners classification, as set out in clause 3.1 of the
2013 Agreement, so extend, embrace or cover.
[90] While the aforementioned supervisory tasks of an employee who was a “Trainee
Supervisor” at the time of the vote are said to be training, for the reasons we have given the
“Training and Training Rates of Pay” clause at clause 3.4 of the 2013 Agreement does not
bring such training or those supervisory tasks within the tasks at classifications Levels 1 to 6
or the Night Cleaners classification. Clause 3.4 does not extend to, embrace or cover such
training or those supervisory tasks, rather it covers training in the tasks at classifications
Level 1 or Level 2 of the 2013 Agreement.
[91] We think the fact that there is nothing in the 2013 Agreement which specifies the rate
of pay to which a “Trainee Supervisor” is entitled under the 2013 Agreement, or the rate of
pay for the work of a “Trainee Supervisor”, however the employee performing that work is
titled, also supports the conclusion that the work of an employee who was a “Trainee
Supervisor” at the time of the vote is not covered by the classifications contained in the 2013
Agreement. For example, from clause 3.1 of the 2013 Agreement it is evident that the rate of
pay for fully competent boning work is that at classification Level 1 (B1). However, it is not
evident what the rate of pay under clause 3.1 is for the combination of supervisory tasks and,
from time to time, other tasks performed by a “Trainee Supervisor”.
[92] The absence of a written contract of employment for an employee who was a “Trainee
Supervisor” at the time of the vote does not preclude them being covered by an oral contract
as a “Trainee Supervisor”, containing the terms and conditions advised to them. Indeed,
Mr Slater’s evidence was that an employee’s undertaking of the “Trainee Supervisor” role
involves a consent variation to the employee’s employment agreement with Teys.
[93] We also note that there was no evidence that any employee who was a “Trainee
Supervisor” at the time of the vote had a date on which they would return to performing solely
the tasks at classifications Levels 1 to 4 in the 2013 Agreement.
[2014] FWCFB 5643
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[94] The terms of the “Employee Classification Grading” clause at clause 3.2 of the
2013 Agreement do not undermine the conclusion that the work of the employee who was a
“Trainee Supervisor” at the time of the vote is not covered by the classifications contained in
the 2013 Agreement. Its terms do not serve to extend the tasks in classifications Levels 1 to 6
or the Night Cleaners classification to cover the work of an employee who was a “Trainee
Supervisor” at the time of the vote. As we have mentioned, the terms of clause 3.2.2 of the
2013 Agreement support the conclusion that the tasks at Level 1 and Level 2 of the 2013
Agreement do not extend to, embrace or cover the supervisory tasks of an employee who was
a “Trainee Supervisor” at the time of the vote.
[95] Nor do the terms of the “Mixed Functions” clause at clause 3.7 of the 2013 Agreement
undermine the conclusion that the work of an employee who was a “Trainee Supervisor” at
the time of the vote is not covered by the classifications contained in the 2013 Agreement. As
we have indicated, clause 3.7 only concerns the classifications in clause 3.1 of the 2013
Agreement and the tasks of those classifications.
[96] In summary, while the employees employed by Teys as a “Trainee Supervisor” at the
time of the vote might have been “engaged in stock receival and preparation, production, and
cleaning operations at the Beenleigh plant”, their work was not covered by the
classifications contained in the 2013 Agreement.
[97] Since the work of an employee of Teys who was a “Trainee Supervisor” at the time of
the vote is not covered by the classifications contained in the 2013 Agreement, the employees
of Teys who were a “Trainee Supervisor” at the time of the vote were not employees who
“will be covered” by the 2013 Agreement at the time of the vote. The specific exclusion of
employees engaged in “supervisory work” from the coverage of the 2013 Agreement, as set
out in its clause 1.3, also supports such a conclusion. As a result, the employees of Teys who
were a “Trainee Supervisor” at the time of the vote on the approval of the 2013 Agreement
were not entitled to vote on the approval of the 2013 Agreement.
(d) Trainee Workplace Health and Safety Officer
[98] Again, it is self evident that the 2013 Agreement does not include a classification
entitled “Trainee Workplace Health and Safety Officer” or a classification with tasks entitled
“Trainee Workplace Health and Safety Officer”. However, again, that is not the end of the
matter.
[99] The work of the employee of Teys who was the “Trainee Workplace Health and
Safety Officer” at the time of the vote on the approval of the 2013 Agreement involved being
trained in workplace health and safety tasks, such as risk management, injury management
and workplace inspections; data entry; and also at any stage, pursuant to a direction, the work
of a cleaner leading hand. The major and substantial part or principal purpose of the work of
the employee who was the “Trainee Workplace Health and Safety Officer” at the time of the
vote, or the work on which the employee who was the “Trainee Workplace Health and Safety
Officer” at the time of the vote was engaged substantially, was being trained in workplace
health and safety tasks, and data entry. It was not the tasks at classifications Levels 1 to 6 or
the Night Cleaners classification contained in the 2013 Agreement.
[2014] FWCFB 5643
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[100] This work of the employee who was the “Trainee Workplace Health and Safety
Officer” at the time of the vote is beyond the tasks at classifications Levels 1 to 6 and the
Night Cleaners classification contained in the 2013 Agreement. As set out in clause 3.1 of the
2013 Agreement, the tasks in the classifications contained in the 2013 Agreement are
confined to those specified in the clause. There is no reliable evidence that the tasks extend
to, embrace or cover the training in workplace health and safety tasks, and data entry of the
employee who was the “Trainee Workplace Health and Safety Officer” at the time of the vote.
[101] Further, for the reasons we have earlier given, clause 3.4 of the 2013 Agreement
concerning “Training and Training Rates of Pay” does not bring the being trained in
workplace health and safety tasks within the tasks at classifications Levels 1 to 6 or the Night
Cleaners classification. Clause 3.4 does not extend to, embrace or cover such training, rather
it covers training in the tasks at classifications Level 1 or Level 2 of the 2013 Agreement.
[102] As a result, the work of the employee who was the “Trainee Workplace Health and
Safety Officer” at the time of the vote is not covered by the classifications contained in the
2013 Agreement.
[103] We think the fact that there is nothing in the 2013 Agreement which specifies the rate
of pay to which the “Trainee Workplace Health and Safety Officer” is entitled under the 2013
Agreement, or the rate of pay for the work of the “Trainee Workplace Health and Safety
Officer”, however the employee performing that work is titled, also supports the conclusion
that the work of the employee who was the “Trainee Workplace Health and Safety Officer” at
the time of the vote is not covered by the classifications contained in the 2013 Agreement.
[104] The absence of a written contract of employment for the employee who was the
“Trainee Workplace Health and Safety Officer” at the time of the vote does not preclude such
an employee being covered by an oral contract as the “Trainee Workplace Health and Safety
Officer”, containing the terms and conditions advised to the employee.
[105] There was no evidence that the employee who was the “Trainee Workplace Health and
Safety Officer” at the time of the vote had a date on which she would return to performing
solely the tasks at classifications Levels 1 to 6 or the Night Cleaners classification in the
2013 Agreement.
[106] The terms of the “Employee Classification Grading” clause at clause 3.2 of the
2013 Agreement do not undermine the conclusion that the work of the employee who was the
“Trainee Workplace Health and Safety Officer” at the time of the vote is not covered by the
classifications contained in the 2013 Agreement. Its terms do not serve to extend the tasks in
classifications Levels 1 to 6 or the Night Cleaners classification to cover the work of the
employee who was the “Trainee Workplace Health and Safety Officer” at the time of the vote.
