Australasian Meat Industry Employees Union, The v Bangarrang Rendering Pty Ltd
[2012] FWA 7116
•20 AUGUST 2012
[2012] FWA 7116 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australasian Meat Industry Employees Union, The
v
Bangarrang Rendering Pty Ltd
(C2012/2333)
COMMISSIONER ROE | MELBOURNE, 20 AUGUST 2012 |
Alleged dispute concerning correct payment for leave and rostered days off pursuant to the Bangarrang Rendering Pty Ltd and Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2011 and Clause 7.2 Settlement of Disputes.
[1] On 23 January 2012 the Australasian Meat Industry Employees’ Union (AMIEU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Bangarrang Rendering Pty Ltd and Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2011 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act). The employer covered by the Agreement is Bangarrang Rendering Pty Ltd (the Employer).
[2] The dispute was subject to conciliation conference on 14 February 2012. I made the following recommendation arising from that conference which was agreed to by the parties:
“The parties have agreed to the following Recommendation from FWA in settlement of the dispute at the conference held at FWA on 14 February 2012.
1. On 25 May 2010 Bangarrang Rendering Pty Ltd became the employer and operator of the business and pursuant to Section 311-314 of the Fair Work Act that employer became covered by the AMIEU and Goulburn Industries Agreement (AG096278779). Under the Goulburn Agreement employees are entitled to a minimum daily rate for annual leave, rostered days off and sick leave as specified in the Agreement.
2. The minimum daily rate has not been correctly paid in respect to beef slaughterers and labourers. It appears that the underpayment is $30 per day in respect to beef slaughterers for RDOs and annual leave (not including annual leave loading which must be added) and $20 per day in respect to sick leave. The underpayment for labourers is to be confirmed.
3. The employer will pay the correct minimum daily rates as per Clauses 13.8, 13.9, 13.1 and 13.2 for RDOs, Annual leave and Sick leave respectively in Schedule 13 of the Bangarrang Rendering Pty Ltd and The AMIEU Victorian Meat Processing Agreement 2011 from 3 November 2011 onwards including the increase in rates from 27 November 2011.
4. The employer will by close of business 5 March 2012 at the latest provide to the union information:
- Confirming the level of underpayment in respect to each RDO, annual leave day and sick leave day for beef slaughterers and labourers respectively for the period 25 May 2010 to 3 November 2011.
- Identify the number of RDOs, annual leave and sick leave days involved for each affected employee.
- The calculations of the underpayments due for the period 25 May 2010 to 3 November 2011.
5. The union will check this information and if necessary will have access to the records for checking and the employer will discuss any issues with the union. This will occur during the ten days following the receipt of the information in point 4 above.
6. The underpayments will be paid to employees not later than 15 March 2012.
7. In the event that there is dispute during this period either party can seek that the matter be relisted.
8. In the event that the underpayments are not made by 15 March 2012 the issue of underpayments including for the period prior to 25 May 2010 will be in dispute and the matter can be relisted at FWA and the union is also free to pursue the matter elsewhere. In the event that the underpayments are made by 15 March 2012 the parties agree that this will settle the dispute as far as the union and the employer are concerned.”
[3] After considerable further correspondence and communication I issued the following directions on 24 April 2012:
“FWA issued a recommendation on 14 February 2012 which was agreed to by the parties. FWA has been advised by the union that some payments have been made consistent with the recommendation. However, the union says that point 4 of the recommendation has not been complied with. Point 4 provided that:
“The employer will by close of business 5 March 2012 at the latest provide to the union information:
- Confirming the level of underpayment in respect to each RDO, annual leave day and sick leave day for beef slaughterers and labourers respectively for the period 25 May 2010 to 3 November 2011.
- Identify the number of RDOs, annual leave and sick leave days involved for each affected employee.
- The calculations of the underpayments due for the period 25 May 2010 to 3 November 2011.”
The recommendation of the 14 February 2012 represented a full and final settlement of the dispute but that settlement is dependent upon the implementation of the recommendation.
The Commissioner directs that by 1 May 2012 the employer comply with point 4 of the recommendation to the extent that they have not already done so.
In the event that the direction is not complied with the matter will be relisted for conference/hearing at 10am on 15 May 2012. In the event that conciliation of the matter is exhausted the parties are on notice that the matter may proceed to arbitration at that time.
The employer may apply for variation to these directions.”
[4] The Employer did provide some information in response and there was some discussion between the parties but the matter was not resolved. A further conference was held on 10 July 2012. The employer did not attend the conference. The following further directions were issued following the conference:
- NAME OF EMPLOYEE
- NUMBER OF RDOs IN THE RELEVANT PERIOD,
- AMOUNT OWED PURSUANT TO EARLIER RECOMMENDATION FOR RDOs,
- NUMBER OF ANNUAL LEAVE HOURS IN RELEVANT PERIOD,
- AMOUNT OWED PURSUANT TO EARLIER RECOMMENDATION IN RESPECT TO ANNUAL LEAVE,
- NUMBER OF SICK LEAVE HOURS IN RELEVANT PERIOD,
- AMOUNT OWED PURSUANT TO EARLIER RECOMMENDATION IN RESPECT TO SICK LEAVE,
- AMOUNT PAID BY EMPLOYER AS ADVISED BY EMPLOYER,
- AMOUNT STILL OWING.
