Australasian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd

[1999] FCA 1187

FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd [1999] FCA 1187

INDUSTRIAL LAW – terms of employment – construction of award – whether delay caused by empty pins “an interruption of work due to any other cause”

Workplace Relations Act 1996 (Cth)

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION AND RAYMOND JOHN MURPHY v AUSTRALIA MEAT HOLDINGS PTY LIMITED
Q 108 of 1999

WILCOX, MOORE & DOWSETT JJ

27 AUGUST 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 108 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
First Appellant

RAYMOND JOHN MURPHY
Second Appellant

AND:

AUSTRALIA MEAT HOLDINGS PTY LIMITED
Respondent

JUDGES:

WILCOX, MOORE & DOWSETT JJ

DATE OF ORDER:

27 AUGUST 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 108 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
First Appellant

RAYMOND JOHN MURPHY
Second Appellant

AND:

AUSTRALIA MEAT HOLDINGS PTY LIMITED
Respondent

JUDGES:	WILCOX, MOORE & DOWSETT JJ
DATE:	27 AUGUST 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a judgment of Spender J of 25 March 1999 determining an application under s 413 of the Workplace Relations Act 1996 (Cth) and an application for orders under s 179. The applications were made by the Australian Meat Industry Employees Union (“AMIEU”) and Mr Raymond Murphy and raised the proper construction of cl 69(c) the Australian Meat Holdings Pty Ltd – Stuart (Townsville) – Interim Award 1995 (“the Award”). AMIEU and Mr Raymond (“the appellants”) now appeal against the judgment of the learned primary Judge.

2. In his reasons for judgment, Spender J made various findings of fact which are not in issue and which we do not repeat.  It is sufficient to note that the issue raised in the proceedings was the operation of cl 69(e) when boners in the boning room of the abattoirs are not engaged in boning carcasses during periods of several minutes when there are no carcasses presented on the chain.  That arises when pins on the chain are left empty to separate meat being processed at the abattoirs in order to comply with export regulations. 

3. Clause 69(e) provides:

   Delays and interruptions of work

   (e)       A boner employed as a piece-worker shall not be paid for or receive credit for waiting time or an penalty addition for making up lost production during work-on time in respect of any delay in starting work or any interruption of work due to any strike in the meat industry or by reason of circumstances brought about by the misconduct of employees of the employer, but in respect of delays in starting work or interruptions of work due to any other cause on any day or shift, such boner shall be paid at the appropriate waiting time rate (on the basis of the ordinary rate applicable to him on that day or shift in accordance with paragraph (d)(i) hereof and calculated on the basis that the daily rate is paid for a six hour day exclusive of smokos, laps, meal breaks and knife sharpening time) for all time which he has so lost in addition to any other payment payable under this clause.

   Provided that:

   (i)        This subclause shall not apply in respect of any period of breakdown of machinery, if the employer provides, at his expense and without increase in the tally of the team, sufficient additional labour to perform the work normally done by the machinery which has broken down.

4. The appellants submitted below and on appeal that the periods of several minutes when the boners are not engaged in boning when no carcasses are presented on the chain is “an interruption of work due to any other cause” and accordingly are entitled to a payment “at a waiting time rate”.  The learned primary Judge was correct in rejecting this construction of cl 69(c).  The critical question is what are “interruptions of work” for the purpose of the clause.  While cl 69(e) applies to boners engaged in team boning on a conveyor or rail, similar provisions apply to process workers engaged in killing and dressing (cl 54(f)) boners engaged in individual piecework boning at tables (cl 68(c)) beef slicers engaged in piecework slicing (cl 70(c)) and pieceworkers engaged in the revising or packaging of meat (cl 75C(e) – some words are missing from the print version of the Award in evidence).  Though the terms of these various clauses are not the same, they each refer to “interruptions of work”. 

5. The general structure of each clause is that the obligation on the employer to make payment does not arise if the interruption is caused by a strike or misconduct but, with certain exceptions (in some cases), does arise in relation to any other interruption.  The exceptions when there is no obligation to make payment are when the interruption is caused by a breakdown in machinery and the employer takes specified steps to deal with the breakdown, or work can continue for some other reason.  What is meant by “interruption” can be gleaned from the identified interruptions where no payment need be made.  They are all references to events that are not part of the scheduled operation of the abattoirs caused for specified reasons.  That is to say, they are unusual or extraordinary events that, though they might occur comparatively frequently, are disruptions to the ordinary scheduled work.  But they are events for which the employer should not be held responsible, either because they were caused by the conduct of employees of the employer or other employees in the industry who engage in industrial action or because the employer has taken steps to allow work to continue, or because work can continue by other means.  The purpose of cl 69(e), in our view, is to make the employer liable to make payment if there is a disruption to the ordinary scheduled work which might make it difficult for an employee to reach tally within ordinary hours.  The employer also has an obligation to make payment under those clauses if there has been a delay in starting work.  Again that is an event which is not part of ordinary scheduled work. 

6. The learned primary Judge found, as a matter of fact, that the creation of the gaps in the chain to separate meat was part of the normal scheduled work arrangements at the abattoir.  That this is the normal scheduled work is consistent with the scheme of the Award evident in cl 69(c)(iii) and cl 69(f).  It follows, in our opinion, boners are not entitled to payment under cl 69(e) for periods when they are not engaged in boning because of the gaps in the chain.

7. The appeal should be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             27 August 1999

Counsel for the Appellants:	Mr W R Haylen QC
Solicitor for the Appellants:	Nall Payne Solicitors
Counsel for the Respondent:	Mr A K Herbert
Solicitor for the Respondent:	Australian Meat Holdings (In House)
Date of Hearing:	18 August 1999
Date of Judgment:	27 August 1999