[107] Nor, for reasons we have earlier set out, do the terms of the “Mixed Functions” clause
at clause 3.7 of the 2013 Agreement undermine the conclusion that the work of the employee
who was the “Trainee Workplace Health and Safety Officer” is not covered by classifications
contained in the 2013 Agreement.
[2014] FWCFB 5643
33
[108] In summary, while the employee employed by Teys as the “Trainee Workplace Health
and Safety Officer” at the time of the vote might have been “engaged in stock receival and
preparation, production, and cleaning operations at the Beenleigh plant”, their work was not
covered by the classifications contained in the 2013 Agreement.
[109] Since the work of the employee of Teys who was the “Trainee Workplace Heath and
Safety Officer” at the time of the vote is not covered by the classifications contained in the
2013 Agreement, the employee of Teys who was the “Trainee Workplace Health and Safety
Officer” at the time of the vote was not an employee who “will be covered” by the 2013
Agreement at the time of the vote. Therefore, the employee of Teys who was the “Trainee
Workplace Health and Safety Officer” at the time of the vote on the approval of the 2013
Agreement was not entitled to vote on the approval of the 2013 Agreement.
[110] The specific exclusion of employees engaged in administrative and clerical, first aid
and/or managerial work from the coverage of the 2013 Agreement, as set out in clause 1.3,
probably also supports this conclusion.
(e) Other employees
[111] The work of the employee who was the “Vietnamese translator” at the time of the vote
on the approval of the 2013 Agreement involved assisting employees whose first language is
Vietnamese to obtain visas. At the time of the vote to approve the 2013 Agreement, this work
was being performed by the relevant employee on a full-time basis and had been so performed
for several months leading up to the ballot on the approval of the 2013 Agreement.
[112] The work of the employee of Teys who was the “employee acting in a ‘HR’ role” at
the time of the vote on the approval of the 2013 Agreement involved being a recruitment
officer. At the time of the vote to approve the 2013 Agreement, this work was being
performed by the relevant employee on a full-time basis and had been so performed for at
least a month leading up to the ballot on the approval of the 2013 Agreement.
[113] This work of the employee who was the “Vietnamese translator” and the employee
who was the “employee acting in a ‘HR’ role” at the time of the vote is not work covered by
the classifications contained in the 2013 Agreement, in that it is not within the tasks of the
classifications contained in the 2013 Agreement.
[114] For similar reasons to those we have earlier given in respect of an employee who was
a “Trainee Supervisor” and the employee who was the “Trainee Workplace Health and Safety
Officer” at the time of the vote, clauses 3.2, 3.4 and 3.7 of the 2013 Agreement do not affect
this conclusion.
[115] Again, supporting this conclusion is the fact that there is nothing in the 2013
Agreement which specifies the rate of pay to which either the “Vietnamese translator” or the
“employee acting in a ‘HR’ role” is entitled under the 2013 Agreement, or the rate of pay for
the work of the “Vietnamese translator” or the “employee acting in a ‘HR’ role”, however the
employees performing that work are titled.
[2014] FWCFB 5643
34
[116] Further, the absence of a written contract of employment for the employee who was
the “Vietnamese translator” or the employee who was the “employee acting in a ‘HR’ role” at
the time of the vote does not preclude them being covered by an oral contract as the
“Vietnamese translator” or the “employee acting in a ‘HR’ role”, containing the terms and
conditions advised to them.
[117] As the work of the employee of Teys who was the “Vietnamese translator” and the
work of the employee of Teys who was the “employee acting in a ‘HR’ role” at the time of
the vote is not covered by the classifications contained in the 2013 Agreement, the employees
of Teys who were the “Vietnamese translator” or the “employee acting in a ‘HR’ role” at the
time of the vote were not employees who “will be covered” by the 2013 Agreement at the
time of the vote. Consequently, the employees of Teys who were the “Vietnamese translator”
or the “employee acting in a ‘HR’ role” at the time of the vote on the approval of 2013
Agreement were not entitled to vote on the approval.
[118] The specific exclusion in clause 1.3 of the 2013 Agreement of employees engaged in
administrative and clerical work from the coverage of the 2013 Agreement probably also
excluded the employees of Teys who were the “Vietnamese translator” or the “employee
acting in a ‘HR’ role” from being employees who “will be covered” by the 2013 Agreement
at the time of the vote and precluded them from being entitled to vote in the ballot on the
approval of the 2013 Agreement.
[119] The work of the “Production Sample Collector” involves taking swab tests and
samples of products and associated paperwork to the on-site laboratory and helping out in the
frozen packing and bagging areas. There is insufficient evidence to conclude as to the major
and substantial part or the principal purpose of the work of the “Production Sample
Collector”, or the work on which the “Production Sample Collector” is engaged substantially,
and therefore whether the work of such an employee is covered by the classifications
contained in the 2013 Agreement.
(f) Quashing of the decisions
[120] We appreciate that some Teys’ employees believe a “Trainee Supervisor” is and has
been covered by the 2013 Agreement and its predecessors. We also appreciate that
employees of Teys who were a “Trainee Supervisor” and some of the other employees in
question at the time of the vote were included in ballots in respect of the 2013 Agreement
and/or its predecessors, and that some of the employees of Teys who were a “Trainee
Supervisor” at the time of the vote took part in industrial action in support of reaching those
enterprise agreements. However, there was also evidence from others involved in the
negotiation of the enterprise agreements to the effect that until after the conclusion of the
ballot in respect of the 2013 Agreement there was inadvertence as to whether a “Trainee
Supervisor” is covered by the enterprise agreements or was involved in the processes leading
to them, and evidence that a “Trainee Supervisor” does not come under any of the
classifications contained in the 2013 Agreement.
[121] In the circumstances, we think the approach we have adopted to the construction of the
relevant terms in the 2013 Agreement, and the application of the facts to that construction, is
the most appropriate.
[2014] FWCFB 5643
35
[122] Notwithstanding the fact that the employees of Teys who were a “Trainee Supervisor”,
the “Trainee Workplace Health and Safety Officer”, the “Vietnamese translator” and the
“employee acting in a ‘HR’ role” at the time of the vote on the approval of the 2013
Agreement were not employees who “will be covered” by the 2013 Agreement at the time of
the vote, and thereby not entitled to vote on the approval of the 2013 Agreement, they were
included on the roll of voters who could vote on the approval of the 2013 Agreement. It is not
in dispute that some of the 17 employees who were a “Trainee Supervisor” at the time of the
vote actually voted in the ballot on the approval of the 2013 Agreement and that all of them
may have voted.45 Accordingly, the outcome of the ballot may have been different if those
who were not employees who “will be covered” by the 2013 Agreement at the time of the
vote had not voted in the ballot, there being 359 employees who voted to approve the 2013
Agreement and 343 employees who voted against its approval.
[123] On this basis, the FWC could not have been satisfied, in accordance with ss188(2)(b)
or (c) of the FW Act, that the 2013 Agreement was made in accordance with s.182(1) or that
there were no other reasonable grounds for believing the 2013 Agreement had not been
genuinely agreed to by the employees covered by it. In addition, as a result the FWC could
not have been satisfied the 2013 Agreement had been genuinely agreed to by the employees
covered by it as required by s.186(2)(a) of the FW Act.
[124] Further, on this basis we are not satisfied the 2013 Agreement was made in accordance
with s.182(1) of the FW Act or that there are no other reasonable grounds for believing the
2013 Agreement has not been genuinely agreed to by the employees covered by it. In
addition, as a result we are not satisfied the 2013 Agreement has been genuinely agreed to by
the employees covered by it.
