Australasian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd
[1999] FCA 292
•25 March 1999
FEDERAL COURT OF AUSTRALIA
Australasian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd [1999] FCA 292
INDUSTRIAL LAW – awards - interpretation of award clause “interruptions of work due to any other cause on any day or shift” – where “interruption” alleged to be delay caused by ‘pins’ designed to hold animal carcasses in an abattoir being left empty and causing abattoir “piecework boner” employees to be briefly idle – where compliance with Australian Quarantine and Inspection Service and AUS-MEAT hygiene, quality control and export licensing standards the reason for ‘pins’ being left empty
Australian Meat Industry Employees Union, Newcastle & Northern Branch v Australia Meat Holdings Pty Ltd, (Industrial Relations Commission of New South Wales, unreported, 19 October 1994) not followed
Australia Meat Holdings - Stuart (Townsville) - Interim Award 1995 - cl 69(e)AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v AUSTRALIA MEAT HOLDINGS PTY LTD (ACN 011 062 338)
Q 74 OF 1999
SPENDER J
25 MARCH 1999
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 74 OF 1999
BETWEEN:
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
First ApplicantRAYMOND JOHN MURPHY
Second ApplicantAND:
AUSTRALIA MEAT HOLDINGS PTY LTD (ACN 011 062 338)
RespondentJUDGE:
SPENDER J
DATE OF ORDER:
25 MARCH 1999
WHERE MADE:
BRISBANE
THE COURT DECLARES THAT:
On a proper interpretation of cl 69(e) of the Australia Meat Holdings - Stuart (Townsville) - Interim Award 1995, the phrase “interruptions of work due to any other cause on any day or shift” does not include the period during which “missing pins” pass a boner’s station, the “missing pins” being due to a change in the category of animal carcass being boned.
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
QG 74 OF 1999
BETWEEN:
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
First ApplicantRAYMOND JOHN MURPHY
Second ApplicantAND:
AUSTRALIA MEAT HOLDINGS PTY LTD (ACN 011 062 338)
Respondent
JUDGE:
SPENDER J
DATE:
25 MARCH 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application pursuant to s 413 of the Workplace Relations Act 1996 (“the Act”) for an interpretation of sub-clause 69(e) of the Australia Meat Holdings - Stuart (Townsville) - Interim Award 1995 (“the Award”) and for orders pursuant to s 179 concerning alleged underpayment of amounts to an employee.
Section 413 provides:
“(1) The Court may give an interpretation of an award on application by:
(a)the Minister; or
(b)an organisation or person bound by the award.
(2)The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.”
The first applicant, the Australasian Meat Industry Employees Union, is an organisation of employees registered pursuant to the Act. The respondent, Australia Meat Holdings Pty Ltd is and was at all material times an incorporated body pursuant to the Corporations Law, and it and the first applicant are and at all material times were respondents to the Award. The second applicant, Mr Murphy, is and was at all material times an employee of the respondent as a pieceworker boner, a classification of employment regulated by the Award.
Clause 69(e) of the Award provides:
“ (e) A boner employed as a piece-worker shall not be paid for or receive credit for waiting time or any 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 (b)(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 sub-clause 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.
When there is a change in the category of animal carcass that Mr Murphy is to bone in the course of his employment, no carcass is placed on a pin or a number of sequential pins connected to the moving chain of production that supplies work to the piecework boners. The number of “missing pins” varies, but it is usually either one, five or ten pins. One “missing pin” would pass a boner in approximately twenty-two seconds, five “missing pins” in approximately two minutes, and ten “missing pins” in approximately five and a half minutes.
The short point is whether the delay associated with the separation of batches of different categories of animal carcass by means of “missing pins” in the ordinary course of the abattoir’s operation is an “interruption of work” within sub-clause 69(e).
