Asahi Beverages Pty Ltd v United Voice
[2019] FWC 5561
•9 AUGUST 2019
| [2019] FWC 5561 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Asahi Beverages Pty Ltd
v
United Voice
(C2018/6115)
DEPUTY PRESIDENT DEAN | SYDNEY, 9 AUGUST 2019 |
Application to deal with a dispute – whether employees can refuse to undertake training
[1] Asahi Beverages Pty Ltd (Asahi or the Company) has filed an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute in accordance with the dispute settling procedure (clause 8) of the Asahi Beverages Huntingwood (NSW) Enterprise Agreement 2017 (the 2017 Agreement).
[2] Asahi is in dispute with employees at its Huntingwood site who are members of United Voice. The core of the dispute is identified by Asahi in the application as follows:
“1. The dispute relates to sub-clause 15.1.8 of the Asahi Beverages Huntingwood (NSW) Enterprise Agreement 2017 (the Agreement), in particular the extent to which an employee covered by the Agreement can be required to undertake training.
2. All employees currently covered by the Agreement are classified as Grade 5 (Senior Multi-skilled or Specialist Trades) in accordance with the Classification Structure outlined in Attachment A of the Agreement. There are currently no employees engaged at any other classification level.
3. On occasions, employees have refused to undertake training on the basis that clause 15.1.8 does not require them to do so. The impact of this refusal is that employees are not maintaining their skills to the required level of a Grade 5 employee and are unable to rotate between machinery. This has significant operational and occupational health and safety impacts because it prevents other employees rotating between tasks.”
[3] There is no issue that the Commission has jurisdiction to deal with the matter in dispute and that the resolution of the dispute turns upon the interpretation of particular provisions in the 2017 Agreement.
[4] The matter was heard in Sydney on 10 April 2019. Ms K Aistrope of Australian Industry Group appeared for Asahi, and Mr C Acev appeared for United Voice. Evidence was given by Ms R Cluning for Asahi and Mr G Campbell and Mr S Mohan for United Voice.
Issue to be determined
[5] Prior to the hearing both parties provided a set of questions which they contended the answers of which would determine the dispute. Following further discussions with the parties I am satisfied that answering the following question will determine the dispute between the parties:
“Can employees classified at Grade 5 (Senior Multi-skilled) be required to undertake training to perform any processes they are not currently trained in or do not currently perform (including working on different machines)?”
[6] For the reasons set out below, I find that the question should be answered in the affirmative.
[7] In reaching my conclusion, I have had regard to the principles applicable to the construction of an enterprise agreement which were enunciated in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd1 (Golden Cockerel)and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited2(Berri).
Background
[8] The Company’s operations at the Huntingwood site (the Site) produce carbonated beverages, alcohol and water which are bottled/canned and packaged for distribution. In the production of those products, employees are engaged in the following production lines:
a. Water line (referred to as the HB1 line);
b. PET bottling line (referred to as the HB2 line);
c. Glass bottling line (referred to as the HB3 line);
d. Canning line (referred to as the HB4 line);
e. ‘bag in box’ (referred to as the BIB line) which produces post mix products.
[9] The HB1 line was introduced in 2017 and requires 24/7 operation. A group of employees were hired in 2017 specifically to operate this line. These employees have specific roster provisions and are required to have a trade or engineering qualifications.
[10] Other manufacturing employees who perform work on each of the other lines may be required to perform work on HB1 only where they acquire the necessary skills and volunteer.
[11] The Site includes a receivables area where raw and packaging materials are received and a syrup room where the syrup is produced to be used on the production lines. The non-HB1 manufacturing employees also perform work in these two areas including:
a. Syrup making /batching of syrup;
b. Operating depalatising equipment to supply glass bottles and cans to fillers;
c. Operating fillers that fill finished product into bottles/cans/bags;
d. Operating labelling equipment;
e. Operating packaging equipment;
f. Operating palletising equipment and;
g. Forklift operation moving products from the line to warehouse.
[12] All manufacturing employees at the Site are required to have fork lift licences and are responsible for safe operation, quality assurance, CILs (cleaning, inspection and lubrication) of equipment, trouble shooting, housekeeping and recording of equipment down time.