[125] As the FWC’s satisfaction in respect of the matters in ss.188(2)(b) and (c) and
s.186(2)(a) of the FW Act is required for the FWC to approve the 2013 Agreement, we quash
the decisions of the Deputy President approving the 2013 Agreement. An order46 to that
effect is being issued at the same time as this decision.
[126] That leaves the issue of whether we should approve the 2013 Agreement having
regard to the provisions of s.190 of the FW Act. We turn to consider that issue.
Conclusion
[127] Section 190 of the FW Act provides that the FWC may approve an enterprise
agreement with undertakings. Section 190 states as follows:
“190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been
made under section 185; and
(b) the FWC has a concern that the agreement does not meet the
requirements set out in sections 186 and 187.
[2014] FWCFB 5643
36
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is
satisfied that an undertaking accepted by the FWC under subsection (3) of this
section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers
covered by the agreement if the FWC is satisfied that the effect of accepting
the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement;
or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC
has sought the views of each person who the FWC knows is a bargaining
representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of
undertakings that are prescribed by the regulations.”
[128] Our concern that the 2013 Agreement does not meet the requirement in s.186(2)(a) of
the FW Act may not be amenable to being met by an undertaking. Nonetheless, we will give
Teys until 25 September 2014 to provide a relevant undertaking.
[129] In the event Teys fails to provide an undertaking that meets our concern, we will
dismiss the application for approval of the 2013 Agreement.
SENIOR DEPUTY PRESIDENT
F THE FAIR WOR AU TRALL OMMISSION SE SEAN THE
[2014] FWCFB 5643
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DECISION OF SENIOR DEPUTY PRESIDENT RICHARDS
Introduction
[130] I have had the benefit of reading the decision of the Senior Deputy President and the
Commissioner but, respectfully, cannot agree with the reasoning therein, or its final
disposition regarding what has been a lengthy process in relation to the consideration by the
Commission of an application for approval of a single enterprise agreement.
[131] The appeal follows a relatively narrow vote in support of the Teys Australia Beenleigh
Pty Ltd Production Departments Enterprise Agreement 2013 (“the Agreement”) from
amongst the (relevant) 800-strong workforce at the Beenleigh abattoir in 2013, which the
AMIEU now seeks to have set aside on grounds that Deputy President Asbury fell into error
in being satisfied to the requisite degree that the Agreement had been genuinely agreed to for
purposes of s.186(2) of the Act.
[132] The central issue before the Deputy President was whether 17 employees employed to
perform duties with the Respondent's production operations under the classifications set out in
the Agreement, who had elected to undertake structured training (at Cert IV level) in
supervision and had been given the nominal title of “trainee supervisors”, and who had not
acquired the relevant competencies and had not as yet been employed as supervisors, were
covered by the proposed Agreement, and were entitled to vote for the purposes of the
approval (or otherwise) of that Agreement.
[133] A second issue (also about coverage of the Agreement) arose as to whether various
other employees on temporary assignment or otherwise - they being a recruiting officer, a
trainee workplace health and safety officer, an employee in the production section who was
providing interpreting services to other employees, and a sample collector, were entitled to
vote pursuant to s.182 of the Act. These employees, so the evidence was before the Deputy
President, were undertaking training and/or shortly to return to their original production roles
as they had only been temporarily redeployed at the time of the ballot.
[134] The various appeal grounds, one way or another, essentially focused on bringing into
question whether the Deputy President’s conclusion that the nominally titled ‘trainee
supervisors’ (and others as cited above) remained within the scope of the Agreement.
Coverage
[135] The coverage and scope clause of the Agreement is as follows:
1.3 Coverage & Scope
This Agreement shall apply to all Employees employed by Teys Australia Beenleigh
Pty Ltd who are engaged in stock receival and preparation, production, and cleaning
operations at the Beenleigh plant whose work is covered by the classifications
contained in this agreement.
This Agreement does not seek to, nor does it cover, Employees engaged in repair and
maintenance, administrative and clerical, laboratory, first aid, managerial and/or
supervisory work.
[2014] FWCFB 5643
38
[136] The Deputy President held that despite undertaking training and various temporary
assignments, each of the relevant employees remained within the scope of the Agreement.
The Deputy President so held because the contracts of employment for each of the
abovementioned employees did not cease upon them becoming trainee supervisors or
otherwise, nor did any of the employees hold a subjective belief that their contracts as had
been originally entered into had been terminated upon assuming a trainee role or a temporary
assignment, and that the employees in question continued to perform duties in the production
operations regularly or were only absent from those duties for temporary periods of time.
[137] In respect of those employees undertaking training, the Deputy President observed that
should their training not result in being offered a supervisory role they would return to
perform their duties on a full time basis in the Respondent’s production operations. That is,
the employees in question had been “engaged” as employees in production operations and
continued to perform duties related to that engagement despite their training (or were
otherwise only on temporary assignments) for the purposes of clause 1.3 of the Agreement
(which is set out above).
[138] While quite a number of the relevant employees may have received a rate of pay at the
highest classification level, the informal practice in this regard was not considered to be a
relevant consideration by the Deputy President. This is because the payment of a higher rate
(sometimes for “encouragement” purposes as the evidence put it) did not have the consequent
effect of changing the principal purpose of employment of each of the employees’
engagement or the employees’ ‘substantive’ classification, such that it removed any relevant
employee from coverage of the Agreement. I will return to this matter in more detail below.
Principal purpose for which the employee is employed: Trainee Supervisors
[139] As mentioned, the Deputy President approached the determination on the basis of
whether or not the employees concerned were employed in their original classifications by
reference to the principal purpose test. The principal purpose test was articulated in the Full
Bench decision of the Australian Industrial Relations Commission (as it then was) in R Brand
v APIR Systems Limited.47 That decision, in turn, cited the decision of the Full Bench of the
Australian Industrial Relations Commission (as it then was) in Carpenter v Corona
Manufacturing Pty Ltd, which stated relevantly as follows:
In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do the work with a view
to ascertaining the principal purpose for which the employee is employed. In this case,
such an examination demonstrates that the principal purpose for which the appellant
was employed was that of a manager. As such, he was not "employed in the process,
trade, business or occupation of ... soliciting orders, obtaining sales leads or
appointments or otherwise promoting sales for articles, wares, merchandise or
materials" and was not, therefore, covered by the Award.48 [My emphasis]
[140] The principal purpose test applies equally to ascertaining the coverage of agreements
as it does to awards.
[2014] FWCFB 5643
39
[141] Because the trainee supervisors are the largest group of the relevant employees
undertaking training, much of my commentary is focused upon their roles. I will return to
discuss the coverage of the remaining, smaller group of employees (to whom I have referred
earlier) towards the end of my decision.
[142] The Deputy President’s ultimate position was that the relevant employees undertaking
training have not ceased to be covered by the Agreement for reason of that training, and at all
times retain the principal purpose for which they were originally employed.
[143] I add at this juncture that there is no contest in this matter that the relevant employees,
before undergoing training or accepting temporary assignments, would otherwise have been
covered by the Agreement, and entitled to vote. That is, there is no contest that the employees
were not employed prior to their training commencing on terms that were consistent with
scope clause in the Agreement.
[144] The evidence about the trainee supervisors’ training arrangements put before the
Deputy President (at least in small part) by way of the Respondent’s General Manager -
Operations was in part as follows:
Once [...] identification has been made, these individuals are placed on a career
development program designed to enhance their skills and potential and assess their
suitability for a supervisor position. It involves formal tuition towards a Certificate IV
in Front Line supervision, more involvement in food safety knowledge, practices and
procedures and gradually from time to time carrying out supervisory tasks under
supervision from staff employees.