The process at the respondent’s Stuart (Townsville) plant is as follows:
The boning room operates on a production line system. Carcasses to be boned are moved through the boning room on hooks which are attached to a moving chain and are evenly spaced along a rail which runs past each work station. As the carcass passes each work station the boner on that station performs his allocated task on the carcass. The speed of the chain is able to be varied and is regulated by the employer to provide an even distribution of work throughout the boning room and throughout the day. Clause 69(f) of the Award deals with regulation of conveyors and provides:
“The speed of conveyors shall be regulated and controlled by the employer so as to provide as near as practicable an even distribution of maximum unit tally, including an agreed tolerance, over the ordinary hours of work.
The resulting units per hour rate shall then be applicable for all levels of tally.”
Both sub-clause 69(e), the interpretation of which is sought, and sub-clause 69(f) are part of clause 69 headed “PIECEWORK BONING - TEAM BONING ON CONVEYOR OR RAIL”. Clause 69 commences:
“ Application of clause
(a) This clause shall apply to the boning of meat under a system whereby a side, quarter or other piece of meat travels on a conveyor or rail to members of a team each of whom carries out part of the boning thereof in sequence, at the following works:
Australia Meat Holdings Pty Limited - Stuart (Townsville)
Duties of a team
(b)(i) The duties of a piecework team under this clause shall be to bone the side, quarter or other piece in accordance with the requirements of the employer, and to perform any task incidental to such boning. A piecework team shall within the ordinary hours of work on any day or shift complete such tally and work beyond tally per member of the team as the employer may require within the ordinary hours of the employment prescribed by this award.
(ii) A member of a piecework team shall perform such tasks or combination of tasks and/or parts of tasks as the employer may require.
…”
Most of the meat processed at the Stuart plant of the respondent is exported. There is a number of statutory and regulatory conditions and requirements with which the respondent must comply in order to maintain the licences and authorities which permit the respondent lawfully to export meat. One authority which oversees the operations of the respondent is the Australian Quarantine & Inspection Service (“AQIS”) and the other is AUS-MEAT. AQIS deals with health and hygiene issues and requires the premises at which the export product is processed to be licensed by it. AUS-MEAT is concerned with trade descriptions, labelling and quality control procedures, in relation to the accreditation of meat “export establishments”.
Meat Order 38/87, an order made under s 16H of the Australian Meat and Live-stock Corporation Act 1977 (now repealed), and remaining in force by virtue of s 8 of the Meat and Live-stock Industry Legislation Repeal Act 1995, states in part:
“3. interpretation
‘aus-meat Accredited Export Establishment’ means an establishment accredited by the Corporation as meeting uniform standards relating to the quality, grade, class and description of meat for export.
4. order
The holder of a meat export licence shall not export meat or sell meat for export unless:
(a)the livestock, from which the meat is derived, is slaughtered at an aus-meat Accredited Export Establishment;
(b)the meat, if boned, is boned at an aus-meat Accredited Export Establishment; and
(c)the meat, if packaged, is packaged at an aus-meat Accredited Export Establishment; and
(d)the meat, if processed, is processed at an aus-meat Accredited Export Establishment.”
A significant feature of the quality control standards demanded by the regulatory requirements that is relevant for present purposes is that certain categories and grades of meat have to be kept well separated from each other during processing to ensure that there is no confusion as to the identity of each piece of meat which is processed and packed. Section 7 of the Export Control Act 1982 provides that the export of prescribed goods is prohibited unless the conditions and restrictions in the regulations are complied with. The Export Control (General) Regulations provide in reg 4 that meat is a prescribed good.
AUS-MEAT defines three basic categories of beef, namely cow, ox and bull, and deals with specifications relating to the treatment of portions of meat from these categories of beef. These specifications are agreed by the respondent and its customers, and are then approved by AUS-MEAT.
