Amcor Packaging (Australia) Pty Ltd t/as Amcor Fibre Packaging Australasia v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2010] FWA 2738
•9 APRIL 2010
[2010] FWA 2738 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Amcor Packaging (Australia) Pty Ltd t/as Amcor Fibre Packaging Australasia
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2009/10700)
AMCOR FIBRE PACKAGING NATIONAL ENTERPRISE AGREEMENT 2007
(AC313405)
Timber and paper products industry | |
COMMISSIONER BLAIR | MELBOURNE, 9 APRIL 2010 |
Alleged dispute regarding the use of fixed-term employees.
[1] This matter came to Fair Work Australia (the Tribunal) by way of an application under s.739 of the Fair Work Act 2009 (the Act), an application to deal with a dispute. The applicant in the matter is Amcor Packaging (Australia) Pty Ltd trading as Amcor Fibre Packaging Australasia (the Company) and the respondent in the matter is the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Union).
[2] The matter in dispute is in relation to the Amcor Fibre Packaging National Enterprise Agreement 2007 (the 2007 Agreement) and revolves around the claim by the Company that it is able to use fixed term employees without applying 25% casual loading. The matter has been subject to a number of conciliation conferences, however the parties were unable to resolve their differences and the matter was set down for arbitration on 29 March 2010.
[3] Both parties complied with the Directions issued by the Tribunal in relation to outlines of argument and witness statements.
[4] The history of the matter is as follows:
[5] The Company and the Union, with its members, have met since June 2009 to discuss the engagement of fixed terms contractors to cover absences of full time employees absent for long periods due to illness or injury.
[6] The Company states that although verbal agreement was reached between the Company and the Union on 30 September 2009 to commence engagement of fixed term contractors this was not acted upon at site level and the parties therefore remain in dispute.
[7] The proposal by the Company is as follows:
[8] The Company states that there are 11 long term absences due to illness or injury at the Scoresby plant out of a total of 19 employees who are either absent or on restricted duties. All absences until recently have been covered using existing staff by use of overtime. Six new full time staff were engaged recently as the Company could not sustain the cost of the overtime.
[9] The Company states that full time ongoing employment is not their preferred form of cover for long term absences.
[10] The Company states that the cost of overtime is unsustainable and unreasonable.
[11] The Company also states that they understand that it is the loss of overtime that motivates the refusal to allow the use of fixed term employees. The Company believes that the use of fixed term employees for coverage of long term absences is provided for under the 2007 Agreement and they state that the term was negotiated cognisant of the income protection scheme provided by the Company which provides employees who are ill or injured with up to two years’ wages.
[12] The Company believes that there is an immediate need to engage three employees for fixed term period to cover long term absences. There may be an additional two employees who may require coverage on a fixed term basis in the near future.
[13] The clause that the parties are in dispute over is clause 10 of the 2007 Agreement, Casual Employees. It is the Company’s view that the heading should not be used to vary the plain meaning of the body of the clause, in particular clause 10(e) of the 2007 Agreement, which states:
“Where an employee is absent for a known term, such as parental leave, Workcover etc, an employee may be engaged to fill that position for that fixed term provided that:
i) The term will not exceed 12 months;
ii) The replacement employee is advised in writing of their termination date on appointment;
iii) The initial term may be extended by agreement with the elected employee representative. This agreement will not be unreasonably withheld.”
[14] The Company’s position is that clause 10(e) was first included in the AMCOR Fibre Packaging National Enterprise Agreement 2004 (the 2004 Agreement) to address the anticipated increase in long term absence due to the introduction of the income protection scheme.
[15] The Company’s contention is that clause 10(e) does not refer to casual employees as the balance of the clause in clause 10 does. In addition clause 10(e) was internally inconsistent with the balance of clause 10 if it is read as referring to casual employees.
[16] The Company’s argument is that clause 10(b) restricts the use of casual employees to a period of 13 weeks (or a maximum of 26 weeks if an extension is agreed). Clause 10(c) prohibits the re-engagement within a three month period of that employee as a casual (or a fixed term employee) after the initial engagement ends. The Company argues that this is also inconsistent with 10(e) if it is said to apply to casual employees.