[...]
It is made clear to them [...] that during their training program they will continue to be
paid in accordance with the Beenleigh plant’s EBA in their normal classification, and
they can be given no guarantee as to if and when they will be formally offered a
salaried staff position.
[...] It is also made clear that there will be many occasions during their training that
they will be working purely in production and/or training roles [and] their continuity
as a production worker (including their formal seniority and other service-based
entitlements) is preserved.
[145] The employees who were undertaking training in supervisory work (and for whom
there is no guarantee of being so engaged at a future time), were not (and are not) engaged for
the principal purpose of being trainees in the work in which they are being trained.
[146] Nor were they - at the time of the vote for the Agreement - principally employed in the
positions in respect of which they were being trained (or to which they were temporarily
assigned etc in the case of the smaller group, to be considered below).
[147] At all times, the employees are no more than employees who are being trained in
supervisory work (or otherwise temporarily assigned) and who remain employed for the
principal purpose of their original duties - to perform duties in the Respondent’s production
operations. Further, when the relevant employees undertake duties in the production
[2014] FWCFB 5643
40
operations in the course of the training they do so on the basis of the continuation of the
principal purpose of the engagement as production employees.
[148] In a training context, the principal purpose of an employee’s employment does not
alter because of the training opportunity in which they are engaged. If any production
employees undergoing training failed to achieve the required competency, or otherwise, they
would not be dismissed for reason they were unable to perform the principal purpose of their
employment. No such argument would be tenable. This is because the principal purpose of the
employees’ employment had been unaltered, and they would merely return, this time on a
full-time basis, to their duties in the Respondent’s production operations.
[149] Equally, if the employee’s training concluded and no salaried role as a supervisor was
entered into, the employees concerned would revert to their roles in the Respondent’s
production operations on a full time basis. The evidence before the Deputy President was that
there was a common understanding on the part of the employees undergoing the training and
their employer to this same effect.
[150] To deem the relevant employees as “trainee supervisors” who are a class of
employees who stand outside the Agreement for reason of such a label or title in the
classification structure is to require too much of a label of convenience. The employees
concerned are production employees undertaking training through which they seek the
possibility (only) of career advancement and who regularly perform duties in production
operations.
[151] It matters little if the content of the training is not able to be characterised under the
classification structure, other than that it reflects a business need. There are other job roles in
the workplace that do not fall within the classification structure (“tutors”, “labourers”,
“butchers” and “leading hands” (other than for night cleaning)). These job roles require their
incumbents to perform duties or roles not articulated within the classification structure. But
there is no contest that these positions fall outside the scope of coverage of the Agreement,
and the employees who occupy these positions should not have voted in the ballot for the
Agreement (or for past agreements and in the prior protected action ballots).
[152] Like production employees undertaking supervisory training, the “tutors” and
“labourers”, “butchers” and “leadings hands” (other than for night shift cleaning) have job
titles that allude to their supplementary tasks or duties undertaken on behalf of the business.
They are not job roles for which there is any classification. They are performed outside of the
Agreement prescriptions. But those informal job titles requiring supplementary duties (such as
those set out above) do not serve to change the principal purpose for which the employees
were employed, or otherwise cause the employees to be displaced from the scope clause of
the Agreement (and its benefits, such as sign-on bonuses etc). There was no argument to this
end on appeal (at least in relation to the “tutors” and “labourers”, “butchers” and “leadings
hands”). To contend otherwise, of course, is to introduce a new level of prescription in
agreement-making that requires the articulation of each and every job title and function that
may be contemplated in a workplace (at the risk of changes in or loss of coverage).
[2014] FWCFB 5643
41
[153] Similarly, one would not look to consider whether the employees who performed such
duties as “tutors” “labourers”, “butchers” and “leading hands” were performing such duties
under such titles (as opposed to those employees’ substantive designation under the
Agreement) at the time of the vote for the Agreement any more than one would look to
determine whether the employees undertaking training were undertaking training or
production-related work at the precise time the vote occurred.
[154] I add to that, there was no challenge in the course of the proceedings before the
Deputy President to the duration of the supervisory training engaged in by the relevant
employees. It was not alleged that the training was not genuine training or that the lengthy
period of training was necessitated by the need for a period of acculturation. No finding can
be made on the basis of the evidence that the duration of the training in supervisory work was
not genuine training for its intended purpose. Therefore, the duration of the training cannot be
taken to alter fundamentally the relevant employees’ principal purpose of employment. The
training in supervisory work was no different than training generally.
[155] There is no error, therefore, in the finding by the Deputy President that the principal
purpose of the employees engagement remained unchanged regardless of the fact of their
having taken up a training opportunity or else for reasons of a temporary assignment, and for
this reason they remained within the scope of the Agreement. The relevant employees were
not dislodged, as it were, from the coverage of the Agreement for reason that they had taken
up contingent opportunities for career advancement, or temporary assignments.
Approach to clause 1.3 of the Agreement
[156] For purposes of ascertaining coverage, the Agreement indicates that an employee must
be engaged in work of the kind set out in clause 1.3 of the Agreement (stock receival and
preparation, production and cleaning etc) and the “work” of that employee so engaged must
be covered by the classifications contained in the Agreement.
[157] The Deputy President did not closely analyse the requirements of clause 1.3 of the
Agreement for the purposes of determining the coverage issue. But little turns on this. The
Deputy President found that the principal purpose of the relevant employees’ employment had
been unchanged by the fact of availing themselves of a training opportunity, and they
remained engaged (for purposes of clause 1.3 of the Agreement) as they were originally, in
production. That is, the Deputy President found that the employees remained, regardless of
the training opportunity, employed for the principal purpose as they always had been (in the
production operations in classifications under the Agreement), and therefore were covered by
the Agreement and entitled to vote for purposes of making the Agreement.
[158] It is true that the Deputy President referred to the employees maintaining the original
contractual basis of their employment in the course of determining the coverage issue. But on
a fair reading of the decision as a whole, this was not a criterion improperly (because it is a
criterion not referred to in clause 1.3 of the Agreement) relied upon by the Deputy President
for purposes of establishing coverage itself (and outside the terms of clause 1.3 of the
Agreement).
[2014] FWCFB 5643
42
[159] The Deputy President referred to the fundamentally unchanged contractual status of
the employees as a point of emphasis and as a step in her chain of reasoning for purposes of
her conclusion that the employees retained their substantive classification, and the principal
purpose of their employment had been unchanged for reason of undertaking training:
The Agreement in the present case describes production workers and it does so by a
combination of descriptions of the kind of work, the type of employment and the
classification, job level or grade and a requirement that employees be engaged to
perform the designated work or role. Trainee Supervisors have a substantive contract
of employment under which they are engaged as production workers, classified in
accordance with the work they are engaged to perform.49
[160] Further, I discern no contradiction in the Deputy President’s finding of the unchanged
contractual basis to the relevant employees’ employment, and the evidence of Mr Salter, the
General Manager - Workplace and External Relations.
[161] Mr Salter did give evidence that the relevant employees’ contracts of employment had
been consensually altered to accommodate their training program (as it must in all such
instances of training formal and informal), but this is unremarkable and does not go to the
issue of the principal purpose of the employees’ engagement.
[162] In this more fundamental sense, the contracts of employment of the relevant
employees had not been changed (as the employees attested) and as Mr Salter’s wider
evidence (that the employees undertaking supervisory training are not supervisors and not
doing supervisory work) made clear.
