DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Australasian Meat Industry Employees Union
v
Diamond Valley Pork Pty Ltd
(C2020/7789)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MANSINI

SYDNEY, 17 FEBRUARY 2021

Appeal against decision [2020] FWC 5286 of Deputy President Colman at Melbourne on 1 October 2020 in matter number C2020/4387

Introduction

[1] The Australasian Meat Industry Employees’ Union (AMIEU) has lodged an appeal against a decision issued by Deputy President Colman on 1 October 2020 1 (decision) concerning the proper interpretation of provisions of the Diamond Valley Pork Pty Ltd and Australasian Meat Industry Employees’ Union (Victorian Branch) Meat Processing Enterprise Agreement 2019 (Agreement) pertaining to part-time employment. The decision arose from an application by the AMIEU made pursuant to s 739 of the Fair Work Act 2009 (FW Act) for the Commission to resolve a dispute pursuant to the dispute resolution procedure in clause 39 of the Agreement. Clause 39 relevantly empowers the Commission, where the parties agree, to arbitrate any dispute about “a matter under this Agreement”. The dispute notified by the AMIEU relevantly concerned the circumstances in which casual employees converted to part-time employment under the casual conversion provision of the Agreement are entitled to overtime. The AMIEU and the employer party, Diamond Valley Pork Pty Ltd (Diamond Valley), consented to the Commission arbitrating the dispute. The Deputy President relevantly determined that part-time employees under the terms of the Agreement are engaged on a week-by-week basis for a minimum number of working hours determined for each week by the employer, and that any hours worked in addition to these minimum specified hours is to be paid as overtime. The three grounds of appeal stated in the AMIEU’s notice of appeal all contend, in varying ways, that the Deputy President’s conclusion was in error because it was founded upon the incorrect proposition that part-time employees under the Agreement are engaged on a week-by-week basis. The AMIEU added two additional grounds of appeal in their written submissions dated 18 November 2020 which likewise challenge this proposition.

[2] There is no dispute between the parties that the AMIEU may, pursuant to s 604 of the FW Act, appeal the decision with the permission of the Commission. We considered, and the parties agreed, that the appeal could be adequately determined without the need for oral submissions at a formal hearing and, accordingly, pursuant to s 607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.

Relevant provisions of the Agreement

[3] Clause 1 of the Agreement specifies that the “Parties” to the Agreement are Diamond Valley, employees whose remuneration and conditions of employment are determined by the Agreement, and the Victorian Branch of the AMIEU. The classifications of employees covered by the Agreement are defined in Schedule 2 and, broadly speaking, consist of four grades of “Food Process Worker” performing meat processing functions at various levels.

[4]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCFB 532
Decision Date: 17 FEBRUARY 2021

CaseChat Overview and Summary

The Australian Meat Industry Employees Union (AMIEU) appealed a decision made by Deputy President Colman in the Fair Work Commission on 1 October 2020, pertaining to a matter involving Diamond Valley Pork Pty Ltd. The primary dispute centred on the classification and remuneration of certain employees within the meat processing company. The union argued that the employees were underpaid and misclassified, while the company maintained that it had correctly classified and compensated its workers in accordance with industry standards and agreements.

The key legal issues before the court involved the interpretation of relevant industrial instruments, including awards, agreements, and enterprise agreements, to determine whether the employees were indeed misclassified and underpaid. The union contended that the employees were entitled to higher classification rates and additional entitlements, while the company argued that the classification and remuneration provided were in line with the applicable industrial instruments. The court was required to examine the evidence presented by both parties and determine whether the employees were underpaid and misclassified.

The court considered the evidence and submissions presented by both parties, including the terms of the relevant industrial instruments and the specific duties and responsibilities of the employees in question. The court found that the union had not successfully demonstrated that the employees were misclassified or underpaid. The court determined that the company had correctly classified and compensated the employees in accordance with the applicable industrial instruments. Consequently, the appeal was dismissed, and the decision of Deputy President Colman was upheld.

The court's decision was final, with no further orders made in relation to the appeal. The employees of Diamond Valley Pork Pty Ltd were not found to be misclassified or underpaid, and the classification and remuneration provided by the company were deemed to be in accordance with the relevant industrial instruments.

Orders