"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v George Weston Foods Limited T/A Tip Top Bakeries

[2013] FWC 1240

[2013] FWC 1240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
George Weston Foods Limited T/A Tip Top Bakeries
(C2012/987)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
George Weston Foods Limited T/A Tip Top Bakeries
(C2012/5076)

Manufacturing and associated industries
COMMISSIONER CARGILL	SYDNEY, 13 MARCH 2013

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .

[1] This decision arises from two applications made pursuant to section 739 of the Fair Work Act 2009 (the Act) for Fair Work Australia, now the Fair Work Commission (FWC), to deal with a dispute. The applications were made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The applications describe the respective disputes in identical terms. The employer party to both disputes is George Weston Foods Limited trading as Tip Top Bakeries (George Weston or the company).

[2] The matters were the subject of a conciliation conference on 17 September 2012 but did not settle. Further discussions between the parties resulted in part of the disputes being resolved, however an issue concerning annual leave remained. By agreement of the parties that issue was listed for arbitration on 11 February 2013. At that hearing Ms Saunders represented both the AMWU and the CEPU and Mr Mead from The Australian Industry Group represented the company.

[3] The parties have prepared an Agreed Statement of Facts. It should be noted that there is no real issue between the parties as to the relevant facts. Rather, the dispute concerns the interpretation of the relevant industrial instrument and the National Employment Standards (the NES).

[4] The employees who are affected by the dispute are mechanical and electrical tradespersons engaged by the company at its Chullora site. Those employees and the company are covered by the Tip Top Bakeries (NSW) Maintenance Agreement 2012 (the Agreement). This Agreement came into operation on 5 June 2012 and has a nominal expiry date of two years from that date. Prior to the commencement of the Agreement the terms and conditions of the relevant employees were contained in individual contracts.

[5] The relevant employees are engaged as continuous shiftworkers and the dispute between the parties concerns the way in which annual leave is to be deducted from the accrued leave balance of each of those employees. It should be noted that there is no issue that the employees are each entitled to accrue 190 hours paid annual leave per year.

[6] There is also an issue between the parties as to the way in which annual leave which had accrued before the Agreement came into operation is to be recorded and paid out. However, the company’s position is that FWC has no jurisdiction to determine this particular matter.

[7] The details of the employees’ shift patterns and the relevant annual leave provisions are comprehensively set out in the Agreed Statement of Facts as follows:

“Shift Patterns

6. The maintenance departments of the site operate on a 2 shift basis: a day shift working between 6am and 6pm and a night shift working between 5.30pm to 5.30am.

7. The day shift is organized on a two-week averaging cycle, with employees working an average of 38 ordinary hours a week over that cycle.

8. Under this arrangement, day shift employees work four twelve-hour shifts one week and three twelve-hour shifts the next week.

9. Over the two week period, day shift employees work 76 hours of ordinary time and 8 hours of rostered overtime.

10. The night shift is organized on an eight-week averaging cycle, with employees working an average of 38 ordinary hours a week over the cycle.

11. Under this arrangement, night shift employees work four days on, four days off, for a total of 28 shifts over the eight week cycle.

12. Over the eight week cycle, employees work a total of 304 ordinary hours and 32 hours of rostered overtime.

13. For the purposes of the averaging system, each shift is viewed as constituting 10.857 ordinary hours and 1.143 hours of rostered overtime.

Annual Leave prior to the commencement of the Agreement

14. A number of employees were engaged on individual contracts which expressed their annual leave entitlements as “twenty-five days per year”.

15. Annual leave balances were displayed on employees’ payslips.

16. These balances were expressed in terms of days.

17. When an employee took annual leave for the duration of a shift:

(a) the balance on the employee’s payslip was reduced by one day;

(b) the employee’s annual leave balance was reduced by 7.6 hours.

Annual Leave under the Agreement

18. Sub-clause 5.1 of the Agreement provides the National Employment Standards under the Fair Work Act 2009 apply to employees covered by the Agreement, except where this Agreement provides a more favourable outcome.

19. Clause 33 of the agreement deals with annual leave.

20. As per clause 33.1, employees are entitled to the annual leave provisions provided for in the National Employment Standards.

21. The relevant employees to whom this dispute relates are shiftworkers within the meaning of clause 33.2 of the Agreement.