[163] The Deputy President was also informed in her assessment of the coverage of the
Agreement by the factual situation, including not just the unchanged contractual status of the
employees, the views of the employees and the employer, the evidence of the regular duties
continuing to be performed in production, and the fact of the relevant employees not having
any authority or responsibility in the positions in which they were being trained. The Deputy
President’s decision needs to be read as a whole, and fairly, in this regard.
[164] This is similarly so in relation to the use by the Deputy President of the phrase
“engaged as production workers” in the course of her reasoning. Clause 1.3 of the Agreement
does not refer to “production workers”; it refers to employees being engaged in various
operations in the Respondent’s business, such as production. But the phrase does not
illuminate an error in the Deputy President’s understanding of clause 1.3 of the Agreement as
it is a shorthand reference to clause 1.3 of the Agreement (“engaged in [...] production”) and
to the performance of production work applicable to the classifications in the Agreement.
[165] No doubt it was for this reason that the AMIEU representative on appeal utilised the
same phrase in relation to clause 1.3 of the Agreement (for the purpose of distinguishing
coverage):
This agreement has nothing to do with supervisory work at all. Clause 1.3 is very
specific and it is very unusual. The drafter has placed the exclusion in clause 1.3 for
good reason, because the delineation or the demarcation between a meat worker; that
is, a production worker, and a supervisor who is engaged in supervisory work is so
stark in a factory.50 [My emphasis]
[2014] FWCFB 5643
43
[166] A question reasonably arises as to whether the Deputy President gave appropriate
weight to the extent of the change in the employees’ work under the training and temporary
assignments in reaching her findings.
[167] In this respect, the Deputy President considered all the evidence of the various relevant
employees in the course of a lengthy decision and reasonably appreciated the nature of the
work being undertaken and its departure from the work performed in the course of the
employee’s ordinary full time duties.
I remain of the view that employees paid and classified as production workers at
various levels of the Agreement can be temporarily assigned to perform incidental
tasks such as assisting co-workers from non-English speaking backgrounds, at the
behest of Teys, by interpreting for those co-workers, or to perform office work. The
evidence is that the employees engaged in these temporary assignments have now
returned to their roles as production workers or will do so during the term of the
Agreement. That does not change the fact that they are and continue to be covered by
the Agreement while performing the temporary assignment.
[...]
A temporary redeployment does not change the employee’s substantive engagement,
particularly in circumstances where the employee can at any time, at the discretion of
Teys, be required to perform production work [..]
The question of whether an instrument covers an employee requires more than a
quantitative assessment of the time spent carrying out various duties. What is
determinative is the circumstances in which the person is employed and the principle
purpose of the employment. In the present case, the Trainee Supervisors, interpreters
and persons being trained to undertake quality control or workplace health and safety,
are principally employed as production workers, and Teys has the right at any time to
return them to such roles [...].51
[168] The Deputy President was unconcerned by the extent of the change in the relevant
employees’ work in the course of their training or over the duration of their temporary
assignments, though clearly aware of those issues as they arose in the evidence. There would
be little purpose to training if the there was no change in the employees’ work. But more so,
the Deputy President held in relation to the temporary employees that the extent of the
absence from the production operation or otherwise did not impact upon the principal purpose
of the employees’ engagement or the related classification. Again, there was no point taken on
appeal that the temporary engagements or assignments and the training were not genuine
arrangements.
[169] There are no issues here that warrant correction on appeal; the Deputy President did
not misunderstand or overlook any terms of the scope clause or otherwise disregard evidence
that contradicted her findings.
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44
Past conduct
[170] The exclusion of the relevant employees from coverage of the Agreement is not an
outcome, further, which accords with past practices. The employees in question have voted
for and have been taken to be covered by the antecedent enterprise agreement and there has
been no contest as to their status. It appears, on the Deputy President’s decision, that the
employees in question were also included in the voting roll for the relevant protected action
ballot. The relevant employees themselves (including the AMIEU witness referred to
immediately below) also held the subjective understanding that they would be covered by the
Agreement when undertaking training, as did the employer with whom they made the
Agreement.
[171] The evidence of the AMIEU delegate which was before the Deputy President was also
set out before the Full Bench. It was as follows, in edited form:
Mr Stagg, who is a delegate and a witness called by the union, was asked:
Have you ever been asked to join the supervisor training program?---I’ve had an
interview. I’ve never been asked. I was asked to sit for an interview.
Yes, and so you wanted to take the role on?---I would have, yes.
Yes, and, Mr Stagg, if you had accepted that role, you still would have been employed
under the enterprise agreement, wouldn’t you?---I believe so, until such time as I was
on staff.
[...] Mr Stagg was asked :
And at that meeting there was a list prepared of employees who, according to the
union, shouldn’t have been allowed to vote?---That’s correct.
You were involved in preparing that list, weren’t you?---That’s correct.
[...]
[H]e was asked why, and Mr Stagg said:
We just don’t believe they were allowed to vote.
[...]
No concern had ever been raised before about them, had it?---Not to my knowledge,
no.
So why did you suddenly take the view that they weren’t allowed to vote?
---Because of how close it was.
[...]
[2014] FWCFB 5643
45
It’s a fact, isn’t it, that until this particular process, the August process, no-one has
ever suggested that trainee supervisors shouldn’t be allowed to vote, have they?---No.
[...]
The reason for preparing the list was because you wanted to oppose the approval of
the agreement, didn’t you?---Yes. We didn’t want it to go to the vote.
No. If you had wanted it to go to the vote and it had been close, would you have
raised the issue?---That’s a hard question to answer.
[...]
Let me put a suggestion to you. If the union had supported this ballot - - -?
---Yes.
- - - and you’d still been aware that trainee supervisors had voted and it was still this
close, you wouldn’t have prepared the list and you wouldn’t have opposed the
approval, would you?---Possibly not.
[172] Mr Stagg, the AMIEU member who gave the above evidence, himself believed that he
would continue to be covered by the Agreement when undertaking supervisory training (a
view shared by Mr Salter). The evidence above is suggestive of the shared view of the
employer and the employees regarding the coverage of the Agreement, at least until such time
as the Respondent and the AMIEU fell into contest.
Are production employees who undertake supervisory training engaged in “supervisory
work”?
[173] Clause 1.3 of the Agreement excludes from coverage of the Agreement employees
“engaged in [...] managerial and/or supervisory work”.
[174] Here the circumstances are that a number of production employees who are
undergoing training in supervisory work are claimed to no longer fall within the coverage of
the Agreement.
[175] I have indicated above, at least implicitly, a production employee who is undertaking
supervisory training is not to be considered as being employed for the principal purpose of
conducting “supervisory work”. Reasonably, managers perform and are engaged in
managerial work, and supervisors perform and are engaged in “supervisory work”. The
purpose of the exclusion is a practical one, and it serves to exclude those roles where the
incumbents perform salaried supervisory work in which they are competent and have been
engaged through the requisite process for the purpose of performing. Participating in training
does not give rise to a reclassification into the area of skill at which the training is directed
until the competency is achieved and the skills are utilised for the purpose and benefit of the
business.
[2014] FWCFB 5643
46
[176] The AMIEU representative on appeal seemingly made the similar point :
The drafter has placed the exclusion in clause 1.3 for good reason, because the
delineation or the demarcation between a meat worker; that is, a production worker,
and a supervisor who is engaged in supervisory work is so stark in a factory.52 [My
emphasis]
[177] Until such time as the relevant employees are deemed competent to conduct
supervisory work and perform work as supervisors at the direction of the Respondent, the
trainee employees remain production employees, as they had been originally employed;
continue to perform their production work “quite regularly” (see below) in the classifications
under the Agreement; and are subject to the coverage of the Agreement as a result.