[13] The 2017 Agreement covers manufacturing and trades employees of Asahi. Also relevant to this dispute are three predecessor agreements: Cadbury Schweppes Huntingwood Site Employees Union Collective Agreement 2007-2010 (2007 Agreement) Schweppes Australia Pty Ltd Huntingwood NSW Enterprise Agreement 2010-2013 (2010 Agreement) and Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013-2016 (2013 Agreement).
[14] As noted above, all employees presently covered by the 2017 Agreement are classified at Grade 5. The current classification structure was introduced when the 2010 Agreement came into operation. Prior to this, employees were classified at a range of levels between Operators Level 1 and 4.
[15] The Company complains that situations arise where the BIB and HB3 lines have had to cease operation because there are insufficient manufacturing employees who are able to operate the machines to cover absences. The Company asserts that the reason for this is that some employees can only operate one machine on a particular line and have refused to be trained on other machines, particularly those machines that are regarded as critical to product quality such as BIB, Syrup Room and Fillers. It is the Company’s view that Grade 5 ‘Senior Multi-skilled’ employees must be capable of operating multiple machines across a line as well as being capable of working on other lines, and accordingly must participate in training necessary to meet these requirements.
Relevant provisions
[16] Central to the dispute is the interpretation of clause 15.1 of the 2017 Agreement which provides:
15.1. Classification Structure
15.1.1. Attachment A of this Agreement sets out the classification structure grading that all Schweppes, Huntingwood permanent employees covered by this Agreement, will work to. The Classification Structure will be effective from the date this Agreement is signed.
15.1.2. Management and employees are committed to working together over the next 12 months to agree on the training requirements for each of the grades within the structure and the processes to ensure current and new employees are adequately trained and graded.
15. 1.3. Classification structure and point system information from previous Agreement will be referenced when putting together future supporting processes.
15.1.4. The introduction of this revised Grading structure is intended to:
• Ensure the site has the skills and capability to successfully deliver on its business requirements;
• Ensure that employees who want a career path and opportunity to grow and develop can do so;
• Ensure that employees who don't want to progress their career are not financially disadvantaged; and
• Ensure job security for all employees by creating opportunities for the Huntingwood site to expand.
15.1.5. The Business commits that all current permanent Schweppes Huntingwood EA employees will continue to receive their current level of remuneration and will continue to receive annual EA increases.
15.1.6. Employees who commenced prior to November 2010 will retain their hourly pay rate without modification and will not be graded lower than Grade 5 in the new classification structure, unless such change is accepted by a vote of employees where the vote is restricted to employees employed prior November 2010.
15.1.7. Employees commencing post November 2010 are excluded from voting on modifications to the existing employee's hourly rate or their grading.
15.1.8. The business is aware that some current employees may decide that they do not wish to further develop their skill level and these employees will not be required to do so. However, they will work with the business to deliver on the requirements of their current Level.
15.1.9. No existing employee will be disadvantaged in respect to remuneration or conditions of employment or terminated as a direct result of the introduction and/or application of the new classification structure.
15.1.10 Training programs and places on those programs will be made available by the Employer according to its current and future operational needs having regard to the skills profile of the workforce as well as the need to satisfy the aims of the training programs.
15.1.11. Classification Structure - Grade Descriptor Definition
A review to establish a grade descriptor definition of the classification structure for each grade under the Agreement contained in Appendix A will take place during the life of the Agreement.
No employee shall lose status or pay as a result of the review.
[17] The 2017 Agreement contains a table at Attachment A (Classification Structure and Definitions) which is as follows:
Current Level @ Nov 2010 | Proposed Grade @ Nov 2010 | New Hourly Grade Rate@ Nov 2010 | Classification/Training Requirements | Alignment with AQF | Progression Requirements | Training Timeframe | ||||||
| Grade 1 |
| Entry Level | 6 Months | ||||||||
| Grade 2 |
|
|
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| |||||||
| Grade 3 |
|
|
|
|
| ||||||
| Grade 4 |
|
|
|
| |||||||
| Grade 5 |
|
|
|
| |||||||
| Grade 6 |
|
|
| ||||||||
| Grade 7 |
|
|
|
[18] Clause 15.1 and Attachment A was first included in the 2010 Agreement when the new classification structure was introduced. The same provisions remained included in the 2013 and 2017 Agreements, apart from the inclusion of a new clause 15.1.11 in the 2017 Agreement.
