1
Fair Work Act 2009
s.739—Dispute resolution
The Australasian Meat Industry Employees Union
v
Diamond Valley Pork Pty Ltd
(C2020/4387)
DEPUTY PRESIDENT COLMAN MELBOURNE, 1 OCTOBER 2020
Dispute arising under an enterprise agreement – part-time weekly hire – specified number of
hours each week – when overtime payable – interpretation of agreement – dispute determined
[1] This decision concerns an application made by the Australasian Meat Industry
Employees Union (union) under s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute
resolution procedure in clause 39 of the Diamond Valley Pork Pty Ltd and Australasian Meat
Industry Employees’ Union (Victorian Branch) Meat Processing Enterprise Agreement 2019
(Agreement).
[2] The dispute concerns certain casual employees of Diamond Valley Pork Pty Ltd
(company) who are eligible to be converted to part-time weekly hire positions, and the
conditions that would apply to them upon conversion. The union contends firstly that the
company has failed to convert the employees, contrary to the requirements of the Agreement.
Secondly, the union submits that, when they are converted to part-time, employees must,
under clause 5.2 of the Agreement, be provided with a fixed minimum number of weekly
hours, and that overtime is payable for all hours worked above this set number each week.
[3] The company says that it is willing to convert relevant employees, but that it wishes
first to resolve its disagreement with the union about the overtime payments to which part-
time weekly hire employees will be entitled. It contends that, under the Agreement, the
minimum weekly hours for part-time weekly hire employees is not fixed, but set from week to
week, and that overtime is payable above the numbers specified for any particular week.
[4] The union’s application was listed for conciliation however the matter did not resolve.
The parties agree that the Commission is authorised under clause 39 of the Agreement to
resolve the dispute. It is common ground that the present dispute is one ‘about a matter under
this Agreement’ (clause 39.1), and that the steps in the dispute resolution procedure required
to bring the dispute to the Commission have been taken. Clause 39.3 states that the parties
may agree on the process to be utilised by the Commission, including mediation, conciliation
and arbitration. The parties confirmed at the hearing that they agreed to the Commission
arbitrating the dispute. Clause 39.4 provides that where the matter in dispute remains
unresolved, the Commission may exercise any method of dispute resolution permitted by the
[2020] FWC 5286 [Note: This decision has been quashed - refer to Full
Bench decision dated 17 February 2021 [2021] FWCFB 532]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb532.htm
[2020] FWC 5286
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Act that it considers appropriate to ensure the settlement of the dispute. In light of the parties’
agreement that I resolve the dispute by arbitration, I consider that it is appropriate to do so.
Background
[5] The company operates a meat processing facility at Laverton North in Melbourne.
Many of its employees are casuals. The company and the union agree that a number of these
employees are, in principle, eligible to convert to part-time positions, pursuant to the
arrangements in clause 5.4 of the Agreement.
[6] The evidence of Mr Jarrod Jones, AMIEU organiser, was that following the approval
of the Agreement, the company sought expressions of interest from casual employees to
convert to permanent positions. Mr Jones said that on or about 3 February 2020 the company
sent a letter to all casual employees who had expressed an interest in converting to part-time
weekly hire positions, explaining the proposed conditions of employment. Mr Jones said that
he obtained a copy of the company’s letter and that he was concerned that it made no mention
of a fixed minimum number of weekly hours for part-time employees. Mr Jones contacted the
company to raise his concern. Certain discussions and correspondence then took place
between Mr Jones and representatives of the company. The company’s position was that the
Agreement did not require part-time weekly hire employees to have a fixed minimum number
of weekly hours of work, and that the minimum number of hours is determined from week to
week.
[7] The union and the company could not resolve their disagreement. By letter dated
6 February 2020, Mr Peter Christian, the company’s operations manager, advised casual
employees and the union that the company would not be proceeding with the ‘transition to
permanent’ that had been planned for that week. In his letter, Mr Christian stated that
‘unfortunately we have been unable to reach agreement with your union representatives on
how we will apply these provisions and will continue discussions so that everything is clear
before we go further.’ The letter further stated: ‘Sorry for any inconvenience that may arise
and I assure you that we will make every effort to resolve this issue as soon as we can.’ None
of the casuals in question have yet to be converted to part-time weekly hire employment.
[8] The union subsequently lodged its application under s 739, which led to further
discussions, both in conciliation before the Commission, and directly between the parties, but
these did not lead to a resolution.
The terms of the Agreement
[9] Clause 5.2 of the Agreement deals with part-time weekly hire employees. It provides
as follows:
“5.2. Part Time Employment
a) An employee with part time employment is known as a Part Time Employee.
b) A Part Time Employee is engaged by the week as a part time weekly hire employee
to work on a regular basis less than 38 Ordinary Hours of Work and with a
specified minimum number of hours each week.