[178] There was no argument on appeal, I add, that any of the employees undertaking
supervisory training were proven competent supervisors and were thus performing
supervisory work for that reason (let alone at the effective direction of the employer). As the
evidence before the Deputy President showed, the employees training to be supervisors were
themselves supervised by salaried staff supervisors and unable to exercise any authority or
assume any responsibility. Thus, in terms of classification, they cannot be taken to performing
supervisory work in such circumstances.
[179] There are, therefore, no grounds on which to conclude that an employee employed for
a particular purpose ceases to perform work in their substantive classification (which was the
principal purpose of their engagement) for reason of them having accepted a training
opportunity. In the case before the Full Bench, the trainee supervisors have not completed the
training program; they remain trainees; they are not competent in any role outside the
classification structure; and they continue “regularly” to perform duties in the production
department in accordance with their substantive classification. The employees concerned were
only competent in the production roles in which they were employed; this therefore remains
the principal purpose of their employment.
Employees continuing work in production
[180] In the evidence before the Deputy President the production employees were shown to
have continued to perform production duties as and when required. I have referred to this
being the case in my earlier discussion. The evidence showed that the employees concerned
continued to perform duties within the production area whilst they were trainees. I set some of
this out immediately below, as it was before the Deputy President.
[181] The evidence before the Deputy President, unsurprisingly, was that the employees
who are undergoing training are not competent in the duties in which they are being trained.
Further, they are being trained in work (such as encouraging certain approaches to
production) that is related to their work as production employees; just as maybe a “tutor” or a
“leading hand” who exercise supervisory-like skills would. In respect of the relevant
employees, the evidence (provided by Mr Gee, the General Manager - Operations for the
Respondent) that was before the Deputy President, was that:
[2014] FWCFB 5643
47
In their role as trainee supervisors, these employees are encouraged to assist other
employees, identify and resolve issues. They are also encouraged to make suggestions
and directions in relation to production issues. However, they do not have the
authority of a supervisor to give any form of formal command to an employee or to
initiate or implement any form of disciplinary action.
[182] The further evidence around the work of trainees was explored by the Deputy
President, and it showed that the trainees, regardless of their trainee status, still performed
duties within the production area. Some of the evidence is set out below in relation to various
of the trainees:
Mr Malcolm Garth
Although I am training [...] I would estimate that I would spend up to two hours every
shift performing some type of labouring work or skilled work in the boning room.
These include:
(a) Most days I assist with packing meat to help the team catch up. I would probably
do this for up to 30 minutes every shift.
(b) Two or three times a week I carry full boxes of frozen lidder usually for 20-30
minute stints.
(c) I will do knife work at the pre trim station when operators are going on breaks.
[...] at any stage I could be directed by Teys to perform the tasks of a boner on a full
time basis for a day or for an extended period of time.
Ms Christina Dunling
I still perform the following labouring jobs and skilled tasks from time to time:
(a) I jump on the frozen manual scales when operators are going on their brakes. I
sometimes do this 45 minutes or so on any given shift.
(b) on a weekly basis I will spend time putting labels on the cartons.
(c) on a weekly basis I will spend time working on the frozen lidder. Depending on
workload, I might do this for a full shift.
(d) on a weekly basis I will step up and cut-out an operator who is performing pre-trim
work when they are about to go on a break. When I am doing this, I had to use my
knives and might do this for 15 or 20 min.
(e) I will regularly help the Packers physically load boxes using the hopper and the
“lazy sue”. [...] I am also well aware that as a trainee I can be directed by Teys to
perform any or all of the above tasks at any time [...or] on a full-time basis.
Mr Patrick Carle
[...] during the first 12 months of being a trainee supervisor, I stepped back into the
team very regularly to perform the tasks of an AAO and also carry out bleeding,
evisceration, and hide pulling. [In] the last 12 months, I have stepped back into the
team on fewer occasions, but still do those tasks from time to time and know that I am
always “on call” to do those tasks.
[2014] FWCFB 5643
48
[183] There was wider evidence before the Deputy President given by the General Manager
- Operations for the Respondent about the extent to which the 17 trainee supervisors
continued to perform production related duties over the course of their training. This work
ranged as follows across the various employees/trainees (in summary at least):
performing duties relating to shrink wrapping pallets;
carrying out forklift tasks;
stepping in for ‘full shifts’ on the offal scales;
spending ‘whole shifts’ throughout the week performing ‘legging’;
‘regularly’ scanning and port marking’;
‘very regularly’ cutting out other employees and performing pre-trim work, along
with evisceration and bleeding tasks;
‘almost every day’ packing offal and intestines;
‘often’ stepping back and assisting with packing meat and cutting people out during
their brakes; and
‘very regularly’ stepping back into the boning room team to perform slicing and
tutoring work ‘sometimes for weeks at a time’.
[184] Further evidence was given by the General Manager - Operations that the duration of
the training was because “it took employees a period of time to adjust to thinking and acting
in a supervisory way rather than as a production employee”. I refer to this elsewhere, in
shorthand, as acculturation.
[185] This evidence appears to have been uncontested before the Deputy President.
Training and “supervisory work”
[186] Clause 1.3 of the Agreement excludes from coverage of the Agreement those
employees performing “supervisory work”.
[187] It does not appear to me that the production employees undertaking training in
supervision become “supervisors” and hence engage in “supervisory work” until such time as
they acquire the relevant competencies through the structured training program, complete
their Certificate Level IV, and are offered a salaried contract with the external corporate entity
(which employs supervisors) on behalf of the Respondent. It is by that means that an
employee becomes a supervisor, and engages in supervisory work, and as such is expressly
excluded from the Agreement by way of clause 1.3 of the Agreement. Until such time (or at
least until the employees are deemed competent and thus perform supervisory work at the
direction of their employer), the employees remain production employees availing themselves
of a training opportunity in an area of business need.
[188] The employees in question understood themselves that they would resume their
original full time duties as production employees should they not be offered a role as a
supervisor upon completion of the training program.
[2014] FWCFB 5643
49
Coverage considered
[189] For the reasons I have given above, the relevant employees, of whatever kind, and
employees on temporary reassignments (et cetera) are employed by the employer covered by
the Agreement. They are not operationally, organisationally or geographically distinct from
the classes of employees otherwise covered by the Agreement. There does not appear to me to
be a sound reason for their exclusion, given the circumstances set out above in Re Cimeco Pty
Ltd v CFMEU. In that decision the Full Bench, following an examination of s.186(3) and
s.186(3A) of the Act, commented:
Given the context and the legislative history it can reasonably be assumed that if the
group of employees covered by the agreement are geographically, operationally or
organisationally distinct then that would be affected telling in favour of a finding that
the group of employees was fairly chosen, conversely, if the group of employees
covered by the agreement was not geographically, operationally or organisationally
distinct then that would be affected telling against a finding that the group was fairly
chosen. 53
[190] The relevant employees are, instead, a group of employees who were employed to
perform production work, who had been given an opportunity to undertake further career
progression by training, and who retained strong and identifiable linkages with their
production roles. If they are unsuccessful in their training (or otherwise) they resume their
original duties (on a full time basis). In such a context, the employees have not transitioned
from being employed consistent with the terms of clause 1.3 of the Agreement to being
“geographically, operationally or organisationally” distinct from other employees in the
Respondent’s production operations. The group of employees covered by the Agreement
would not be fairly chosen if it were to exclude such employees (undergoing training or
temporarily redeployed and re-assigned) from coverage under the Agreement).
