Australasian Meat Industry Employees Union, The v Primo Foods Pty Ltd
[2024] FWC 165
•19 JANUARY 2024
| [2024] FWC 165 [Note: An appeal pursuant to s.604 (C2024/781) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australasian Meat Industry Employees Union, The
v
Primo Foods Pty Ltd
(C2021/4501)
| VICE PRESIDENT ASBURY | BRISBANE, 19 JANUARY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] – Fair Work Act s. 16(1) – Meaning of base rate of pay – Whether Higher Duties payment in enterprise agreement included in base rate of pay – Conclusion that higher duties payment is a separately identifiable amount and excluded from base rate of pay by s. 16(1)(e).
Overview
The Australasian Meat Industry Employees Union (AMIEU/Applicant) applied under s. 739 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with a dispute under the dispute resolution procedure in clause 3.10 of the Primo Foods Pty Ltd – JBS Primo Wacol Enterprise Agreement 2019 (Primo Agreement). The dispute was notified by the AMIEU on behalf of its members Mr Site Li and Mr Andrew Ioata. The Respondent is Primo Foods Pty Ltd (Primo/Company/Respondent), Mr Li and Mr Ioata’s employer.
The AMIEU, Mr Li and Mr Ioata were covered by the Primo Agreement, which was approved by the Commission on 24 February 2020, commenced operation on 2 March 2020 and reached its nominal expiry date on 24 February 2022. The Primo Agreement replaced the Hans Continental Smallgoods Pty Ltd Enterprise Agreement 2016 (Hans Agreement) which expired on 9 April 2019. All parties to the dispute were covered by both Agreements.
The AMIEU no longer presses the application in relation to Mr Ioata and the remaining issue in dispute is the determination of the correct rate of pay for Mr Li when taking personal/carer’s leave and on public holidays not worked, in circumstances where Mr Li was performing higher duties. The AMIEU proposed the following question for arbitration:
“For the purpose of s. 16 of the FW Act, what was Mr Site Li’s base rate of pay during the periods of personal/carer’s leave and public holidays taken between September 2019 and September 2021?”
The period of time covered by the dispute spans the operation of both Agreements. Primo objected to the Commission arbitrating the dispute on the basis that the dispute was not raised under the Hans Agreement; rather, the application was filed under clause 3.10 of the Primo Agreement. Primo contended that as the dispute was not about a matter under the Primo Agreement, the Commission had no jurisdiction to deal with it. Prior to hearing the substantive matter, I dealt with, and dismissed, Primo’s jurisdictional objection and issued the reasons for my Decision on 8 March 2023.[1] In summary, I determined that a dispute in relation to the NES may encompass a period where the Agreement under which the dispute was brought is not in operation and that the arbitration of the dispute did not involve the exercise of judicial power.
The dispute was not able to be resolved by conciliation and the Commission is empowered by s. 739 of the FW Act to arbitrate the dispute under the terms of the Dispute Resolution Procedure in clause 3.10 of the Primo Agreement.
The issues in dispute
In relation to the substantive dispute, the AMIEU contends that Primo has been incorrectly paying its employees at the rate of pay applicable to their “official classification” for public holidays and personal leave despite those employees regularly working at a higher classification level. It submits that but for the public holiday or the employees taking personal leave, they would have worked at a higher classification level, and as such, their base rate of pay should be the higher rate for the purposes of payment. The AMIEU asserts that Mr Li was required to continuously perform higher duties at a Level 5 rate between at least a date in September 2019 until such time as he was permanently reclassified to a Level 5 Quality Checker by the Operations Manager. Further, the AMIEU submits that the Commission can be satisfied that Mr Li would have continued to perform higher duties as a Quality Checker had he not taken leave during the relevant periods. As such, the AMIEU asserts that Mr Li’s base rate of pay should have been that of a Level 5 employee when he took periods of leave.
Primo characterises the dispute as being about whether Mr Li, who regularly performed higher duties, should be paid in accordance with the higher duties provisions in clause 5.3 of the Primo Agreement when he was on leave. It maintains that Mr Li was not entitled to payment of any amounts under clause 5.3 for being required to perform higher duties when he was absent from work on paid personal/carer’s leave or was entitled to payment for a public holiday when he did not work. Primo contends that the higher duties clause was not, as a matter of fact, engaged on the days on which Mr Li was absent from work. In the alternative, it asserts that whether Mr Li would have worked higher duties on the days he was absent cannot be determined in the absence of any contractual entitlement or standing requirement for Mr Li to undertake that work. In any event, Primo asserts that the amounts payable under the higher duties clause do not comprise an employee’s base rate of pay.
Procedural history
Directions were issued on 4 April 2023 requiring the parties to file outlines of submissions and statements of evidence that the parties intended to rely on in relation to the substantive matter. On 3 May 2023, the AMIEU filed two witness statements in support of its case. The first was made by Mr Li and the second was made by Mr Warren Earle, the Lead Organiser of the AMIEU. On 30 May 2023, the Respondent filed the witness statement of Mr Neil Stephenson, the Production Manager – Bacon Packaging of Primo. On 14 June 2023, the AMIEU informed the Commission that it required Mr Stephenson for cross-examination and requested an in-person hearing be conducted. Subsequently, on 16 June 2023, Primo informed the Commission that it required Mr Li for cross-examination and also requested an in-person hearing.
A hearing was conducted on 17 July 2023 in Brisbane. The witness statements of Mr Earle,[2] Mr Li,[3] and Mr Stephenson[4] were admitted into evidence without objection. At the hearing, the AMIEU was represented by its Industrial Officer, Mr C. Buckley and Primo was represented by its Group Manager – Industrial Relations, Mr W. Ash.
Evidence
Warren Earle
Mr Earle is employed as the Lead Organiser of the Queensland Branch of the AMIEU. He is the AMIEU official responsible for organising the Union’s members at the Primo smallgoods manufacturing establishment at Wacol. Mr Earle knows Mr Li (who is usually known by the name, Ellis) as he is a member of the AMIEU and an employee of Primo.
Mr Earle gave evidence that in late 2020 and early 2021, he was contacted or approached by a number of workers about their pay. The workers told him that they were working in positions higher than their substantive classifications but had not been officially appointed to those higher classifications. Mr Earle stated that the workers complained to him that they would receive the pay for the higher classification when they were working, but when they took leave or were absent on a public holiday, they would only receive payment at the rate of their ‘official’ classification.