The AUS-MEAT quality assurance manual requires as a necessary part AUS-MEAT standards for accreditation of meat exporters that primary categories and/or secondary categories must be clearly identified and segregated to allow sides/quarters to be boned, sliced and packed in accordance with company specifications and legislative requirements. The boning room supervisor is responsible for ensuring separation of categories and, where landing tables have an amount of product on them, they must first be cleared before meat of another category can be dropped on to the tables. The segregation of categories must be easily discernible to any AQIS officer who is in the boning room or conducting an audit of the plant.
It is accepted by the parties to this application that it is necessary for compliance with the regulatory requirements that categories of meat are physically separated at the point of changeover in order to ensure that the meat processed from one category is not mistakenly placed with meat processed from the previous category or grade. It is thus necessary that the respondent have procedures in place to ensure that every piece of meat packed complies with the specifications, and that there is no mixing of categories.
The procedure then is that, as the side of meat travels along the rail system, pieces of meat are cut from the carcass by the boners and dropped on to tables to be further processed by the slicers and packers. Whilst the side of meat is on the rail, the category or grade of the side is usually easily identifiable because the sides are in order and cannot be mixed. Once a piece of meat is cut from the side and separated, its category or grade is not readily identifiable. Consequently, to ensure the correctness of labelling on the carton, all portions of meat from one grade or category must be physically separated from portions of meat from other grades or categories, as pieces of meat of different grades or categories can be confused if placed on the slicer’s table at the same time.
The aim of the system is that, in order to ensure the physical separation of grades or categories, all meat from one grade or category is cleared from the slicer’s table before meat from the next grade or category is dropped on to the table. This is done by allowing sufficient time to permit the slicers and packers to clear the meat from a previous category or grade from the tables before any other piece of meat of a different grade or category is placed on those tables. Because the chain operates continuously to bring new sides to the boners, in order to ensure that the boners do not drop any meat on to the table before meat from a previous category is cleared, a physical gap in the chain is made by not placing any side on a certain number of pins. The consequence of these “missed pins” is that, as the gap moves around the room, some of the boners will be physically engaged in cutting meat from the carcass, while others will be faced with a gap. The chain operates continuously, so only the boners whose station is being passed by the gap will not be faced with a side of meat, and all other boners, slicers and packers in the room will be fully occupied at that time. For example, when there are five missed pins, only five boners in the room will not physically be boning at any one time, and the membership of that group will progressively change, as the gap moves around the room. A larger number of missed pins is required for the separation between bull and ox than is required between ox and cow, because every portion from a bull carcass must be separately packed as “bull”, whereas only the primal cuts from the ox and cow are separately packed and the residue is all packed as “cow”. A greater number of pins is therefore required for “bull” to ensure that all portions of bull are cleared before the next category is processed.
Mr Twist, the boning room supervisor, has found that to ensure separation for bull product, a gap of ten missed pins is required, and for the changeover from ox to cow, five missed pins are required. For the changeover between the grades of ox, only one missed pin is required.
The bottom line for this procedure is that if categories or grades are inadvertently mixed together, all of the meat involved must be downgraded to the lowest grade involved in the mix. Bull, however, cannot be downgraded and no product that is not bull can be packed as “bull”.
The calculation and setting of the speed of the chain is a complex process. The amount of work that must be performed on a side generally depends on the category of beef. The amount of work described under the Award tally system is by reference to “units”. Each side of beef represents a number of units, depending upon the size, weight and sex of the animal. As cl 69(f) requires the respondent to provide an even distribution of work to boners throughout the day, the respondent needs to vary the speed of the chain during the working day, depending on the average amount of work to be done on the sides of each category. The speed has to be set not by reference to the sides passing each boner, but rather by reference to the number of units represented by such sides. The aim of the boning room supervisor is to provide each boner with approximately twelve units per hour, because this will deliver a quantum of work close to maximum tally over 6.6 hours. With respect to each basic category of carcass, the number of units that can be processed each hour is divided by the average units per side in each category to get the number of sides that can be processed per hour, from which is derived the number of seconds per side. I will call this figure “the speed of the chain”. The speed of the chain is set manually and the aim is to set the actual speed fairly close to the calculated projected speed for each category. Each time there is a change in the category of carcass to be processed, the speed of the chain is increased or decreased depending on what is the next category of carcass and the speed that has been calculated for that category. The boning room supervisor waits until the missed pins are half way around the room before the change in the speed of the chain is implemented.