The nature of clause 3.4 - payment and scope of training
[191] Clause 3.4 of the Agreement states that:
[...] Employees will be paid at the either the Level 2A rate of pay or the ordinary rate
of pay for the classification in which the Employee was employed prior to
commencing the training, whichever is greater.
[192] The majority appear to maintain that the rate of pay afforded to those undergoing
structured training indicates that clause 3.4 is not intended to operate in relation to Levels 3-6
of the Agreement. Therefore, on this approach, employees can only be trained in relation to
work in Levels 1 and 2 of the classification structure.
[193] The Deputy President was not diverted by this matter in respect of her consideration of
the coverage of the Agreement. It was reasonable for her not to be diverted for reason that an
arrangement entered into by the employer by way of clause 3.4 of the Agreement that may be
unusually beneficial to certain lower paid classifications is not telling in respect of the
classification of the relevant employees or their principal purpose for being employed by the
employer.
[2014] FWCFB 5643
50
[194] On the evidence before the Deputy President, the trainees were “frequently” receiving
rates of pay as trainees in excess of their ordinary rate of pay for their classification. The
practice appears to have been from the evidence that the employees were paid at the top of
their classification and if already at the top pay point, the employee retained their rate of pay.
This was a means by which the employer provided the employees with encouragement over
the course of their training.
[195] Clause 3.4 of the Agreement may be imperfectly designed to an outside observer, but
it is not a matter that bears upon the statutory considerations to which the Deputy President
needed to give attention. No issue was raised on appeal, for example, that the Agreement had
not met the requirements of s.193 of the Act (the Better Off Overall Test) in respect of this
matter.
[196] The employer and its employees appear to have ordered their affairs in wider ways as
well. The practice of the employer and the employees in relation to career advancement is
strongly suggestive of their collaboration towards a mutual end in this regard. For example,
the following evidence was given by Mr Dion Ludwigson, who held a position title as a
“tutor” (which is not identified within the classification structure). Mr Ludwigson’s evidence
was that he had progressed up the classification structure and been trained at each point:
While you were employed as a tutor, were you covered by the enterprise agreement?--
-Yes.
[...]
Is there a classification for “tutor” in the enterprise agreement?---No.
So what was your classification?---BC1.
You’re a boner so you’re classified as a BC1 but in fact you were employed as a
tutor?---I was employed as a tutor.
[...]
Have you ever participated in training courses at this site?---Yes.
What was your classification before you were classified as a boner?---I was a slicer
and before that, I was a packer.
[...]
So you have come up through the classification structure?---Yes.
And presumably at each point in that advancement, you have been trained?
---Yes.
Mostly you’re a slicer?---That’s correct.
Under the EBA, the classification of boning is a higher classification to slicing?---
That’s right.
[2014] FWCFB 5643
51
They’re paid more?---Yes.
You’re actually paid as a boner?---That’s right.
Even though you’re a slicer -
[197] This was the state of the evidence before the Deputy President. It may be the case that
structured training as the Agreement describes was limited to tasks involving progression to
Levels 1 and 2 of the classification structure; but the Agreement only regulates what it
describes. There are other formal and informal training procedures the employer and the
employees engage in outside of the context of clause 3.4 of the Agreement and that serve the
practical needs of the business and the employees themselves (just as there are numerous
other positions performed in the workplace but not prescribed in the Agreement (such as
“tutors”, “butchers”, “leadings hands” etc)). Mr Ludwigson’s evidence points in this
direction; he had progressed through the classification structure by training (presumably by
various training paths) and not just for the particularly limited purpose of clause 3.4 of the
Agreement.
[198] Whether the production employees concerned were undertaking structured training
under clause 3.4 of the Agreement or some other formal or informal or other organised and/or
structured training is not relevant to the issue of coverage or the principal purpose of the
employee’s employment. In the current case, it is only upon achievement of the competency
to which the training is directed (and at such time as the employee’s skills are relevantly
utilised) that the employee becomes engaged in supervisory work and thus is excluded from
coverage as regulated by clause 1.3 of the Agreement. Clause 3.4 of the Agreement does not
otherwise bear upon the circumstances.
Other trainees and employees on temporary assignments
Acting Translator
[199] Ms Thao Nguyen is acting as a translator who is on a temporary assignment providing
Vietnamese translation services, assisting employees whose first language is Vietnamese with
visa matters.
[200] Ms Nguyen is classified as a Level 3 under the Agreement and holds a substantive
position in the boning room. The majority decision contends that Ms Nguyen is no longer
covered by the Agreement because the work on which she is temporarily engaged is not
stipulated in the classification structure and is not referrable to a rate of pay in the
classification structure.
[201] The evidence before the Deputy President in relation to Ms Nguyen’s employment
circumstances were as follows:
Thao Nguyen commenced in the boning room in November 2011. Thao is currently
classified as a BC3 under the production EBA. On 19 March 2013, Thao commenced
in a temporary role as a Vietnamese interpreter to assist the Vietnamese employees at
the Beenleigh plant in relation to their visas. It was agreed with Thao that this role
would be temporary until all of the Vietnamese employees at the Beenleigh plant had
their permanent residency applications approved or their visas expired and were not
[2014] FWCFB 5643
52
renewed. There are currently five families to go through the permanent residency
process, and it is expected that this should be completed within two or three months.
Thao has expressed a desire to progress to an administrative role if one becomes
available in the future. However, currently there is no available role for her, and she
will shortly return to her substantive position as a packer in the boning room at the
completion of her temporary role. Thao understands that this will occur.
[202] For the reasons I have given above in relation to trainee supervisors, regardless of the
role which Ms Nguyen is undertaking on a temporary assignment, she retains the principal
purpose of her employment and her substantive Level 3 classification, and remains covered
by the Agreement as a consequence.
[203] There is no evidence of Ms Nguyen or the Respondent having acted to terminate the
basis of the original engagement in the boning room, to which Ms Nguyen was to return.
Ms Nguyen merely undertook duties on a temporary assignment that utilised her wider skills
for a particular business need. On the evidence before the Deputy President, Ms Nguyen was
shortly to return to her substantive role.
[204] Like the other employees discussed above and the employees on temporary
assignments or re-deployments, Ms Nguyen’s principal purpose for being employed was
always referrable to her substantive classification (in which she was employed). Her
engagement in other work for a short period did not cause her to cease to be covered by the
Agreement or change the principal purpose of her employment.
HR Trainee
[205] Ms Fetalaiga Auenese was on a temporary trial role (as it was described) to the
HR Department. She commenced that role in March 2013. Prior to that Ms Auenese worked
in the offal room, where she is classified at Level 4 under the Agreement
[206] In May of 2013 Ms Auenese returned to the offal room for about a month on a full
time basis.
[207] Ms Auenese, at the time of the approval of the Agreement in August 2013 had
resumed her temporary trial role to the HR Department for a period of approximately two
months. On the only evidence before the Deputy President it was “most likely” that Ms
Auenese would return to the offal room and an experienced recruiting officer would be
transferred from another establishment. For the reasons I have given above in relation to Ms
Nguyen, regardless of the role which Ms Auenese is undertaking on a temporary/trial basis,
she retains her substantive Level 4 classification and remains covered by the Agreement,
which is the principal purpose of her employment.
Trainee WHS Officer
[208] Ms Connell’s tasks as they related to her training relate to risk and injury management
and other workplace health and safety duties. Training for a WHS role is not expressly stated
in the Level 1-6 classification structure. The majority decision contends that Ms Connell is no
longer covered by the Agreement for reason that her work as a trainee is not covered by the
classification structure.