In relation to Mr Li’s dispute, Mr Earle was unable to recall the exact date he spoke with Mr Li about his concerns, but Mr Earle recalled writing to Primo’s HR Manager, Ms Cheryl Wolens, in January 2021 to raise Mr Li’s issues. Mr Earle referred to an email exchange between himself and Ms Wolens where the AMIEU contended that the employees should continue to be paid at the higher classification rate when taking personal leave, or on public holidays.
Mr Earle stated that he had been involved in numerous discussions with Ms Wolens and other management representatives at Primo (including Ms Tanya Shanahan and Mr Will Ash) regarding the dispute. During these discussions, Mr Earle issued a right of entry notice to inspect time and wage records relating to Mr Ioata and Mr Li. However, Primo’s management voluntarily provided him with the records including Excel spreadsheets containing the two employees’ wage records. Mr Earle gave evidence that he found the spreadsheets to contain a number of columns which contained zero entries or detail he considered superfluous to the matters in dispute. He stated that he had edited the spreadsheet to remove a number of columns to make it easier to read but did not change any of the data in the spreadsheet. Mr Earle explained that he highlighted the rows which recorded a public holiday payment or personal leave payment and attached a copy of this to his witness statement.
Site Li
Mr Li has been employed by Primo since 2017, working at the Wacol factory. When he first began working with Primo, Mr Li was employed as a Level 2 Process Worker. Mr Li explained that as a process worker, he assisted a Level 5 Machine Operator. Mr Li is currently employed by Primo as a Level 5 Quality Checker.
Mr Li stated that he had begun learning the duties of a machine operator and would sometimes do that work. As such, he became a “backup” operator for the Multivac machine. On the days that he worked as a machine operator, Mr Li was paid as a Level 5 employee.
At some point, Mr Li recalled that his supervisor asked him if he was interested in doing the job of a Quality Checker (QC). Mr Li gave evidence that he believed this would help him upgrade faster to a Level 5 employee so agreed to become a QC. It took around three weeks to a month to be trained as a QC. Mr Li explained that as a QC he is required to check the product and make sure the product details are correct, including, for example, temperature checks, gas levels, use by dates. Mr Li did not know when he finished his training but recalled that on 16 December 2019, he received a letter from Primo confirming that his training had been completed.
Once Mr Li was trained, he was told by his supervisor to do the QC role. Mr Li gave evidence verbally and in his witness statement that he worked as a QC every day unless his supervisor told him differently. On some occasions, Mr Li would be told by his supervisor that they did not have as many product lines running and as such, they did not need him to do the QC role. On the days that he was not required as a QC, Mr Li was assigned another job to do. Mr Li stated that almost always, he was asked to be a machine operator, which is also classified at Level 5. A few times, Mr Li recalled he was given a Level 2 job to do.
Mr Li could not recall when he had spoken to Mr Earle about his public holiday and personal leave payments but stated that he told Mr Earle that when he was working as a QC, his pay would be dropped back to the Level 2 whenever he was away sick or there was a public holiday.
Mr Li gave evidence that at one point he was asked if he wanted to be made a Level 5 Multivac operator, but he declined. Mr Li explained that he had been doing the QC role for over a year, full-time and did not want to change and that he was concerned he might be expected to do the Multivac role and the QC role together. Mr Li stated that he had not been signed off as a Level 5 until he had been in the QC role for a very long time. Mr Li said that now he has been signed off as a Level 5, on public holidays or when he takes personal leave, he is paid at the Level 5 rate of pay.
Neil Stephenson
Mr Stephenson is employed by Primo as the Production Manager – Bacon Packaging, working at the Wacol factory. Mr Stephenson has worked with Primo and its predecessors for 32 years and in his current role for around 20 years. In his current role, Mr Stephenson has five direct reports including Ms Larena Obeirne who is the shift supervisor for the afternoon shift in the “Bacon Slice Room”.
Mr Stephenson’s evidence is that the Bacon Slice Room currently runs nine operational production lines during day shift and nine production lines during the afternoon shift. There are approximately 90 employees and 9 labour hire workers rostered to work the afternoon shift in the Bacon Slice Room. There are “key roles” and “non-key roles” that need to be undertaken with QCs and Multivac Operators being key roles. If there is less than the required number of non-key role operators available on a given shift, the production lines can still run, but will run slower than they otherwise would. However, if there is not at least the specified number of key role operators available on a particular shift, the production lines cannot operate at all.
The required number of key role operators for a particular shift are determined by the production targets set by management. Mr Stephenson explained that management uses modelling to set the production targets that are required for each shift to ensure that Primo can meet its forward “Master Production Schedule” production volumes. Due to the significant consequence of there being inadequate numbers of key role personnel available in the Bacon Slice Room, they aim to have a number of “backup” personnel who are qualified to operate the Multivac machines, work as QCs, or undertake other key roles when required. Mr Stephenson said there are a number of employees in substantive classifications lower than Level 5 (being the classification of key role operators) who have been trained so as to be able to cover key roles in a backup capacity, on an ‘as needs’ basis. When, due to absenteeism, there is not a sufficient number of key role operators available, these employees can be required to step up to perform a key role.
Mr Stephenson further explained that some backups are signed off to undertake multiple key roles while some are only signed off to operate a single machine or work as a QC. Those employees competent in more than one key role will typically “step up” more than those with a narrower set of competencies.
Currently in the Bacon Slice Room, on afternoon shift they have six backup employees trained on the Multivac machines (five of whom are also trained as backup QCs) and two backups that are trained as QCs only. On average, around 5% to 10% of workers in the Bacon Slice Room are absent on any day. However, Mr Stephenson recalled that absenteeism was much higher during the COVID-19 pandemic, with as many as 50% of employees being absent on any given shift. Prior to the pandemic, absenteeism was even lower than 5% to 10%, and Mr Stephenson said he did not need to rely on backups as often.
Mr Stephenson confirmed that Mr Li has been employed by Primo since 11 October 2017 and he has always worked on the afternoon shift in the Bacon Room. Mr Li was signed off as a Multivac backup operator on or around 15 January 2018 and was also signed off as a QC backup on 16 December 2019. Prior to being signed off as a QC and a Multivac operator, Mr Li had been required to step up as a Multivac operator from time to time. Mr Stephenson provided a report indicating the hours that Mr Li stepped up each week in the two years prior to September 2019.[5] Mr Stephenson explained that the reasons why Mr Li was not required to step up as regularly prior to being signed off as a backup QC was because, at the time, he did not hold his second backup competency and because absenteeism was much lower prior to the pandemic.