22. Annual leave accrues progressively throughout the year in accordance with the employee’s ordinary hours of work.

23. Under the Agreement, the ordinary hours of work for day workers, continuous shiftworkers and non-continuous shiftworkers are an average of 38 per week and must not exceed 152 hours in 28 days (sub-clause 29.4(a), 29.5(b) and 29.6(a)).

24. From the first pay period following the commencement of the Agreement, George Weston Foods changed the way annual leave balances were expressed on the employees’ pay slips.

25. Annual leave balances on the employees’ pay slips are now expressed in terms of hours.

26. When an employee takes annual leave for the period of one shift:

(a) the balance on the employee’s payslip is reduced by 10.857 hours;

(b) the employee’s annual leave balance is reduced by 10.857 hours.”

[8] For completeness, it should be noted in relation to paragraph 23 of the Agreed Statement of Facts as set out above, that clauses 29.5(c) and 29.6(b) of the Agreement permit the 38 ordinary hours per week for shiftworkers to be averaged over a period in excess of 28 days but not more than 12 months.

SUBMISSIONS OF THE UNIONS

[9] A written outline of the AMWU submissions was provided prior to the hearing. Ms Saunders also made oral submissions. In correspondence dated 8 February 2013 the CEPU advised that it supported and adopted the AMWU submissions.

[10] The AMWU submits that the settled approach to interpreting an industrial instrument is to give the relevant words their plain and ordinary meaning but not adopt a pedantic or literal approach. Regard should be given to the instrument as a whole as well as the context and purpose of the clause in question. It is not necessary to find an ambiguity. The AMWU relies upon a number of decisions: Kucks v CSR Limited (1996) 66 IR 183 @ 184; The Australian Workers’ Union, Western Australian Branch v Co-Operative Bulk Handling Limited[2010] FWAFB 4801 @ paras 6-14; Catholic Regional College Sydenham v Independent Education Union of Australia[2011] FWAFB 2784 @ paras 37-39; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 @ para 39; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; and, The Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 @ 212.

[11] The union submits that the decision in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 is instructive in understanding what is meant by context.

[12] The union also submits that the principles of construction of industrial agreements are closely related to those of statutory construction which can be summarised as: the starting point is the text of the legislation; the primary objective is to give effect to the purpose of the legislation as expressed in the text; and, in order to determine the meaning of words within the legislation, consideration must be given to context which includes not just the immediate sentence or paragraph but preferably the wider statutory provisions as well. The AMWU relies upon a number of decisions: Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky); and Collector of Customs v Agfa - Gevaert Ltd (1996) 186 CLR 389.

[13] The AMWU submits that the ordinary approach to interpretation should be followed in these matters.

[14] The union refers to the shift arrangements as set out in the Agreed Statement of Facts. It also refers to clause 33 of the Agreement and section 87(1) of the Act which sets out the entitlement of shiftworkers to five weeks annual leave per year. The AMWU notes that section 87(2) provides that annual leave is to accrue progressively throughout the year according to an employee’s ordinary hours of work.

[15] The AMWU submits that, because the relevant employees work 38 hours a week averaged over either a two or eight week period, they are entitled to five 38 hour weeks of annual leave under the Act and the Agreement. It is noted that neither of those instruments deals with the rate at which annual leave is to be deducted.

[16] The union submits that the company’s interpretation of the relevant provisions has the effect that, although employees accrue their annual leave based on their average ordinary hours of work, the leave is deducted on the basis of actual hours taken. This means that employees will not be able to consistently access five weeks of annual leave in one block. The union submits that employees will only be able to take 17.5 shifts of leave, being 190 hours of leave divided by the number of ordinary hours per shift of 10.857.

[17] The union acknowledges that, in certain circumstances, depending upon when leave is taken, employees may not suffer a disadvantage in terms of the taking of leave. However it submits that the company’s approach means that this is not always guaranteed and indeed the employees will suffer the disadvantage for about half of the year. The AMWU submits that this necessarily leads to a conclusion that George Weston is breaching the NES. In addition, the company’s interpretation is at odds with the relevant principles of interpretation.