[19] The 2007 Agreement, being the predecessor to the 2010 Agreement, contained three tables which detailed:
a. a summary of operator skill levels (table 1),
b. a summary of progression through skills extension and training programs (table 2), and
c. a training matrix (table 3).
[20] In respect of what are now Grade 5 employees (i.e. former Level 3), table 2 provided that a Level 3 employee required 20 points worth of skills, and after completion of training, be ‘competent in all basic skills unit and all advanced skills unit with validation to 32 points’. Table 3 set out the points allocated to various areas. For example, the ‘bottle filler’ competency was valued at 6 points.
Asahi’s case
[21] Asahi submitted that the crux of the dispute is whether the Company may require employees to undertake training to enable them to operate multiple machines and/or perform multiple processes. It rejected United Voice’s claim that clause 15.1.8 allows employees to decline training and argued that the clause does not preclude training that relates to the requirements of the employee’s current classification (ie. Grade 5).
[22] Asahi submitted that clause 15.1 deals with matters arising from the introduction of the new classification structure in 2010. Clause 15.1.2 provides a commitment to agree to the training requirements of each of the grades. This provision clearly envisages that there is a standard to which current employees must be trained based on their grade, and is supplemented by clause 15.1.10 which ensures that relevant training programs will be made available.
[23] Asahi contended that the plain meaning of clause 15.1.8 is that employees engaged prior to November 2010 have an obligation to ensure that they are able to deliver the skill requirements of their current Level. It argued that the reference to ‘requirements of their current Level’ must be considered in the context of the revised Grading structure and in particular to the table at Attachment A. Further, it is clear from the first column of the table at Attachment A, titled ‘Current Level @Nov 2010’, that the reference to ‘current Level’ is intended to refer to the employee’s classification which at the time the Agreement was drafted.
[24] Asahi argued that the phrase ‘… current employees may decide that they do not wish to further develop their skill level’ means that employees may decide not to undertake training to progress to a higher classification or grade. Clause 15.1.8 only precludes employees being required to develop skills over and above their current grade.
[25] According to the submissions made by Asahi, the progression through the classification structure for manufacturing employees is through the attainment of skills and competencies relating to machines and processes. The qualification required for Grade 4 is that the employee must be skilled in multiple machines and the progression to Grade 5 requires an increased level of qualification and experience.
[26] Asahi claimed that there is clearly a reference made to the 2007 Agreement in clause 15.1.3 which provides that any future supporting process, including training requirements, will reference the ‘classification structure and point system information from previous Agreement’. The relevant classification under the 2007 Agreement for a Grade 5 employee was Operator Level III which required employees to be competent across a range of processes and to be able to operate a number of machines. Therefore, Asahi submits, Grade 5 employees who are formerly Level 3 operators must work with the Company to ensure they are multi-skilled in different machines and processes as required.
[27] In response to the submissions by United Voice, Asahi contended that the reference to ‘develop their skill level’ in the first sentence of clause 15.1.8 does not equate to ‘training’ and in no way precludes employees from being required to train in order for them to deliver on the requirements of their current level (ie Level3/Grade 5).
[28] Asahi also contended that United Voice sought to downplay the relevance of the points system provided in the 2007 Agreement, when clause 15.1.3 of the 2017 Agreement expressly refers to ‘point system information from the previous Agreement’ as a reference point. Given that clause 15.1.3 had not changed since its insertion, the reference to ‘previous Agreement’ was clearly a reference to the 2007 Agreement.
[29] Ms Cluning gave evidence in support of the Company’s position. As the Manager of Human Resources of Asahi, Ms Cluning is responsible for all human resources matters in Queensland and NSW including the Site.