As Mr Stephenson is the contact for any team member who calls in absent, before the start of each shift, he sends Ms Obeirne (and the other supervisors) a list of employees who would be away that day. Ms Obeirne then completes a paper timesheet and allocate employees to particular roles based on the manning requirements and who is trained to step up to any key roles that need to be back filled on that particular shift. If Ms Obeirne could not fill all key roles on a shift, Ms Obeirne would cover the role herself or direct one of the supervisors to do so. This reconciliation exercise is undertaken at the start of every shift, and those employees who will be required to step up for a given shift are directed to that effect on shift commencement.
The need for Mr Li or any other employee to step up depends on whether any key role operators are absent from that shift. When asked in cross-examination what occurs when Primo is aware of an employee taking a period of leave or an injured employee is absent for an extended period, Mr Stephenson said Ms Obeirne would, on a daily basis, assess and allocate another employee to that role.[6] Where an employee in a key role resigns, Mr Stephenson said he discusses it with Ms Obeirne who offers that position to one of the backups to step into the full-time role.[7] Mr Stephenson authorises the change in the person’s classification.[8] Mr Stephenson said that employee absences are a variable outside of Primo’s control and for that reason, Primo did not know until the start of each shift whether Mr Li would be required to step up in a Multivac Operator or QC role. Mr Stephenson explained that the decision to have Mr Li back fill a role of a Multivac Operator or QC was made at the start of each shift based on the facility’s manning requirements, rather than on any standing basis. To this end, Mr Stephenson stated that Ms Obeirne was required to manually allocate the daily timesheets on each shift for which an employee was required to step up.
Mr Stephenson stated that on a number of occasions, Primo has sought to address how regularly particular employees are required to step up, by training and signing off more employees as backups. Those proposals have been met with resistance by the employees that presently step up regularly, as if there are more backup operators available, the existing backup employees would step up less regularly, and not be paid the step up allowance as often.
When a permanent Level 5 Multivac Operator role became available in or around January 2021, Mr Stephenson arranged for Ms Obeirne to communicate the permanent role offer to Mr Li, but he turned it down, saying words to the effect that “No, I want to stay QC”. Mr Stephenson’s view is that Mr Li viewed the QC role as superior to the Multivac role despite both roles being paid the same. Around the same time, Ms Obeirne offered two other employees permanent Multivac Operator roles which they accepted. In or around August 2021, Mr Li was offered a permanent role as a Level 5 QC Operator.
During the period 1 September 2019 to 29 August 2021, Mr Stephenson was advised that Mr Li’s pay rate was manually adjusted in the Primo Kronos system (a time and attendance system), on a day-by-day basis, for each shift that he was required to step up. Mr Stephenson explained that the system was populated on each day with the role he performed – whether it was a Multivac or QC Operator. Mr Stephenson gave evidence that there was no standing adjustment to Mr Li’s pay rate. In his view, this a reflection of the fact that the decision to have Mr Li step up was made on a shift-by-shift basis and was one for which there was no means of predicting with any certainty in advance.
In response to the AMIEU’s submission that there was one period of eight hours over the relevant time period where Mr Li was paid at the Level 2 rate with no subsequent correction, Mr Stephenson said he had now been advised that Mr Li had been paid the step up allowance for the shift on 8 May 2020. Mr Stephenson said he could not recall whether Mr Li had stepped up that day or not.
Submissions
Applicant
The crux of the AMIEU’s submissions is that pursuant to the NES and s. 16 of the FW Act, while Mr Li was continually performing higher duties at the Level 5 classification, his base rate of pay in the relevant periods when he took leave should have been that of a Level 5 employee under the Primo Agreement (and for the period of the dispute prior to 2 March 2020, a Level 5 employee under the Hans Agreement).
The AMIEU asserted that the NES provides that an employee must be paid for both personal/carer’s leave and public holidays at the employee’s “base rate of pay for the employee’s ordinary hours of work in the period”.[9] The AMIEU relies on the FW Act definition of “base rate of pay”[10] and submits that the phrase “in the period” clearly refers the period in which leave or a public holiday is taken. Further, the AMIEU asserted that an employee’s “ordinary hours of work” is the quantum of ordinary hours determined by the relevant enterprise agreement;[11] Mr Li is employed as a full-time production employee on 38 ordinary hours per week. The AMIEU also noted that pursuant to s. 55 of the FW Act, the NES prevails over any inconsistent term of an enterprise agreement, and this is agreed to in clause 2.4.1 of the Primo Agreement. Taken together, the AMIEU submits that for an employee to be paid their “base rate of pay for the employee’s ordinary hours of work in the period” a factual inquiry into the base rate of pay the employee would have received during the relevant period, but for the public holiday or taking leave, is needed.[12]
The AMIEU contends that to the extent this requires a certain degree of speculation into the state of affairs which would have prevailed but for the public holiday or taking of the leave, that is a necessary consequence of Parliament’s focus on the base rate of pay which would have been payable “in the period”. However, in relation to Mr Li, it does not appear that any such speculation is required given that he seems to have performed the work of a Level 5 employee under both Agreements, throughout the entire period, or virtually the entire period, pertinent to the dispute.