[2020] FWC 5286
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c) A Part Time Employee will accrue leave on a pro-rata basis based on the specified
number of hours worked each week.
d) A Part Time Employee will be provided with a minimum of four hours work or be
paid for a minimum of four hours on any day they are required to work.
e) The Company will advise a Part Time Employee by the Friday before the next
working week of the pattern of work to be worked by the Part Time Employee.
f) All time worked in excess of the hours as mutually agreed will be overtime.”
[10] Clause 5.4 deals with the possibility of casual employees converting to part-time or
full-time employment. Among other things, the clause provides that, after 12 months’
continuous employment, a casual employee is eligible to request that their employment be
converted to permanent part-time or full-time employment (clause 5.4(a)). To be eligible, a
casual must during the 12 month period have been working a pattern of hours which could,
‘without significant adjustment’, be performed by a full-time or part-time employee. The
request must be in writing, and the company can only refuse ‘on reasonable business grounds’
(clause 5.4(c), (d) and (e)). Any grounds of refusal must be ‘based on facts that are known or
reasonably foreseeable’ (clause 5.4(g)). Where it is agreed that a casual employee will
convert, the company and the employee must discuss and record in writing the form of
employment to which the employee will convert (clause 5.4(j)).
Submissions of the parties
[11] The union’s position is as follows. First, it contends that the company has failed to
comply with clause 5.4 of the Agreement by not considering eligible casual employees for
conversion to part-time employment. It says that the company is not excused from its
obligations under that provision by the fact that the overtime arrangements for part-time
employees are the subject of a disagreement between the company and the union.
[12] Secondly, the union contends that clause 5.2(b) makes it clear that part-time
employees are engaged by the week to work on a regular basis, working less than 38 ordinary
hours per week, and with a specified minimum number of hours each week. The union
submits that the specified minimum number of hours is a fixed number that does not vary
from week to week. It also says that the average hours worked by a casual employee over the
preceding 12 months forms the basis for the employee and the employer to agree on what the
fixed minimum number of weekly hours should be.
[13] The union contends that clause 5.2(e), which states that the company will advise a
part-time employee by the Friday before the next working week of the ‘pattern of work’ for
that week, is not concerned with the number of hours that will be worked the following week.
The company can roster as it sees fit, provided it observes the fixed minimum number of
hours, and complies with clause 5.2(d), which provides that an employee must be provided
with a minimum of four hours work on any day that they are required to work.
[14] The union further submits that, as a consequence of its interpretation that the
‘specified minimum number of hours each week’ is fixed, it follows that all hours worked by
part-time employees beyond this set number must be paid at overtime rates. In this regard,
clause 5.2(f) provides that ‘all time worked in excess of the hours as mutually agreed will be
[2020] FWC 5286
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overtime’. The union says that the ‘mutually agreed’ hours are the fixed minimum weekly
hours that employees are contracted to work, which is determined when the employee
commences part-time employment. The union contends that clause 5.2(f) of the Agreement
was taken from the Meat Industry Award 2010 (2010 Award) and was initially given as an
undertaking in support of the application for approval of the enterprise agreement that
preceded the current Agreement, after the Commission raised a concern that the agreement
might not otherwise pass the ‘better off overall test’ (BOOT).
[15] To resolve the dispute, the union asks the Commission to determine that the company
must convert relevant casuals to part-time positions; that it must provide part-time weekly
hire employees with a fixed minimum number of hours of work each week (the fixed number
applying to all weeks); and that the company must pay overtime to an employee who works in
excess of that fixed minimum number of hours in any week.
[16] The company contends firstly that it has not failed to meet its obligations to consider
and reasonably respond to requests from eligible employees to convert to weekly-hire
positions. It says that it is more than willing to convert casual employees to part-time weekly
hire status but wishes to do so on terms that are agreed with the union.
[17] Secondly, the company submits that clause 5.2 of the Agreement requires a minimum
number of hours to be set for employees from week to week, consistent with the status of a
part-time weekly-hire employee. It says that the only fixed minimum hours requirement is
that specified in clause 5.2(d), which states that employees must be provided with four hours
of work on any day that they are required to work. The company submits that, under clause
5.2, the company and part-time weekly hire employees agree on the hours of work from week
to week, and where in a particular week the hours worked are more than those agreed, the
additional hours are paid at overtime rates.
Requirement to convert casuals to part-time
[18] First, as to the question of whether the company has failed to meet its obligations
under clause 5.4 to consider requests and convert casuals to part-time employment, I do not
consider that there is sufficient evidence before the Commission for me to conclude that the
company has not met its obligations. The company’s letter of 6 February 2020 to casual
employees withdrew the proposal to convert them to permanent part-time status the following
week. However, accepting for the moment that the letter of 6 February 2020 constituted a
refusal to consider requests from eligible casual employees, there is no evidence about which
employees requested to be converted to part-time employment, why they are eligible to be so
converted, or whether any constructive refusal by the company to convert them was
unreasonable.