[30] Ms Cluning said that employees had been asked to undertake training to enable them to operate multiple machines, but have refused to do so. She raised the issue with United Voice delegates on a number of occasions and the response she was provided was that they consider an employee is only obliged to know how to operate one machine, and that the only training that they can be required to undertake is if there is an update to the one machine they know how to operate.
[31] Ms Cluning said that current employees performing work on HB3 and HB4 lines who are only able to operate one machine have not taken up voluntary opportunities to undertake training to operate other machines. The Company failed to attract volunteers to undertake training to fill the identified skills gaps.
United Voice’s case
[32] United Voice argued that clause 15.1.8 starts with a primary position, which is that current employees may decide that they do not wish to further develop their skill level and these employees will not be required to do so. In other words, the clause creates a right for employees to decide if they wish to ‘engage in any activity to increase (learn new) or enhance (evolve to a higher level or state) the skills and competencies that they currently possess”. There is then an exception, which is that they “will work with the business to deliver on the requirement of their current level’.
[33] United Voice submitted that the phrase ‘that they do not wish to further develop their skill level’ is a clear declaration of an employees’ right to decline to ‘develop’ their skills.
[34] It argued that the word ‘develop’ referred to in clause 15.1.8 is not synonymous with ‘training’ and regardless of whether the word ‘develop’ refers to enhancing existing skills or increasing the number of competencies currently possessed, employees can advise the Company of their rejection to do either. United Voice said that the word ‘further’ has the ordinary meaning of ‘more, additional, going beyond what exists’ and as such it clearly provides a ‘point in time’ reference for skill levels of current employees.
[35] The reference to ‘current Level’ in clause 15.1.8 means the current skills/competencies possessed by the employee. It argued that ‘Grade’ and ‘level’ are not interchangeable, and that it is reasonable to conclude that the word ‘level’ is consistently used in the clause in reference to an employee’s skills. If the reference was made about the requirements of their current Grade, then the clause would have said ‘Grade’ not ‘level’.
[36] It submitted that clause 15.1.2 prospectively envisages an intent that over a specific period the parties will endeavour to create agreed training requirements for each grade. Such training requirements do not exist in the current agreement for any grade and have never been discussed. Therefore, it argued, the ‘requirements’ referred to in the clause 15.1.8 cannot be training requirements.
[37] United Voice argued that the only ‘requirements’ in the table in Attachment A for a Grade 5 are ‘Senior Multi skilled’, and this descriptor does not outline the duties, skills or competencies that are required to satisfy the criterial of ‘multi-skilled’. It submitted that the ordinary meaning of ‘multi skilled’ is ‘being or possessing, multiple abilities and competencies, that would allow an employee to perform duties/tasks beyond a single duty or function’. Further, it argued that it is impossible to ‘deliver’ on a requirement that is not identified or stated in the 2017 Agreement.
[38] United Voice concluded that its interpretation of clause 15.1.8, which is based on a logical and rational reading of the order of the sentence and ordinary meanings of the words and phrases use, is:
a That if employees are asked or directed by the company to develop their current skill levels (ie what their current competencies and abilities are), they can decide and affirm to the Company whether they do or do not wish to;
b. That upon an employee affirming that they do not wish to … they will not be compelled by the company to undertake further skill development beyond their current; and
c. As an exception, the employees will engage with the company to ensure that they exercise their current skills and competencies to the best of their abilities and do so with the goal of satisfactorily performing the associated duties/functions.”
[39] It acknowledged that whilst a clause that affirms an employee’s ability to decline to undergo skill development beyond their current skill level may be unique, this uniqueness should not be used as a platform for the clause to be re-written to derive a more conventional meaning.
[40] Messrs Gareth Campbell and Sunder Mohan gave evidence in support of United Voice’s position. Both said they had never had their skills and abilities formally reviewed by Asahi applying a ‘points system’ to determine their grade and rate of pay.
[41] Mr Mohan said that it was his view that a high proportion of employees at the Site were able to perform multiple processes and operate multiple machines.