In relation to the “Higher Duties” and “Mixed Functions” clauses in the Primo and Hans Agreement, respectively, the AMIEU rejected Primo’s submission that the employees’ base rate of pay is that of their substantive classification rather than the rate determined by the higher duties clause because the higher duties rate is either an “allowance” or “separately identifiable amount” excluded from the calculation of an employee’s base rate of pay by s. 16. The AMIEU contended that Primo’s assertion is not supported by the text of the clauses and in each case, the clause specifies the “rate” (of “pay” or “wage”) that is payable to an employee performing such work. In oral submissions, the AMIEU further contended that the amount payable for higher duties cannot be considered “any other separately identifiable amount” as the phrase implies that there is something for it to be separate from, in this case, from the rate of pay.[13] The AMIEU submitted that there is nothing separate from the rate of pay; rather it is a single rate of pay which is an amount of dollars paid per hour.[14]
Further, in the AMIEU’s view, the classification structure under both Agreements is unusual in that they provide for an employee to be classified “at the sole discretion of the Operations Manager”[15] who is only required to use the classification structure “to assist in establishing the appropriate grade”.[16] The AMIEU submitted that read literally, and without regard to the mixed functions/higher duties clauses, this would permit the Operations Manager to assign an employee to a classification even if it did not accurately reflect the work the employee was required to perform. In this context, the AMIEU contended that the mixed functions/higher duties clauses ensure that where an employee is required to perform work of a higher classification, they are remunerated at the rate of pay for that classification regardless of the “substantive” classification assigned to them by the Operations Manager. It is the AMIEU’s assertion that this is not an allowance or other amount referred to in s. 16. Rather, it is a machinery provision which operates to fix an employee’s base rate of pay so that it is commensurate to the duties they are objectively required to perform.
If the mixed functions/higher duties clauses did operate in the manner contended by Primo, the AMIEU submits that nothing in the Agreements would prevent the Operations Manager from using their discretion to assign employees to a low-level classification, and then requiring them to perform higher duties on a semi-permanent (or even permanent) basis. In the AMIEU’s view, this would allow Primo to obtain all the benefits of higher duty work while avoiding any obligation to pay commensurate leave and public holiday entitlements to the employee. The AMIEU contends that, plainly, if this is how the Agreement operated, it could not have passed the better off overall test (BOOT) and could not have been approved.
In summary, the AMIEU submitted that in the circumstances of this matter, the evidence establishes that Mr Li was required to continuously perform higher duties as a Level 5 employee between at least a date in September 2019 until such time as he was permanently reclassified to Level 5 by the Operations Manager. As such, having regard to all the circumstances, the Commission can be satisfied that Mr Li would have continued to perform higher duties in the QC role had he not taken leave during the relevant periods. Accordingly, the base rate of pay for Mr Li in the relevant periods in which he took leave is that of a Level 5 employee under the Primo Agreement (and for the period prior to March 2020, a Level 5 under the Hans Agreement).
Respondent
Primo’s primary submission is that on a proper construction of the Primo Agreement, Mr Li was not entitled to any amounts under the “Higher Duties” provision in clause 5.3 of the Agreement on the days he was absent from work, whether on leave or due to a public holiday. In Primo’s view, the classification structure under the Primo Agreement is based on a consideration of the particular “job role” for which an employee is employed.[17] The Agreement confers on Primo the sole discretion to determine the number of employees required in each job role,[18] and prescribes that an employee cannot be appointed into a job role unless Primo has first deemed there is a vacancy.[19]
Primo maintained that between September 2019 and September 2021, Mr Li’s classification remained at Level 2. As Primo understands, it is not contended that Mr Li’s substantive classification changed when he was required to perform higher duties. It is Primo’s submission that plainly, this cannot be the way the classification structure operates under the Primo Agreement given such a construction would be to render the “Higher Duties” clause nugatory.
On that basis, Primo submits that Mr Li was not entitled to payments of any amounts under the “Higher Duties” clause when he was absent from work on paid personal/carer’s leave and/or as a result of a public holiday. In this regard Primo makes three contentions:
· First, the “Higher Duties” clause was not, as a matter of fact, engaged on the days on which Mr Li was absent from work;
· Second, and in the alternative, whether Mr would have worked higher duties on the days he was absent cannot be determined in the absence of any contractual entitlement or standing requirement for the Employee to undertake that work; and
· Third, in any event, the amounts payable under the “Higher Duties” clause do not comprise an employee’s base rate of pay.
In relation to its first contention, Primo submitted that the “Higher Duties” clause clearly indicates that it is only to be engaged when an employee is “required by [Primo] on any day or shift to perform [the relevant higher duties]”. That is, unless an employee is actually required, as a matter of fact, to undertake higher duties, the clause is not engaged. Primo asserted that it is trite that a construction should be strived for that gives meaningful effect to the entirety of an agreement. No clause, sentence, or word should be dismissed as superfluous or insignificant, and if by one construction they are all useful and pertinent, then that construction is the preferred interpretation.[20] Primo submitted that a construction that purports to engage the “Higher Duties” clause in circumstances where, as a matter of fact, an employee was not required to perform higher duties, would be a construction that deprives the word “required” of any operative significance or, alternatively, impermissibly and without proper basis reads an unidentified form of words into the clause. In Primo’s submission, the absence of any requirement that Mr Li work in higher duties on the days he was on personal/carer’s leave and/or absent on public holidays is a full answer to the dispute.
In relation to Primo’s contention that the assignment of higher duties was not guaranteed, Primo rejected the AMIEU’s submission that it is sufficient, when calculating an employee’s entitlements when absent from work, to have regard to what an employee would have earned had they worked the relevant shift. Primo pointed out that its evidence shows that there was no contractual entitlement to, nor standing requirement that, Mr Li work higher duties. Rather, the need for him to work higher duties was assessed on a shift-by-shift basis, with the relevant manager allocating employees to tasks after considering the required manning and available labour mix for each particular shift.
Primo noted that Mr Li was certified as both a Multivac Operator and Quality Checker. As such, he was called on to work in a Level 5 role with greater frequency than an employee who was only certified in a single Level 5 role. However, Primo submitted that this did not change the fact that working higher duties was always subject to demand on a given shift, and there was no certainty, be it by operation of contract or custom and practice, that Mr Li would be required to work higher duties.
In those circumstances, Primo contended that it cannot be assumed that Mr Li would have been required to undertake higher duties on the days he was absent. In Primo’s view, the AMIEU’s attempted “forecasting” is in that sense predicated on assumptions that the AMIEU is unable to make good. As such, Primo submits that where the AMIEU cannot establish that Mr Li would have been required to work higher duties had he not been absent, the contention that he would have been entitled to be paid at the Level 5 classification rates has not been made out.
In relation to Primo’s third contention that any amounts payable under the “Higher Duties” clause do not comprise an employee’s base rate of pay, reference was made to s. 16(1) of the FW Act, which lists what is not included in the “base rate of pay”. In Primo’s view, the “Higher Duties” clause confers on an employee an entitlement to what is a prescribed (and indeed artificially calculated) amount. Once an employee is required to work higher duties for four hours, they are entitled to payment of amounts under the clause for the entirety of their shift, irrespective of whether they actually undertake higher duties for any further period. Primo submitted that, in that sense, the clause operates to confer on an employee an entitlement to a set amount once a particular state of affairs is triggered, and for that reason is akin to the payment of an allowance, or at the very least a “separately identifiable amount”.