“On 14 February 2012 FWA issued a Recommendation (agreed upon by the parties).
[1] The union advised FWA that the employer did not comply with point 4 of the Recommendation. FWA issued Directions on 24 April 2012 requiring the employer to comply with the Recommendation. The Directions stipulated that in the event that the employer did not comply with the Recommendation by 1 May 2012, the matter would be listed for conference/hearing on 15 May 2012.
[2] The union advised FWA that the employer did not comply with the Directions. A conference was listed for 13 June 2012. This conference was adjourned at the request of the employer. A further conference was listed for 10 July 2012 and parties received notices of the listing on 12 June 2012 and 22 June 2012.
[3] The employer failed to attend the conference on 10 July 2012. The conference was held in the absence of the employer.
[4] The Recommendation of 14 February 2012 represented a full and final settlement of the dispute but settlement was dependent upon implementation of the Recommendation. The parties agreed as part of the Recommendation that if the matter was not resolved in accordance with the Recommendation the matter could be relisted. The Directions of 24 April 2012 gave notice to the parties that the matter may proceed to arbitration if I was satisfied that conciliation was exhausted.
Directions
[5] The following directions will now be followed by the parties.
[6] The Union will by 17 July 2012 provide the Employer (with a copy to FWA) a spread sheet with the following columns and information:
[7] Any employees covered by the Recommendation who were not included in the table provided by the employer should be added to the spread sheet.
[8] The employer will provide to the union (with a copy to FWA) by 27 July 2012 satisfactory evidence that the outstanding amounts claimed have been paid or advise as to any alleged errors in the spread sheet provided by the Union. With respect to alleged errors, the employer is required to identify the particular error in each column in respect of each employee. Where the employer alleges there is an error the employer must outline reasons for the error, provide an alternative figure and show calculations for the basis of the alternative figure.
[9] The union will respond to the employer (with a copy to FWA) by 3 August 2012 if the union disputes any of the allegations made by the employer. If any alleged errors are identified by the employer the union is required to outline the reasons for disputing each of the errors.
[10] The parties are to advise FWA of the outcome of this process by 10 August 2012. If the parties have not reached agreement on the amounts owing and if those agreed amounts have not been paid by 10 August 2012 the Commissioner is satisfied that conciliation has been exhausted and the matter will proceed to arbitration.
[11] In this event, the matter will be heard in Melbourne at 11am on Thursday 16 August 2012. The parties are to provide FWA and each other with any documentary material upon which they may rely and advise as to the names of any witnesses who may be called by Wednesday 15 August 2012.”
[5] The AMIEU provided a spread sheet on 10 August 2012. 1 At 8.41am on 16 August 2012 prior to the hearing at 11am on that day, Mr Peat on behalf of the Employer sent an email “please find, will not be in attendance”. Attached to that email was a spreadsheet2 largely in the form directed to be provided by 17 July 2012.
[6] At the hearing on 16 August 2012 Mr Chalkley appeared for the AMIEU and there was no appearance from the Employer. As the matter was well known to the Employer, there was no reason for non-attendance given, the Employer had made it clear he was aware of the hearing and as the matter concerned the implementation of an agreed recommendation I decided to proceed with the hearing.
[7] I am satisfied that the dispute concerns the application of clauses 5.1.6, 5.2.2, 5.2.3, 2.5.2 and 13 of the Agreement. In particular it relates to the correct payment to a number of employees in respect to Rostered Days Off, Annual Leave, Annual Leave Loading and Sick leave. I am satisfied that this is a dispute about a matter arising under the Agreement and it can therefore be resolved in accordance with Clause 7.2 Settlement of Disputes. I am satisfied and it is not contested that all necessary steps of the Settlement of Disputes procedure have been implemented and that conciliation had been unsuccessful and that it is appropriate to now determine the dispute by arbitration.
[8] I gave the AMIEU until noon on Monday 20 August to advise of any calculation errors in Exhibit Company 1 and the nature of those errors. The AMIEU advised that they are happy to accept Exhibit Company 1.
[9] I determine that the appropriate resolution of the dispute, consistent with the Agreement terms, is that the Agreement should be properly applied and obliges the Employer to pay, without further delay, the amounts shown as owed in the final column in Exhibit Company 1 to the employees named in Exhibit Company 1 in respect to outstanding entitlements in respect to Rostered Days Off, Annual Leave, Annual Leave Loading and Sick Leave. These payments are in addition to payments already made. These payments constitute full resolution of the dispute. The spreadsheet Exhibit Company 1 is attached.
COMMISSIONER
Appearances:
Mr B Chalkley appeared for the AMIEU.
No appearance for the Respondent.
Hearing details:
2012
Melbourne
August 16
Exhibit Company 1
1 Exhibit Union 1.
2 Exhibit Company 1.
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