[2014] FWCFB 5643
53
[209] Ms Connell’s circumstances are the same as those I have considered in relation to the
other employees undertaking supervisory training. Her duties in the course of her training are
for the purpose of obtaining a competency in WHS. She has not acquired such a competency
and the principal purpose of her employment remains her substantive engagement as a
Cleaner-Leading Hand (the duties in respect of which she can be required to perform upon
direction). Ms Connell remains covered by the Agreement.
Sampling role
[210] Ms Danielle Mannell takes swabs and product samples for testing.
[211] There is very little evidence as to the terms under which Ms Mannell conducts her
duties. It is not apparent in the evidence that was before the Deputy President that
Ms Mannell is on a temporary contract, or undergoing training.
[212] The cross examination of Mr Gee about Ms Mannell’s role was limited and extended
to the following exchange:
Now, Danielle Minell helps out in productions tasks, you've referred to her in your
evidence?---Yes, that's correct.
She doesn't do a production job though, does she?---Again, these are one of these
tasks that aren't specifically named in the EBA.
That's right. It's not classified in the - - - ?---Right. Which may be an oversight from
whoever, I don't know if legal eagle people wrote the document, I'm not sure. Again,
she has been in this role for a short period. The lady who did it four years previously
has also voted in the previous EBA.
Ms Minell has laboratory technician written on her helmet, doesn't she?---I don't
know.
You don't know?---No. I couldn't answer that one. (sic)
[213] Mr Gee’s direct evidence was no more than that Ms Mannell commenced work in the
boning room in April 2012 and was classified under Level 3 of the Agreement. For the
12 months prior to the hearing before the Deputy President (which was in September 2013)
Ms Mannell had undertaken tasks as a “production sample collector”. Mr Dion Ludwigson,
for the AMIEU and who is referred to above and who gave evidence in the proceedings
before the Deputy President, described her duties similarly. Mr Ludwigson, however, also
claimed Ms Mannell was a “Laboratory Technician”, but there appears on the evidence before
the Deputy President to be no such position in the Respondent’s business. Ms Mannell,
Mr Gee contended in an unchallenged context, also “helps out in the frozen packing area and
bagging area.”
[214] Generally in my view, Ms Mannell’s classification - and the principal purpose of her
employment - is indeterminate on the state of the evidence before the Deputy President. The
Respondent’s evidence had not been of sufficient scope or quality to prove Ms Mannell was
covered by the Agreement, and equally the AMIEU were unable to add a great deal to the
[2014] FWCFB 5643
54
actual basis of Ms Mannell’s assignment, if it can be so described. There is, then, insufficient
evidence before the Full Bench to conclude its own view.
[215] In other circumstances, the matter might reasonably have been referred back to the
Deputy President for determination. But in the context of my findings there is no practical
purpose in so doing.
Conclusion
[216] I discern no error in the Deputy President’s reasoning as to whether the production
employees undertaking supervisory training and other temporarily reassigned employees were
at all times covered by the Agreement.
[217] The Deputy President applied the correct test - that being the principal purpose test -
and concluded that the principal purpose of the relevant employees’ employment was not
altered by their training status or their temporary reassignments: they remained employed for
the purpose of performing production operations and their work in this regard fell within the
classifications set out in the Agreement. The employees, therefore, fall under the scope of the
Agreement.
[218] The Deputy President, having heard the evidence, was satisfied that the group of
employees to be covered by the Agreement was fairly chosen for the purposes of s.186(3A) of
the Act and that the trainees and those on temporary assignments and short term roles should
not be excluded from coverage. Indeed, it would be particularly difficult to construe the
circumstances as warranting the exclusion of a class of employees (they being the employees
engaged in training arrangements or on temporary assignments) from coverage of the
Agreement when there is no contest that, but for those arrangements, the employees were
employed for the purposes of clause 1.3 of the Agreement.
[219] I make one concession in this regard and this is in relation to Ms Mannell, whose
classification is indeterminate on the state of the evidence.
[220] The Deputy President therefore approached the decision on coverage on the basis of a
careful examination of the evidence before her and approved the enterprise agreement
accordingly. Her approach in this regard was proper and ought not to be subject to review and
her finding should not be displaced. That is, the Deputy President’s findings were reasonably
open to her, her findings of fact are unassailed, and there is no basis on which her findings
should be disturbed on appeal.
[221] It follows that the appeal should not be allowed on public interest grounds, and the
appeal should be dismissed (in any event). The Agreement as approved by the Deputy
President should be permitted to operate on its terms.
SENIOR DEPUTY PRESIDENT
[2014] FWCFB 5643
55
Appearances:
E. Dalgleish for The Australasian Meat Industry Employees Union.
D. Williams and P. Zielinski for Teys Australia Beenleigh Pty Ltd.
Hearing details:
2014.
Brisbane:
5 June.
Printed by authority of the Commonwealth Government Printer
Price code G, AE407676 PR554404
Endnotes:
1 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 and Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013, [2014] FWCA 2453.
2 AE407676.
3 Fair Work Act 2009 (Cth), s.181(1).
4 Fair Work Act 2009 (Cth), s.182(1).
5 Fair Work Act 2009 (Cth), ss.186(2)(a) and 188.
6 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 at [92].
7 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449.
8 Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013, [2014] FWCA 2453.
9 (2011) 195 FCR 74.
10 Ibid at [79].
11 [2012] FWAFB 2206.
12 (1982) 149 CLR 337.
13 Ibid at 352.
14 (1993) 40 FCR 511.
15 Ibid at 518.
16 (1996) 66 IR 182.
17 Ibid at 184.
18 (2004) 219 CLR 165.
19 Ibid at 179.
20 (2005) 222 CLR 241.
21 (2006) 153 IR 426.
22 Ibid at 440.
23 (2006) 149 FCR 209.
24 Ibid at 222.
25 (2006) 151 FCR 513.
26 Ibid at 520.
27 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449.
28 Appeal Book at p.282.
[2014] FWCFB 5643
56
29 Appeal Book at p.283.
30 Appeal Book at p.282.
31 Appeal Book at pp.274-275.
32 Appeal Book at p.276.
33 Transcript in AG2013/8000 at PN527-PN528.
34 Transcript in AG2013/8000 at PN153. The printed transcript in AG2013/8000 at PN153 states: “Would you agree that
undertaking the role as trainee supervisor variously existing employment agreement with the employee? Yes, by
agreement, yes.” However, the oral recording of the proceedings indicates that instead of the word “variously” the
questioner used the words “varies the”.
35 Appeal Book at p.288.
36 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 at [89] to [92].
37 Ibid at [89] to [90].
38 Form F17 in AG2013/8000 at question 2.3.
39 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 at [66].
40 Appeal Book at p.117.
41 Appeal Book at p.284 and transcript in AG2013/8000 at PN472-PN477 and PN766-PN774.
42 Appeal Book at p.283.
43 Appeal Book at p.299.
44 PR938031.
45 Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 at [22].
46 The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, PR555611.
47 [2003] AIRC 1161.
48 Leigh Carpenter v Corona Manufacturing Pty Ltd [2002] AIRC 1562 at PN9.
49 Teys Australia Beenleigh Pty Ltd [2014] FWC 2449 at PN70.
50 Transcript of proceedings dated 5 June 2014 at PN31.
51 Teys Australia Beenleigh Pty Ltd [2014] FWC 2449 at PN71-74.
52 Transcript of proceedings dated 5 June 2014 at PN31.
53 [2012] FWAFB 2206 at PN19.