In oral submissions, Primo pointed to the Federal Court’s consideration of s. 16 in Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd (Bulga)[21] in support of its submission that the higher duties clause concerns a separately identifiable amount.
When asked whether Mr Li was performing his ordinary duties when he was acting in a higher role, Primo submitted that Mr Li’s substantive classification was always Level 2. At times due to absenteeism or Primo’s production requirements, Mr Li would be directed to perform the higher duties (of a Level 5) that he was trained in, but at no point was Level 5 his base rate of pay. Primo submitted that Mr Li was paid an allowance, or at the very least, a separately identifiable amount for the higher duties/mixed functions he performed, in accordance with clause 5.3 of the Primo Agreement and clause 5.2.5 of the Hans Agreement.
In response to the AMIEU’s reliance on Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Mondelez),[22] Primo contended that this is misplaced as the decision says nothing about the determination of an employees’ base rate of pay for any hours for which an employee was absent from work. Primo noted that the Court in Mondelez observed that:
“Fairness and enforceability may both be served by employers and employees both being able to know, at any point in time, precisely how much paid personal/carer’s leave an employee has accrued.”[23]
Primo submitted that this rationality applies to both the quantification of the hours of leave, but also the value of that leave in monetary terms. It contended that there are a range of reasons why an employer may need to be able to calculate its liabilities and forward operating costs at any given point in time. In that context, there is sense and fairness in the value of accrued leave being determined by reference to contractually or industrially guaranteed amounts, rather than by reference to considerations of amounts which an employee may or may not receive depending on their employer’s labour requirements on any given day the employee is absent from work.
Construction of enterprise agreement
The resolution of this dispute requires construction of the Primo Agreement and its interaction with the term “base rate of pay” in the FW Act. The approach and the principles relevant to the task of construing the terms of an enterprise agreement were set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd.[24] The relevant passage setting out the 15 principles is well known, and it is not necessary to set it out. More recently, in AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital,[25] a Full Bench of the Commission distilled relevant principles from the Full Court of the Federal Court majority in James Cook University v Ridd,[26] as follows:
“The starting point is the ordinary meaning of the words, read as a whole and in context.
A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
Context may include ideas that gave rise to an expression in a document from which it has been taken.
Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[27]
The Primo Agreement
The dispute concerns whether amounts payable to employees under clause 5.3 of the Primo Agreement for performing work carrying a higher rate of pay than the employee’s ordinary Job Role/classification, are payable when employees are absent on personal/carers leave and for public holidays not worked, where the employee would have had usual rostered hours if the day had not been a public holiday. The starting point is the text of the disputed term – clause 5.3, read as a whole and in context.
Clause 5.3 of the Primo Agreement is found in clause 5 which deals with the subject of “Wages” and is in the following terms:
“5.3 Higher Duties
An Employee who is required by the Company on any day or shift to perform work carrying a higher rate of pay than their ordinary Job Role/classification, and this is not for the purpose of training, shall be paid as follows:
5.3.1if the higher-level work is performed for two hours or more, the higher rate for the whole of the day or shift; and
5.3.2 if the work is for less than two hours, the ordinary rate of the higher Job Role/classification for two hours and the balance of the shift at the Employee’s ordinary classification rate.”
On a plain reading, clause 5.3 of the Primo Agreement is engaged when an employee is required on any day or shift, to perform work carrying a higher rate of pay than the employee’s ordinary Job Role or classification. Where the employee is required to perform higher-level work, other than for the purposes of training, the higher rate attaching to that work is payable for the actual time spent performing the higher-level work or the full day or shift, depending on the number of hours during which the work is performed.
Further, it is implicit that the classification or Job Role carrying the higher rate of pay is not the classification or Job Role to which the employee is appointed and in which the employee normally works. The payment of a higher rate for higher level work attaches to that work and does not alter the ordinary Job Role or classification of an employee while the employee is performing the higher-level work. Rather, the rate paid to the employee for the work changes. Additional payments for the work attracting the higher rate – for example overtime or shift loadings – would apply to the rate for performing higher level duties, based on the fact that the applicable higher rate in the table in clause 5.2.1 is the employee’s ordinary hourly rate at the time the higher level work is being performed, for the purposes of shift allowances and overtime in clauses 6.1 and 8.7 respectively. There is nothing in the clause to suggest that the higher-level rate is payable when an employee is not performing higher level work.
Clause 4.1.3 states that the Classification Structure at clause 4.6 identifies Job Roles and the associated grade rates for those roles. Clause 4.1.4 provides that the Operations Manager at their sole discretion will determine the number of each Job Role required for the successful operation of the business. The Agreement provides for employees to be appointed to Job Roles. Clause 4.3.1 states that an employee is eligible to be appointed to a Job Role if they have undertaken training in and have been signed off as competent to perform the tasks within the Job Role. By virtue of clause 4.3.2, an eligible employee is not entitled to be appointed into a Job Role unless the business deems that there is a valid vacancy in such a role. Clause 4.3.3 provides that the Operations Manager will allocate an employee to a permanent Job Role when a vacancy for such a role occurs.
Job Roles have general descriptors for 6 Levels of operators set out in clause 4.5. The definitions or general descriptors for production operators in clause 4.5 also contain reference to tasks which are assigned to levels and set out in a “Job Role Grade Level Table – Production Operations” in clause 4.6. Relevantly in the present case, the Table in clause 4.6 refers to “Process Worker” at Level 2 and “Quality Checker” at Level 5.
Clause 9.2.9 of the Primo Agreement deals with payment for personal/carer’s leave and is in the following terms:
“9.2.9 Payment for personal/carer’s leave shall be at the Employee’s ordinary rate of pay as prescribed in paragraph 5.2 and shall not include shift allowance, weekend penalties, or any other allowance or penalty contained in this Agreement.”