Mr Billy Horwood is a slicer and, during the period relevant to this application worked a short distance away from Mr Murphy, the second applicant, who is a boner in the boning room. Mr Horwood says the way the boning room is organised, boners drop the cuts of meat they have taken from the carcass on to a conveyor, which takes it to the slicers. From 21 June 1996 to 21 October 1996 he diarised the time in respect of missing pins, using a stopwatch. By way of example, his records for 25 June 1996 reveal:
“
Date Time Pins Lost Time Lost (mm.ss) Reason 25/6/96 8:17 AM 10 5.48 Changeover to 12 cut Jap 9:36 AM 1 0.24 Changeover to Jap 10:23 AM 1 0.24 Changeover to Jap 11:00 AM 1 0.24 Changeover to Heifer/Ox 11:47 AM 1 0.24 Changeover to 12 cut Jap 12:24 AM 1 0.24 Changeover to 3 cut Jap 1:17 AM 5 2.25 Changeover to Cow ”
The references to “12 cut Jap”, “Jap” and “3 cut Jap” are to particular grades for the Japanese market.
It is important for present purposes to recognise that the duration of any particular gap of pins is not the same for each boner, because this duration depends on what position on the chain the boner is working. This is a consequence of the fact that when a changeover occurs, the speed of the chain is altered at the time when the missed pins are half way round the boning room. By way of illustration, if there was a changeover from bulls to ox, there would be ten “missed” pins. The amount of time which elapsed in relation to boners at the start of the chain would be ten times the speed of the chain for bull. The amount of time elapsed in relation to boners at the end of the chain would be ten times the speed of the chain for ox, which is likely to be faster. The amount of time for each of the boners at other points of the chain would depend on how many “missed” pins passed the particular boner at each speed. This has practical consequences because it means that in respect of any separation of category of meat by a “missed’ pin or “missed” pins, if that procedure involved an “interruption of work”, the interruption of work would not be the same for each boner working on the chain.
Even where there are no missed pins, there will be occasions when a particular boner is waiting for the chain to catch up to him due to his completing his task more quickly than the speed of the chain requires, and so for a short period he will not be physically engaged in the process of cutting a side of beef.
The submission by the applicants is that the physical gap in the chain caused by the missing pin, so as to effect the separation of different categories of carcasses because of regulatory requirements, is an “interruption to work” within cl 69(e) and entitles the second applicant, Mr Murphy, to additional remuneration for “waiting time”. It is said that the absence of the carcass interrupts the boner’s work, it being said that the work which Mr Murphy does requires him to be working on a carcass which is presented to him on the chain. It was accepted by Mr Kent, counsel for the applicants, that:
“It may be that the procedure of missing pins is a necessary and integral part of the activities required for the safe, hygienic and lawful processing of meat. However this does not compel the result that this procedure does not constitute an interruption of the second applicant’s work.”
Reliance is placed on a decision of the Full Bench of the Industrial Relations Commission of New South Wales in The Australian Meat Industry Employees’ Union, Newcastle & Northern Branch v Australian Meat Holdings Pty Ltd, of 19 October 1994. That decision concerned cl 12 of the Butchers’ Wholesale (Newcastle & Northern) Award, which relevantly provided:
“(i) An employee who is entitled to payment for overs as set out in clause 16, Overs Rate for Slaughterpersons and Following Labour, shall not be paid for, or receive credit for, waiting time in respect of any delay in starting work or any interruption brought about by the misconduct of employees of the employer, but in respect of delays in starting or interruptions of work due to any other cause exceeding the aggregate of fifteen minutes on any day….”