[17] It is the Company’s contention that the employee engaged on a fixed term basis in accordance with clause 10(e) is not entitled to 25% loading in accordance with clause 10(a) as this only applies to casual employees. Those employees engaged for a fixed term under clause 10(e) of the 2007 Agreement are entitled to accrue leave as full time employees in accordance with the 2007 Agreement and the National Employment Standards.
[18] The Company’s further contentions are that if the heading “Casual Employees” is found to create uncertainty or ambiguity, the Company believes that clause 10 should be varied pursuant to s.217 of the Act in favour of the Company’s interpretation to either amend the heading to read “Casual and Fixed Term Employees” or by creating a new clause 10(a) “Fixed Term Employees” which incorporates 10(e) and deleting 10(e) from clause 10 “Casual Employees”.
[19] The Union, for its part, states that the 2007 Agreement is in two parts: Part A and Part B. Part B consists of the terms of the Graphic Arts – General – Award 2000 (the Award) with minor modifications to remove prohibited content. Part A prevails over Part B to the extent of any inconsistency.
[20] Clause 10 of Part A provides as follows:
“10. Casual Employees
(a) Casual employees may supplement the existing permanent workforce in accordance with the clause. Casual employees will be entitled to an additional 25% of the rate prescribed for such work. This provision is not intended to undermine permanent employment at each site.
(b) Casual employees may be engaged for a continuous period up to thirteen (13) weeks. Prior to the expiration of the initial terms, the Company may opt to:
(i) appoint the casual as a weekly employee upon the expiration of the 12th week, or
(ii) terminate the engagement, or
(iii) by agreement with the elected employee representative extend the initial term for a period (not more than thirteen weeks). This agreement will not be unreasonably withheld.
(c) After the initial term that casual will not be re-engaged and the position will not be filled by another casual/fixed term employee within the following three month period.
(d) A casual employee must not be engaged and re-engaged to avoid any obligation under this Agreement.
(e) Where an employee is absent for a known term, such as parental leave, Workcover etc, an employee may be engaged to fill that position for that fixed term provided that:
(i) The term will not exceed 12 months
(ii) The replacement employee is advised in writing of their termination date on appointment
(iii) The initial term may be extended by agreement with the elected employee representative. This agreement will not be unreasonably withheld.”
[21] The Union states that Part B of the 2007 Agreement provides clause 4.1, Employment Categories. Clause 4.1.1 states:
“4.1.1 Employees must be engaged on a full-time or regular part-time basis, or on a casual basis. No person will be employed except as a weekly employee or a casual employee.”
[22] Clause 4.1.4, Casual employment, provides definitions of the employment categories.
“4.1.4 Casual employment
4.1.4(a) An employer when engaging a person for casual employment must inform them then and there that they are to be employed as a casual.
4.1.4(b) Irregular casual employment
4.1.4(b)(i) An irregular casual employee is a casual employee who is engaged to perform work on an intermittent or irregular basis or to work uncertain hours or to replace a weekly employee who is rostered off or absent due to sickness.
4.1.4(b)(ii) Irregular casual employment is a different form of employment to full-time and part-time casual employment.
4.1.4(c) Full-time and part-time casual employment
4.1.4(c)(i) A full-time casual employee is a casual employee, other than an irregular casual employee under 4.1.4(b), who is engaged to work on a continuous basis from week to week the same number of ordinary hours as the full-time employees in the relevant establishment.
4.1.4(c)(ii) A part-time casual employee is an employee, other than an irregular casual employee under 4.1.4(b), engaged to work on a continuous basis from week to week a fixed number of ordinary hours which are less than the hours worked by the full-time employees in the relevant establishment.
4.1.4(c)(iii) No employee will be engaged as a full-time casual employee or part-time casual employee on a continuous basis from week to week for more than twelve weeks, unless a further maximum period of up to twelve weeks is agreed to between the employer and the employee concerned.
4.1.4(c)(iv) An employee must not be engaged and re-engaged as a casual under 41.4(c) to avoid any obligations under this agreement.
4.1.4(c)(v) The agreement to extend the period of casual employment is to be recorded in the time and wages record. This agreement is subject to level 1 facilitation. Where the maximum agreed period is exceeded or where no record of agreement occurs, a casual employee employed for more than twelve weeks is a full-time or part-time employee depending upon the number of hours worked each week.