This clause makes clear that personal/carer’s leave is paid at the Employee’s rate in clause 5.2, which sets out the minimum weekly/hourly rates of pay for Full-Time Production Employees from Classification Level 1-6. As noted above, Job Roles are allocated to Classification Levels in accordance with the table in clause 4.6 and employees are appointed to Job Roles as provided in clause 4.3. There is no indication in clause 9.2.9 or elsewhere in the entirety of that clause to indicate that an employee who has been required to perform work carrying a higher rate of pay than their ordinary Job Role/classification, on a day or shift proximate to the day or shift on which the employee takes personal/carer’s leave, is entitled to be paid at the higher rate.
Clause 9.8.8 of the Primo Agreement deals with the entitlement of employees to payment for a public holiday not worked. The clause provides as follows:
“9.8.8 Entitlement to payment for public holidays not worked
9.8.8.1Employees other than casual Employees shall, subject to paragraph 9.8.8.2, be entitled to payment at their ordinary time rate for a public holiday that is not worked, based on the usual rostered hours they would have worked on that day had it not been a public holiday.
9.8.8.2Provided that where a public holiday falls on a Saturday or Sunday and is not worked by an Employee, an Employee shall not be entitled to an ordinary day’s pay unless the Employee would have usually been rostered to work on that day. Rosters shall not be changed for the purpose of causing an Employee to lose an entitlement to a public holiday.”
Again, there is no indication in clause 9.8.8 that an employee who has been required to perform work carrying a higher rate of pay than their ordinary Job Role/classification, on a day or shift proximate to a public holiday on which the employee would be rostered to work if the day was not a public holiday, is entitled to be paid for the public holiday not worked, at the higher rate.
It is axiomatic that an employee who is absent on personal/carer’s leave or on a public holiday, is not performing work, nor required to perform work at all, much less, work carrying a higher rate. The provisions dealing with payment for personal/carer’s leave and public holidays not worked, can be contrasted with clause 9.1.4 dealing with payment for annual leave. Relevantly, after prescribing at clause 9.1.4.1 that that employees are paid for annual leave at “the Employee’s ordinary rate of pay” excluding weekend penalties, shift allowances or other allowances ordinarily payable to the employee, clause 9.1.4.2 goes on to provide:
“9.1.4.2 An Employee who performs higher duties in accordance with paragraph 5.3 during the period four weeks prior to the commencement of annual leave will be paid based on an average of their ordinary time earnings (excluding any weekend penalties or any shift or other allowances) for the four complete pay periods immediately prior to the annual leave being taken.”
These clauses indicate that the drafters of the Primo Agreement turned their minds to circumstances when employees absent from work would be entitled to be paid the rates under clause 5.3 of the Primo Agreement and decided that these amounts would be payable to employees absent on annual leave and would not be paid to employees on personal/carer’s leave or public holidays.
That the parties to the Primo Agreement turned their minds to specifying the circumstances in which amounts are payable, is also indicated by clause 6 dealing with allowances. That clause provides that allowances are paid as either percentages (in the case of shift allowances) or dollar amounts. With respect to shift allowances, clause 6.1.7 makes clear that these allowances are paid separately and do not form part of an employee’s ordinary time rate of pay for other purposes of the Agreement – for example, penalty rates and overtime. Hourly allowances are generally stipulated as being payable for ordinary hours worked.
As is the case with the higher-level rate under clause 5.3, the annual leave payment provisions in clause 9.1.4.3 deal with shift loadings and provide for employees to be paid an amount while on annual leave to recognise that the employees is paid shift loadings while at work. These provisions indicate that where an allowance or additional amount is required to be paid in circumstances when an employee is not at work, the Agreement specifies those circumstances. The Primo Agreement does not specify that the Higher Duties payment in clause 5.3 is paid at any time the employee is not at work and required to perform the duties, except for the provisions relating to annual leave. It is also the case that those provisions do not entitle an employee to the higher duties payment for the entire period of annual leave, simply on the basis that the employee was required to perform higher duties before the period of annual leave and will be required to do so on return to work. Rather, the entitlement to the higher duties payment is calculated by averaging the employee’s ordinary time earnings which include the ordinary hours the employee was paid at the higher rate, for a four-week period prior to the period of leave.
The text of the clause 5.3 of the Primo Agreement, in the context of the Agreement, read as a whole, supports the construction advanced by Primo. A further contextual matter supporting this construction is that the provisions in clauses 5.3 and 9.1.4.2 of the Agreement have the same effect as clauses 16.10 Higher duties and 25.3(c) Payment for annual leave of the Meat Industry Award 2020 (Award). The Award refers to the National Employment Standards (NES) with respect to Public Holidays and Personal/carer’s leave. While the Primo Agreement stands alone and supersedes the Award, the Agreement was assessed against the Award for the purposes of deciding whether it passed the better off overall test on approval.
For these reasons, I accept the argument advanced by Primo that clause 5.3 is not engaged while an employee is absent on leave. There is no entitlement for employees to receive the payment provided for in clause 5.3 other than when they are required on a day or shift to perform work carrying a higher rate of pay. An employee cannot be required to perform work at a higher level, on a day or shift, while on leave. Clause 9.1.4.2 provides employees who have performed work carrying a higher rate of pay in the four weeks prior to taking annual leave, with higher pay for the annual leave based on an average of their ordinary time earnings for the four complete pay periods prior to taking annual leave. time earnings. This is the only circumstance provided for in the Primo Agreement where the higher-level rates in clause 5.3 are specifically said to be payable to an employee on leave.
The Hans Agreement
The Hans Agreement, included a similar clause to clause 5.3, outlining the rate of pay for employees performing higher duties as follows:
“5.2.5 Mixed Functions
5.2.5.1Any Employee who is required on any day to perform work for which a higher rate of wage is prescribed, and this is not for the purpose of training, shall be paid as follows:
5.2.5.1.1 If more than 4 hours on any day, the higher rate for the whole of such day
5.2.5.1.2 If 4 hours or less then payment of the higher rate for the hours worked.”
The Hans Agreement also included virtually identical provisions in relation to the appointment of employees to Job Roles and classifications but did not include a provision requiring payment of higher-level rates to employees on annual leave, and stated that weekend penalties or other allowances were excluded while an employee was on annual leave and instead the 17.5% payment in that clause applied. For the reasons set out above, notwithstanding that the clauses are not in identical terms, the payment for Mixed Functions (higher duties) in clause 5.2.5 of the Hans Agreement was only payable when an employee was at work, performing work for which a higher rate was prescribed.