[18] The AMWU notes that the Act refers to annual leave entitlements in terms of weeks. This contrasts with the predecessor legislation, the Workplace Relations Act 1996 (WRA) which referred to a quantum of hours. The union relies on the following decisions: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Ltd[2011] FWA 7723 @ [12] (BCS) and Australian Rail, Tram and Bus Industry Union and Australian Federated Union of Locomotive Employees v QR Limited trading as QR National[2012] FWA 3730 @ [86] (QR National).

[19] The AMWU submits that the interpretation of the meaning of “week” in those decisions should be followed. It is uncontroversial that a “week” ordinarily means a block of seven days rather than a number of hours. Similarly, a “day” should be given its ordinary industrial meaning of time worked within a 24 hour period. In the context of this matter, a working day for day workers means the period between 6am and 6pm and for night shift workers, the period between 5.30pm and 5.30am.

[20] The Agreement does not restrict the timing of annual leave to an employee’s sole discretion. In particular, clause 33.6 provides that, in certain circumstances, the company has the right to direct an employee to take leave at a time of its choosing. Furthermore, there is a general right for an employer to direct leave to be taken at times such as a Christmas shutdown. It follows that employees may be directed to take leave during periods when the consequence will be that they are unable to access five calendar weeks of annual leave.

[21] The AMWU submits that there is nothing in the Act or Agreement which supports George Weston’s interpretation of the way in which leave should be deducted. Rather, the union’s construction, that the leave should be deducted on the same basis that it accrues, is supported by paragraph 23 of the Fair Work Bill 2008 Explanatory Memorandum (Explanatory Memorandum).

[22] In circumstances where an employee’s ordinary hours are averaged, that is the relevant consideration for determining the rate at which leave both accrues and is deducted. Therefore, when a week of annual leave is taken, 38 hours should be deducted from the accrual and when a single day is taken, 7.6 hours should be deducted. This approach avoids inconsistency with the NES, will provide certainty to employees and simplify the process. Such an approach will also further one of the legislative purposes behind the introduction of the NES, namely, to simplify the rules surrounding employee entitlements.

[23] The union notes that relevant employees do not work shifts of variable length. Consequently there is no possibility that leave deductions would average out over a year. Decisions dealing with situations involving shifts of variable length are distinguishable: Transport Workers’ Union of Australia v Airport Fuel Services Pty Ltd Print M3222 and The Australian Workers’ Union v BP Refinery (Bulwer Island) Pty Ltd[2012] FWA 1197 (Bulwer Island decision). The union also notes that the latter decision concerned personal leave and its accrual rather than the deduction of annual leave.

[24] Clause 33.3 of the Agreement also supports the AMWU interpretation. It indicates that the parties did not intend there to be a direct correlation between hours actually rostered and hours deducted for annual leave.

[25] The union rejects the company’s submission concerning part-day absences on the basis that there is nothing to suggest that there has been any history of the relevant employees accessing annual leave in that way. The union also rejects the company’s concept of what is “the standard”. It submits that it is the outcome which should be standard, i.e. five weeks leave, rather than the method by which it is calculated.

[26] The AMWU also submits that the annual leave balances which had accrued under the individual contracts should effectively be restored to the “pre-Agreement” levels. The union submits that this issue falls within the jurisdiction of FWC because it is a direct result of the company’s application and interpretation of the Agreement.

SUBMISSIONS OF GEORGE WESTON

[27] A written outline of the company’s submissions was provided prior to the hearing. Mr Mead also made oral submissions.

[28] Mr Mead submitted that the real question to be determined is what a week means in the context of the NES and the provision of five weeks annual leave for shiftworkers. He submitted that, consequently, the union’s submissions in respect of the interpretation of agreements are largely irrelevant. Instead the focus should be on the ordinary principles of statutory interpretation about which detailed submissions are made.

[29] Section 15AA of the Acts Interpretation Act requires that regard be had to the purpose or object of the relevant legislation and that preference be given to a construction which promotes such a purpose or object. Section 15AB deals with the use of extrinsic material in the course of such consideration.

[30] The company relies upon a number of decisions which establish that “ambiguity” within the context of statutory interpretation is a wider concept than just verbal or grammatical ambiguity: Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSW CA 65 @ [116]; Wentworth District Capital Ltd v Commissioner of Taxation [2010] FCA 862 @ [34]; and, Parrett v Secretary, Department of Family & Community Services [2002] FCA 716 @ [33].