[19] I appreciate that the union contends that the withdrawal of the company’s proposal in
February has resulted in a situation where casuals who might otherwise by now have
converted to part-time employment have not done so. That may be so, but it does not
necessarily mean that the company has failed to observe its obligations under the Agreement.
[20] I note however that the union is quite correct to say that the absence of an agreed
position between the company and union would not of itself be an acceptable reason for the
company not to convert eligible employees to part-time weekly hire employment.
[2020] FWC 5286
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[21] The union contended that the company’s failure to convert eligible casual employees
to part-time employment, or at least to consider their requests, also amounted to a failure to
meet its obligations under s 65 of the Act to consider requests for flexible working
arrangements. But again, there is insufficient evidence of the relevant requests or the
satisfaction of the relevant circumstances referred to in that section to enable me to form any
conclusions about this contention.
Specified weekly hours and overtime for part-time weekly hire employees
[22] The fundamental point of disagreement between the parties concerning the working
arrangements for part-time weekly hire employees under the Agreement is that the union
considers the ‘specified minimum number of hours each week’ referred to in clause 5.2(b) to
be a fixed minimum number for all weeks, agreed with employees upon the commencement
of their part-time employment. The company’s interpretation is that the minimum number is
set from week to week. In my opinion, the company’s interpretation of the clause is correct.
[23] Clause 5.2 concerns part-time weekly hire employees, not part-time employees
generally. Clause 5.2(b) clearly states that a part-time employee is ‘engaged by the week as a
part-time weekly hire employee’. These words must be given meaning. The union
acknowledged that its interpretation did not give these words any particular work to do. The
proper meaning of ‘engaged by the week as a weekly hire employee’ is that each week there
is a new engagement, and that an employee is hired for that week. The working arrangements
for a new week are agreed afresh. An employee might reject the proposed arrangements for a
particular week, in which case there may or may not be an alternative offer from the
company. Whatever is proposed and agreed for a given week however, clause 5.2(d) requires
that an employee be provided with a minimum of four hours work or be paid for a minimum
of four hours on any day they are required to work. The words ‘specified minimum number of
hours each week’ referred to in clause 5.2(b) means ‘from week to week’, not a fixed weekly
number of hours that applies to all weeks.
[24] If it had been intended that the company and the employee agree, on the
commencement of part-time employment, to a fixed number of minimum hours of work for
all weeks, the Agreement could simply have said so. It is common to find such provisions in
awards and enterprise agreements. But clause 5.2 of the Agreement makes no reference to the
company and the employee agreeing, on commencement of part-time weekly hire
employment, on standing working arrangements. That is because the clause is concerned with
weekly hire part-time employment. The purpose of weekly-hire employment is to be
responsive to variability in volumes of work. It would be inconsistent with this purpose for
weekly minimum hours to be fixed. The company explained at the hearing that it is a ‘toll’
facility, processing its customers’ product, and that its labour requirements depend upon its
customers’ orders. The union contended that the company has a large amount of work and
that its business has been expanding in recent times. But it did not dispute the nature of the
company’s business. In my view, it is not surprising that a toll meat processing facility would
have, as part of its employment framework, a weekly hire employment arrangement.
[25] The union contended that it is necessary to consider the casual conversion provision in
clause 5.4, which states that an employee will only be eligible for conversion if during the 12
month period they have been working a pattern of hours which could, ‘without significant
adjustment’, be performed by a full-time or part-time employee. The union said that this
presupposes that it will indeed be possible to fix standard hours, and for these to be set on a
[2020] FWC 5286
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standing basis pursuant to clause 5.2(b). I do not accept this contention. Clause 5.4 makes no
assumption that it will be possible to fix standard hours. It concerns conversion to part-time
employment ‘without significant adjustment’. The ‘pattern’ of work referred to in clause 5.4
might be one of variability. It might show low hours in some weeks and high numbers in
others, but nevertheless a sufficient volume over the long term to justify conversion. A pattern
will not necessarily be born out over a week, or from week to week. It might only be apparent
over months. There is nothing in clause 5.4 to suggest that conversion to part-time
employment will warrant a fixed and unchanging number of minimum weekly hours under
clause 5.2.
[26] The union submitted that the 12 month period leading up to conversion to part-time
would provide the starting point for the company and the employee to determine the fixed
weekly hours, and that they could simply ascertain the average hours over the preceding year.