NES provisions
Clause 2.4 of the Primo Agreement provides that the Agreement is read and interpreted in conjunction with the NES and that where there is inconsistency and the NES provides a greater benefit, the NES prevails. The Agreement cannot in any event exclude the NES and to the extent a term of the Agreement does exclude the NES, that term has no effect by virtue of ss. 55 and 56 of the FW Act. Accordingly, unless the NES provides for employees to be paid amounts for higher duties under clause 5.3 of the Agreement while absent on personal/carer’s leave or for public holidays not worked, resulting in the NES providing a greater benefit than the Agreement, the provisions of the Agreement operate so that employees are not entitled to be paid the amount in clause 5.3 for higher level work when absent on personal/carer’s leave and for public holidays not worked.
Section 99 of the FW Act provides for the payment of paid personal/carer’s leave as follows:
“99 Payment for paid personal/carer’s leave
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.”
Section 116 of the FW Act provides for payment when an employee is absent on a public holiday as follows:
“116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part‑day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part‑time employee whose part‑time hours do not include the day of the week on which the public holiday occurs.”
The term “base rate of pay” is defined in s. 16 of the FW Act in the following terms:
“16 Meaning of base rate of pay
General meaning
(1)The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive‑based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
Meaning for pieceworkers in relation to entitlements under National Employment Standards
(2)Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:
(a)a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(b)an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(c)the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards.
Meaning for pieceworkers for the purpose of section 206
(2)The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.
The issue for determination is whether the Higher Duties allowance in clause 5.3 of the Primo Agreement is excluded from the calculation of Mr Li’s base rate of pay for the purposes of the NES entitlements to payment for paid personal/carer’s leave and for absence on a public holiday.
Although the decision of the Federal Court referred to by Primo in its submissions – APESMA v Bulga Underground Operations Pty Ltd,[28] concerned long service leave under legislation specific to the black coal mining industry, the Court was required to consider the definition of “base rate of pay” in s. 16(1) of the FW Act.
That case concerned an employee who was paid a yearly salary said to fully compensate for fulfilling all the requirements of his contract, including working on different shifts or rosters, and such hours as were necessary. An enterprise agreement made prior to the commencement of the FW Act and the employee’s contract included total employment compensation, an additional shift allowance and a notional base salary of 80% of the total compensation. The employee claimed that on termination of his employment, his accrued long service leave should be paid out based on his total compensation. The employer contended that the employee’s long service leave should be paid at the notional base salary.
The Court observed in relation to the employee’s remuneration that he was entitled to be paid the total salary irrespective of the total number of hours worked and that there were no circumstances, under the terms of the agreement and contract, in which he could be paid less than the total salary and or where he could be paid the notional base salary. The Court went on to state:
“The definition of “base rate of pay” in s 16(1) of the Fair Work Act makes it clear that the relevant incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or other amounts that are excluded from the determination of the base rate of pay are those that are not otherwise part of, or are payable in addition to, the rate of pay payable to the employee for his or her ordinary hours of work. That is particularly apparent from the use of the words “separately identifiable amounts” in paragraph (e). That indicates that the incentive-based payments and bonuses, loadings, allowances and overtime or penalty rates that are referred to in paragraphs (a), (b), (c) and (d) must also be separately identifiable; that they are identified or identifiable as payments separate to, or in addition to, the rate of pay payable to the employee for his or her ordinary hours of work.
There is also much to be said for the proposition that the general words “separately identifiable amounts” in paragraph (e) should be read ejusdem generis with the specific types of payments or amounts referred to in paragraphs (a) to (d). It would follow that, to fall within paragraph (e), the separately identifiable amounts must be of the same genus or have the same character as the payments or amounts referred to in (a) to (d). That genus would appear to be payments or amounts payable to an employee to compensate them for working beyond or outside the ordinary hours of work, or to compensate them for working in specific circumstances, or for achieving specific outcomes, that otherwise warrant additional compensation or allowance. It would not include payments to an employee for performing his or her ordinary hours of work or ordinary duties.
The Court also referred to the decision of the Full Court of the Federal Court in Maugham Thiem Auto Sales Pty Ltd v Cooper[29] where a shift penalty was found to be a separately identifiable amount and therefore excluded from the calculation of base rate of pay, and observed that this case could be distinguished on the basis that the shift penalty was separately identifiable and was not payable if the employee was not required to work the shift that attracted the payment.
The same principles can be applied in the present case – albeit in the converse. Mr Li’s ordinary Job Role/classification was the minimum he was entitled to be paid under the terms of the Primo Agreement. If Mr Li was required by the Company, on any day or shift, to perform work carrying a higher rate of pay than that prescribed for his ordinary Job Role/classification, he was entitled to be paid for that work at the rate prescribed for the Job Role/classification carrying the higher rate. The difference between the prescribed rate in the wages table at clause 5.2.1 of the Primo Agreement for the Job Role/classification to which Mr Li was appointed, and the rate in the wages table for the Level at which the Job Role/classification encompassing the higher duties was set out, is a separately identifiable amount. That amount is of the type of payments or amounts in (a) to (d) of s. 16(1) of the FW Act. It was paid to Mr Li to compensate him for achieving a specific outcome or for working in specific circumstances, that warranted additional compensation or allowance.
In this regard, Mr Li was appointed to the Job Role of Process Worker classified at Level 2 of the classification structure in clause 4.6 and entitled to be paid as a minimum, the rate of Level 2 as specified in clause 5.2.1 of the Primo Agreement. On days or shifts when Mr Li was required to perform work as either a Multivac Operator or a Quality Checker, with both Job Roles being classified at Level 5 of the classification structure, Mr Li was entitled to be paid at the Level 5 rate for either the time spent performing the higher duties or the whole day or shift, in accordance with the provisions in clause 5.3. That additional payment was a separately identifiable amount that was not payable to Mr Li when he was not required to perform the higher duties. Further, the fact that the higher duties were not Mr Li’s ordinary duties, and that they were attached to a rate of pay that was higher than his ordinary rate of pay, is the basis of Mr Li’s entitlement to be paid that higher rate.