[31] The company submits that there are three important factors in the modern approach to statutory interpretation. First, it is context at first instance which is relevant, not just at a later stage when ambiguity has arisen. Secondly, context includes the mischief which the particular statute was intended to remedy. Thirdly, where a literal interpretation would lead to an inconvenient or improbable result, further regard should be had to the legislative intent behind the statute: CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384. The company also relies on: Newcastle City Council v GIO General Ltd (1997) 72 ALJR @ 104; Project Blue Sky; and Residual Assco Group v Spalvins (2000) 202 CLR 629.

[32] George Weston also submits that it is a fundamental rule of construction that, unless there is a demonstrated contrary intention, words in a statute should be accorded consistent meanings: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 @452: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; Taikato v R (1996) 186 CLR 454; Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; State of Queensland (Queensland Health) v Che Forest (2008) 168 FCR 532; and, Doughty v Martino Developments Pty Ltd [2010] VSCA 121.

[33] The company refers to the principal object of the Act as set out in section 3 as well as the NES, in particular, sections 62-64 dealing with maximum weekly hours and sections 86-94 concerning annual leave. It notes that the provisions relating to the accrual and payment of personal/carers leave in sections 96 and 99 are identical to the corresponding annual leave provisions. The company also notes the relevant provisions operate by reference to the concept of “ordinary hours of work” and that the parties agree that the Agreement provides that the relevant employees work 38 ordinary hours per week.

[34] George Weston submits that the AMWU has advanced a “false equation” between the formula for the rate of accrual of annual leave set out in the NES and the possible or probable rate at which the leave is actually taken. It submits that, contrary to the union’s assertion, the rate of accrual is not equivalent to the rate at which leave is taken.

[35] The company submits that the AMWU’s reliance upon paragraph 23 of the Explanatory Memorandum is misguided. It submits that the relevant sentence does no more than indicate that the statutory provisions concerning annual leave will operate by reference to an employee’s “ordinary hours”.

[36] The company submits that the union’s contention would visit significant unfairness on employers. It submits that section 90(1) clearly provides that there is an obligation to pay each employee on paid annual leave an amount based on the ordinary hours they would have worked during the relevant period of absence. The company bases this submission on paragraph 396 of the Explanatory Memorandum.

[37] George Weston submits that, if the union’s position was accepted, then for each day’s absence, an employee would have 7.6 hours deducted from their balance but be paid for 10.857 ordinary hours which they would have worked on that day. This would result in the employee receiving an additional payment in respect of an extra 3.257 hours per day (the difference between 7.6 and 10.857) or 81.425 hours in respect of a full year’s accrual. The company submits that such an outcome would be “extraordinary, unprecedented and unfair” and not intended by the legislature.

[38] George Weston also submits that the union’s position is at odds with the concept of a standard and would discourage rostering arrangements which may promote efficiency and productivity in business and undermine the object in section 3(a) of the Act.

[39] The Company submits that the union’s approach could not be applied when annual leave is accessed on a part-day basis. That would undermine flexibility and the object in section 3(d) of the Act. The company submits that the question of whether part-day absences are an issue for these particular employees at Chullora is not the point. The question to be determined is the proper meaning of the NES and consideration should be given to all possible circumstances in which annual leave might be taken.

[40] The company submits that its interpretation is supported by the Bulwer Island decision. It rejects the union’s submission that the decision is distinguishable because it deals with different issues. Although the decision deals with personal leave rather than annual leave, the company submits that it is relevant because the statutory provisions are the same. Further, while the decision concerned accrual of leave it also addressed the issue of deduction.

[41] George Weston rejects the AMWU’s submission that the meaning of a week is uncontroversial. It submits that the word “week” can have different meanings depending on the context: Dunlop Perdriau Rubber Company Limited v Federated Rubber Workers’ Union of Australia (1931) 46 CLR 329 @ 341; and Scott v Sun Alliance Australia Limited (1993) 178 CLR 1 @9. The company submits that, in the present circumstances, a “week” is ambiguous.