It was contended on behalf of the Union that the ten link gap lasting six minutes was clearly an interruption to an employee’s work. The Full Bench said:
“An interruption…is a break in an otherwise continuous process which in our opinion is an apt description of what occurs here.”
That case was concerned with “slaughterpersons engaged on a tally system whose finishing times are dependent on the completion of the daily tally plus overs”. The waiting time was to apply to interruptions exceeding an aggregate of fifteen minutes on any day. Moreover, cl 13 of that Award provided for a minimum number of animals to be killed per slaughterperson per day and provided further that the speed of all mechanical chains was to be controlled by the employer. The case proceeded on the basis of agreed facts and there was no oral evidence called. As indicated, the case turned on the view that there was a break in an otherwise continuous process constituted by the ten link gap. While the differences between that case and the matter presently before the court are significant, they do not, in my opinion, constitute a basis on which the decision might be distinguished. However, I respectfully disagree with it.
The purpose of cl 69(e) is to compensate a worker for lost production. The pieceworker method of payment means that an employee is paid according to the amount of meat that is processed. Where there is a breakdown in machinery or some other event which interrupts that work and which is not brought about by the misconduct of employees, they are entitled, pursuant to the Award, to waiting time. In this case, the need to have physical separation of the different categories of meat does not require employees to stay at work longer than normal to achieve tally. The gaps caused by missing pins do not diminish the workers’ right to earn extra income in the form of “overs” which may be performed within normal hours if tally is achieved early. This is because, if there were no missing pins, cl 69(f) would require that the chains be set to run marginally slower than they are when regard is had to the number of missing pins required to achieve physical separation.
Determination of the meaning of “interruption of work” in cl 69(e) can be assisted not only by noting the reference in that clause to “lost production”, but also by reference to the examples of interruption of work given in the clause, namely, a strike in the meat industry or breakdown in machinery.
It is clear that there is no interruption of work in the sense that the process of boning carcasses of meat comes to a stop: the chain does not stop and only some of the boners will for a brief time be idle while the missed pins pass their station, the membership of that group progressively changing as the gap moves around the boning room. In addition, as earlier indicated, the consequence of missed pins on each particular boner will not be the same, due to the fact that the speed of the chain is changed only when the gap has passed half way around the room. There is not in respect of any particular physical gap the same “interruption” for each boner on the chain while that gap is moving around the boning room.
The separation of categories and grades is an integral part of the boning process. In my opinion, that separation is not an “interruption to work”.
In my opinion, a boner’s work is not to be viewed as merely wielding a knife or some other implement at each carcass. His work is to be seen as his contribution to the work of the team, which is the sequential processing of meat for export. In the ordinary course there will be some element of waiting by a boner for the next carcass. That is an integral part of a boner’s work. Accordingly, it seems to me that where a boner, for reasons which are an integral part of the production process of the boning room, has to wait for the next carcass, this does not constitute “an interruption of work” within the meaning of cl 69(e).
Mr Murphy in cross-examination conceded that the delay in boning caused by one pin did not constitute an interruption to his work. However, it seems to me that there can be no difference in principle between a gap of one pin and a gap of ten pins where these are integral parts of the boning process and the regulatory requirements of the operation of the abattoir.
For the above reasons I declare that on a proper interpretation of cl 69(e) of the Award, the phrase “interruptions of work due to any other cause on any day or shift” does not include the period during which “missing pins” pass a boner’s station, the “missing pins” being due to a change in category of animal carcass being boned.
Finally, I note that the parties were agreed that, should the Court favour the interpretation sought by the applicants, the amount that the respondent should be ordered to pay to Mr Murphy is $160.00.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 25 March 1999
Counsel for the Applicant: Mr D R Kent Solicitor for the Applicant: Nall Payne Solicitors Counsel for the Respondent: Mr A K Herbert Solicitor for the Respondent: Ms J A Curtis Date of Hearing: 19 March 1999 Date of Judgment: 25 March 1999
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