Accordingly, where a higher rate of pay is paid to an employee pursuant to clause 5.3 of the Primo Agreement, that rate is not the employee’s base rate of pay, because it is a separately identifiable amount and is excluded by s. 16(1)(e) of the FW Act. As a result, the NES does not provide a greater benefit than the Agreement. No inconsistency with the NES to the detriment of employees arises. It is also the case that to the extent that the Primo Agreement (and the Award) provide for the averaging arrangement with respect to payments for higher level work in the four weeks prior to annual leave being taken, those provisions exceed the NES entitlement with respect to payment for annual leave, and no inconsistency arises. It should also be noted that the NES expressly contemplate that an employee’s base rate of pay may be less than the employee’s full rate of pay, as indicated by the definition of the latter term in s. 18 of the FW Act.
The Hans Agreement contained essentially the same provisions and was not inconsistent with the NES for the reasons set out above in relation to the Primo Agreement.
Consideration
For these reasons, I do not accept the AMIEU submission in relation to s. 16 of the FW Act. In my view, the base rate during the periods of leave subject of the claim, is Mr Li’s substantive classification rate rather than the rate for the higher-level work Mr Li was performing immediately prior to taking leave. For reasons set out above, neither Mr Li’s classification nor his base rate of pay changed for the purposes of NES entitlements. Rather, he was entitled to be paid at a rate attaching to a higher classification, for a distinct period he was performing work carrying that higher rate of pay, as prescribed in the classification structures in both Agreements. The nature of this payment was specifically addressed and recognised by the provisions of the Primo Agreement relating to payment while Mr Li was on annual leave.
Contrary to the AMIEU’s submission, the higher duties payment is a separately identifiable amount payable only in particular circumstances referrable to time spent undertaking work carrying a higher rate of pay than that of the classification to which Mr Li was appointed. Clause 5.3 does not fix a base rate of pay for an employee performing higher duties. Rather it increases the employee’s classification rate for the period spent performing the higher duties and for other specified purposes provided for in the relevant Agreement – for example, overtime or shift loadings which are also referrable to specified periods of time and paid in addition to the ordinary time rate the employee is receiving when the overtime or shift is worked.
I do not accept the AMIEU’s argument with respect to the BOOT. For the Primo Agreement to have been found not to pass the BOOT on the basis that the Operations Manager may use discretion to assign employees to a lower-level classification, and then require them to perform higher duties on a semi-permanent (or even permanent) basis, would have required more than an assertion that this may occur.[30] I am also of the view that the provisions in relation to appointing employees to Job Roles are not new in the workplace covered by the Agreement and were also found in the predecessor Hans Agreement. The AMIEU was a bargaining representative for both the Hans Agreement and the Primo Agreement and did not raise this issue at the time either of those Agreements was approved.
If an employee is spending a significant amount of time acting in a higher role, it is open for the AMIEU to notify a dispute under the dispute resolution term in the Primo Agreement and to seek to have the dispute resolved by the Commission. This occurred in the present case where the dispute as initially notified included an assertion that Primo was engaging employees at higher classification levels permanently, or for excessive periods of time, so that their entitlements in relation to public holidays and personal leave were reduced. This matter was addressed by the Company reclassifying Mr Li. I also note that an earlier opportunity to be reclassified as a Multivac Operator was rejected by Mr Li because of his preference to undertake QC rather than Multivac work and to wait until a QC role was available.
Conclusion
For these reasons, I answer the question for determination as follows:
Question:
For the purpose of s. 16 of the FW Act, what was Mr Site Li’s base rate of pay during the periods of personal/carer’s leave and public holidays taken between September 2019 and September 2021?
Answer:
During the specified period, Mr Li’s Job Role was a Process Worker classified at Level 2 in accordance with the classification structure in clause 4.6 of the Primo Agreement and clause 4.8 of the Hans Agreement respectively. Accordingly, during periods of personal/carer’s leave and public holidays when Mr Li was entitled to payment for when he did not work, taken between September 2019 and September 2021, Mr Li’s base rate of pay was, of the Level 2 rate in clause 5.2.1 of the Primo Agreement and clause 5.2.1 of the Hans Agreement.
VICE PRESIDENT
Appearances:
C Buckley of the Australasian Meat Industry Employees Union for the Applicant.
W Ash for the Respondent.
Hearing details:
2023.
Brisbane:
September 17.
[1] [2023] FWC 570.
[2] Exhibit A1 – Witness Statement of Warren Earle dated 3 May 2023.
[3] Exhibit A2 – Witness Statement of Site Li dated 28 April 2023.
[4] Exhibit R1 – Witness Statement of Neil Stephenson dated 30 May 2023.
[5] Exhibit R1 – Witness Statement of Neil Stephenson at Annexure NS-2.
[6] Transcript of Proceedings on 17 September 2023 at PN187 – PN190.
[7] Ibid at PN191 – PN194.
[8] Ibid at PN195.
[9] FW Act, ss. 19 and 116.
[10] Ibid at s. 16.
[11] Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; HCA 29 at [17] (‘Mondelez’).
[12] Ibid at [20].
[13] Transcript of Proceedings on 17 September 2023 at PN263.
[14] Ibid at PN264.
[15] Primo Foods Pty Ltd – JBS Primo Wacol Enterprise Agreement 2019, cl. 4.1.2 and 4.1.4 (‘Primo Agreement’); Hans Continental Smallgoods Pty Ltd Enterprise Agreement 2016, cl. 4.1.2 and 4.1.4 (‘Hans Agreement’).
[16] Primo Agreement, cl. 4.5.1; Hans Agreement, cl. 4.7.1.
[17] Primo Agreement, cl. 4.6, 3.2.1 and 4.1.1.
[18] Ibid at cl. 4.1.4.
[19] Ibid at cl. 4.3.2.
[20] Project Blue Sky Inc (1998) 194 CLR 355; City of Wanneroo v AMACS (2006) 153 IR 426 at [53]; Paper Australia Pty Ltd v AMWU (2017) FWCFB 1621.
[21] [2019] FCA 1960.
[22] (2020) 271 CLR 495; HCA 29.
[23] Mondelez at [25].
[24] [2017] FWCFB 3005 at [114].
[25] [2022] FWCFB 7.
[26] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018]
FCAFC 131, 264 FCR 536 at [197].
[27] Op. cit. at [29].
[28] [2019] FCA 1960.
[29] [2014] FCAFC 94.
[30] Shop Distributive and Allied Employees Association v Prouds Jewellers Pty Ltd [2020] FWCFB 4864 at [20].
Printed by authority of the Commonwealth Government Printer
<PR770448>
1
10
0