4.1.4(d) If a casual employee commences duty or is required to attend for duty and actually attends for duty for the period required by the employer, such employee must be paid the appropriate rate provided in this subclause for four hours at the least.
4.1.4(e) A casual employee must be paid at the hourly rate prescribed for a full-time employee for such work with the addition of 25%. When working shifts casual employees will be entitled to the same shift allowance as weekly employees. When a casual employee becomes a full-time or part-time employee pursuant to 4.1.4(c)(v), the 25% casual loading will no longer be payable.”
[23] The Union’s further argument is that looking at the construction of the 2007 Agreement, clause 10 of Part A modifies the position under Part B of the 2007 Agreement in one important way: it allows for fixed term casuals to be used for periods exceeding 24 weeks allowed in clause 4.1.4(c)(iii) of Part B. The notion of fixed term casual employment is not inconsistent with the terms of Part B, which provides at clause 4.1.4(b) for irregular casual employment and at clause 4.1.4(c) for full time and part time casual employment.
[24] Further, the Union argues that the relevant provision of the current agreement is taken from clause 12 of the predecessor agreement, the 2004 Agreement. The Union argues that the evidence that will provided establishes that the practice at the Company sites under the 2004 Agreement was for fixed term casuals to be paid the casual loading.
[25] The Union further argues that Amcor has, in the past, used labour hire employees as fixed term casuals at the same rate as employees. The Company has paid such fixed term casuals 25% loading under those instruments.
[26] The Union further states that the facts are:
“(a) true fixed term employment has historically not been a feature of the industry as is evident from the Award;
(b) the parties behaved under the 2001 and 2004 Agreements as though the casual loading was payable to fixed term casuals; and
(c) the relevant part of the clause was maintained in the 2007 Agreement.”
[27] It is the Union’s view that the facts indicate that the parties intended the terms of the 2007 Agreement to maintain existing arrangements whereby fixed term casuals are entitled to casual loading.
[28] Finally, the Company states that the submissions of the Union and the statements filed on behalf of the Union by email on Friday 19 March 2010 seek to re-characterise the dispute to be arbitrated.
[29] The Company alleges that the dispute is not about the requirement to pay 25% casual loading. The dispute filed by the Company 14 October 2009 relates to the refusal of the Union, the Father of the Chapel and the employees involved who are employed at the Amcor Fibre Packaging site at Scoresby, Victoria to allow the Company to engage fixed term employees in accordance with 10(e) of the 2007 Agreement. The Company seeks an interpretation by the Tribunal of the 2007 Agreement as it relates to fixed term employees.
Conclusion
[30] The Tribunal, having reviewed clause 10, Casual Employees, of the 2007 Agreement and taking into account the evidence provided to the Tribunal and the respective arguments of the parties, is of the view that the Company’s interpretation of clause 10(e), in that it is entitled to employ fixed term employees who will accrue all entitlements and not be entitled to a 25% loading is not correct.
[31] The Tribunal comes to this view for the following reasons:
[32] In looking at clause 4.1 Employment Categories, there are only three categories identified. They are full time or regular part time or on a casual basis. No mention is made of fixed term employees. Clause 4.1 then goes on to provide definitions for irregular casual employees, full time and part time employees and part time casual employees. Nowhere under clause 4.1 is the term fixed term employee provided for.
[33] When one looks carefully at the wording of clause 10(e), it states in part:
“Where an employee is absent for a known term, such as parental leave, Workcover etc, an employee may be engaged to fill that position for that fixed term provided that:
i) The term will not exceed 12 months;
ii) The replacement employee is advised in writing of their termination date on appointment;
iii) The initial term may be extended by agreement with the elected employee representative. This agreement will not be unreasonably withheld.”
[34] The use of the words “for that fixed term” in clause 10(e) relates to the period that the employee was intending to be absent. The use of the term “fixed term” relates to the period not the individual employee.
[35] Given that clause 4.1 Employment Categories only provides for employees to be employed in three particular categories, the term “fixed term employee” does not fit within any of the definitions provided for and therefore, under the 2007 Agreement, does not exist.
[36] Accordingly, the Tribunal would determine that the only category of employee that the Company can employ are those identified in clause 4.1 of the 2007 Agreement which does not include “fixed term employee”.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, AC313405 PR995814>
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