[42] Mr Campbell attached to his witness statement a copy of a skills audit conducted by Ashai in November 2018, and asserted it demonstrated that no employee had a singular skill or ability, and that employees were in fact multi-skilled.
Consideration
[43] Reading the 2017 Agreement as a whole and the relevant provisions in context, I consider that employees classified at Grade 5 (Senior Multi-skilled) can be required to undertake training to perform processes they are not currently trained in or do not currently perform, including working on different machines, in order to meet the requirements of their current Grade.
[44] Clause 15.1 deals with the new classification structure introduced in the 2010 Agreement. As noted earlier, and with the exception of the introduction of 15.1.11, clause 15.1 has remained unchanged in the successor Agreements.
[45] Clause 15.1.2 confirms a commitment between Asahi and its employees to work together to agree on the training requirements for each of the grades within the classification structure, and to ensure ‘current and new’ employees are adequately trained.
[46] There is then in clause 15.1.3 an agreement to reference the classification structure and point system information from the previous Agreement. I accept this to be a reference to the 2007 Agreement, as the wording of the clause has not changed since its introduction in the 2010 Agreement.
[47] Clause 15.1.4 outlines the intention of the revised grading structure, which includes that ‘the site has the skills and capability to successfully deliver on its business requirements’, and that employees who do not want to progress their career are not financially disadvantaged. These two principles are consistent with clause 15.1.8.
[48] The 2017 Agreement at Attachment A makes specific reference to the grading structure that applied as at the introduction of the 2010 Agreement (in other words, what applied in the 2007 Agreement). While all of the Agreements from 2010 onward contemplate some kind of review of the requirements within each grade, this has not occurred to date. As a result, it is clear that the 2007 Agreement, which sets out the competency requirements for each Level, still has a role to play in determining the competency requirements for a Grade 5 employee under the 2017 Agreement, given it has not been replaced.
[49] The classification structure in the 2007 Agreement was based on a points system. In order to attain the minimum 20 points for a Level 3 (now Grade 5) employee, the employee needed to be competent in all basic skills units and three advanced skills units, as set out in table 2 of Attachment A of the 2007 Agreement. This meant the employee was competent across a range of processes, and was able to operate a number of machines.
[50] It is apparent from Attachment A in the 2017 Agreement that progression through the classification structure is through the attainment of skills and competencies relating to machines and processes, and that by Grade 4 an employee must be skilled in multiple machines and processes. Grade 5 is a step up from Grade 4, and by clear implication, requires the attainment of additional or further skills and competencies by comparison to Grade 4.
[51] The effect of the first two columns of the table in Attachment A is to provide a translation between the old and new classification structures, the old structure referring to Levels, and the new referring to Grades. I am satisfied that the word ‘Level’ which appears in Attachment A is consistent with ‘skill level’ as referred to in clause 15.1.8, and is synonymous with ‘Grade’ in the new classification structure introduced in the 2010 Agreement.
[52] I consider that the words ‘further develop their skill level’ in clause 15.1.8 to be a reference to movement to a higher Level or Grade rather than meeting the requirements of the employee’s existing Grade. The language of ‘skill level’ evidently arises from the 2007 Agreement which at its Attachment A includes a table titled ‘Summary of Operator Skill Levels’. The table then lists each of the levels for operators. Operator Level III provides that the employee is ‘competent in skill units with validation to 20 points’.
[53] In conclusion, Asahi is not prevented from requiring its Level 5 employees to fully meet the obligations required of a Level 5, senior multi-skilled employee. This is the equivalent of all basic skills and three advanced skills units to 20 points, according to the classification structure in the 2007 Agreement which has not been replaced. To this end, clause 15.1.8 does not create a right for employees to refuse to learn new or additional skills or competencies than those they currently possess.
[54] The dispute is so determined.
DEPUTY PRESIDENT
Appearances:
K Aistrope of Australian Industry Group for Asahi Beverages Pty Ltd.
C Acev for United Voice.
Hearing details:
2019.
Sydney:
April 10.
Printed by authority of the Commonwealth Government Printer
<PR711194>
1 [2014] FWCFB 7447.
2 [2017] FWCFB 3005.
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