But this would almost inevitably involve a departure from any pattern that had established
itself over the 12 month period and remove from the company the variability in weekly
rostering it had previously possessed, thereby resulting in the need for a ‘significant
adjustment’ (see clause 5.4(b)). It would in my view tend to result in the casual employee not
being eligible for conversion. Of course, in a particular case, it is possible that an employee
might work a weekly pattern over 12 months, and that this pattern could indeed be reflected in
a part-time arrangement that was very regular. But that would not mean that the company was
required to enter into a standing arrangement. The meaning of clause 5.2(b) is not determined
by this hypothetical situation.
[27] In my opinion, the words ‘specified minimum number of hours each week’ in clause
5.2(b) mean a specified number for each week, from week to week. These hours are agreed
between the employer and the employee each week. The employer offers them and the
employees either accept or reject them. If in any week a part-time employee works hours in
excess of the minimum number specified for that week, which are the ‘hours as mutually
agreed’ for the purpose of clause 5.2(f), overtime is payable for those additional hours.
[28] Mr Jones gave evidence that, if the company had made clear its position in
negotiations for the Agreement that there would be no fixed minimum number of weekly
hours for part-time employees, there would have been no agreement at all and the union
would have proceeded with its plans at that time to engage in protected industrial action in
support of its bargaining claims. However, a party’s subjective belief about the meaning of a
particular provision is not relevant to the interpretation of that provision. It is the objective
meaning of the clause that must be ascertained.
[29] Mr Jones said that the company’s interpretation results in part-time employment
conditions under the Agreement being less favourable than those of the previous agreement. I
do not see how this is relevant to the interpretation of the Agreement because enterprise
bargaining often involves trade-offs. It is not the case that every provision must stay the same
or bring about improvements for employees. But in any event, the union’s argument does not
appear to be correct. The Enterprise Agreement Diamond Valley Pork Pty Ltd Meat
Processing 2017 (2017 Agreement) contained a provision stating that a ‘part-time weekly
hire’ employee is ‘engaged by the week to work on a regular basis less than the ordinary
hours of work and on a specified minimum number of days each week’ (5.3(a)). There was no
mention of specified weekly hours. The only minimum hours requirement was that an
employee be provided with at least four hours of work on any day the employee was required
to work (clause 5.3(c)), and that clause is also found in the Agreement.
[2020] FWC 5286
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[30] The union contended that, on the company’s interpretation of the part-time clause, the
Agreement would not have passed the BOOT in respect of part-time employees, measured
against the 2010 Award which applied at the time. The BOOT is a global test undertaken by a
Commission member at the ‘test time’ (when the application for approval of the agreement
was lodged), and a proceeding under s 739 cannot properly entail a reconsideration of the
BOOT or any of the other approval requirements for an application under s 185. But I accept
for the moment the proposition that one might not favour an interpretation that would appear
to result in a class of employees demonstrably being worse off under an enterprise agreement
than the award that was applicable for the purpose of the BOOT.
[31] Clause 13.3 of the 2010 Award stated that a part-time employee would agree with the
employer on a regular pattern of work specifying at least the hours worked each day, the days
of the week the employee will work, the actual starting and finishing times of each day, and
with a minimum daily engagement of four hours. However, clause 13.4 stated that these
arrangements did not apply to a ‘meat processing establishment’, such as the company’s,
except in respect of sales employees. Clause 13.3 therefore had no application to the
employees who are the subject of the present application. Clause 14 of the 2010 Award made
arrangements for ‘daily hire’ and ‘part-time daily hire’ employees. There was no provision for
part-time weekly hire employees, or for any minimum weekly hours of work for part-time
employees. I do not see any basis for the union’s contention that, on the company’s
interpretation, the Agreement would have failed the BOOT against the 2010 Award in respect
of weekly hire part-time employees.
Conclusion
[32] In relation to the first matter raised for determination, I have concluded that there is
insufficient evidence to conclude that the company had not met its obligations to convert
eligible casual employees to part-time weekly hire positions. However, the union is correct to
say that the absence of an agreed position between the company and the union would not of
itself be an acceptable reason not to consider requests and make conversions where
appropriate.
[33] Secondly, in my opinion the words ‘specified minimum number of hours each week’
in clause 5.2(b) mean a specified number for each week, not a fixed number for all weeks.
The specified hours are agreed between the company and part-time employees each week,
consistent with the weekly hire nature of their employment. The company offers the specified
hours and employees either accept or reject them. If in any week a part-time employee works
hours in excess of the minimum number specified for that week, which are the ‘hours as
mutually agreed’ for the purpose of clause 5.2(f), overtime is payable for those additional
hours.
THE SEAL OF THE F NOISSI
[2020] FWC 5286
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DEPUTY PRESIDENT
Appearances:
J. Jones for the Australasian Meat Industry Employees Union
P. Christian for Diamond Valley Pork Pty Ltd
Hearing details:
2020
Melbourne (by telephone)
25 September
Printed by authority of the Commonwealth Government Printer
PR723268