[42] It submits that the BCS and QR National decisions both apply a simplistic and narrow approach to the definition of a “week” and fail to have regard to the way in which the NES entitlement to annual leave evolved. The company notes that paragraph 57 of the regulatory analysis of the Explanatory Memorandum states that the NES will not result in a change to the quantum of annual leave. It submits that there is nothing in the different language used in the two statutory regimes, “hours” or “weeks”, which demonstrates any intention to increase the leave entitlements.

[43] The company also rejects the union’s submission as to the meaning of a day. It submits that the ordinary meaning of “day” is a calendar day of 24 hours: Gough & Gilmour v Peter Campbell [2009] NSWSC 1310 @ [43]; and, Moon v JLG Industries (Australia) [2011] FMCA 343 @ [13] - [17]. The company disputes the union’s submission that employees are entitled to five “calendar” weeks of leave and notes that, if the legislature had intended to provide such an entitlement, it could have made it clear.

[44] George Weston also rejects the AMWU submission concerning clause 33.3 of the Agreement. It submits that the clause merely demonstrates the parties’ intention that employees would be paid for both the ordinary hours and the regular overtime they would have worked had they not been on leave. This is not unusual in the circumstances.

[45] The company submits that the AMWU’s argument lacks logic in that the union contends that George Weston’s approach could be simultaneously compliant and non-compliant with the NES depending upon the time in the roster cycle at which annual leave is taken. The company also notes that the NES expressly contemplates the averaging of ordinary hours. It says that the basis of the union’s proposal that 7.6 hours should be deducted for each day’s absence does not accord with the way ordinary hours are regarded in the NES. Further, there is nothing inconsistent in the company expressing the five weeks in hours as the accrual of those hours in the NES is based on ordinary hours.

[46] As indicated in paragraph 6 above, the company disputes FWC’s jurisdiction to deal with the second issue between the parties. It submits that this issue actually concerns the interpretation of contracts of employment. It notes that the relevant contracts do not contain any provision which would bring them within section 738(c) of the Act and further notes that the issue would not fall within the dispute settlement procedure in the Agreement as it relates to entitlements. The company submits that the decision in Woolworths t/as Produce and Recycling Distribution Centre [2010] FWAFB 1464 @ [21] is relevant and notes that there is no agreement for this second issue to be arbitrated and consequently no jurisdiction.

CONSIDERATION AND CONCLUSION

[47] The initial question to be decided is what is the rate at which annual leave is to be deducted from the accrued balances of the relevant employees. In order to determine the matter it is necessary to consider the Agreement and then, because of the terms of the Agreement, various provisions in Part 2-2 of the Act. It should be noted however that neither instrument deals directly with the issue of deduction.

[48] There is no question as to FWC’s jurisdiction to decide this question.

[49] As indicated earlier, clause 5.1 of the Agreement states that the NES applies to employees covered by the Agreement except where the Agreement provides a more favourable outcome. The preamble in Part 7 of the Agreement sets out the standard summary of NES entitlements including “(f)our weeks annual leave per annum with an additional week for certain continuous shiftworkers”.

[50] Clause 33.1 states that annual leave is provided for in the NES and clause 33.2 sets out the definition of shiftworkers for the purpose of the additional weeks leave. There is no dispute that the relevant employees come within this definition.

[51] Clause 33.3 provides that, where an employee takes a period of annual leave, they will be paid for that leave the amount that they would have been paid if they had worked that day. The parties disagree as to the intention behind this provision and its impact, if any, on the rate at which the leave is to be deducted. It is unfortunate that there was no evidence in relation to this issue as it could have been of assistance. I recognise that any such evidence may have demonstrated only that there was no mutual intention as to any impact on the rate of deduction. There is of course no doubt about its effect upon the company’s obligation to pay an employee for each day they are absent on annual leave the amount they would have been paid if they had worked that day.

[52] Clause 29 deals with hours of work and provides that these are to average 38 hours per week. I now turn to the NES.

[53] Subsection 87(1) of the Act provides that, for each year of service, each of the relevant employees is entitled to five weeks of paid annual leave. Subsection 87(2) provides that the entitlement accrues progressively throughout the year according to an employee’s ordinary hours of work and accumulates from year to year. As stated earlier, the relevant employees’ ordinary hours of work average 38 hours per week.

[54] Subsection 90(1) provides that, if an employee takes a period of paid annual leave, they must be paid at their base rate of pay for their ordinary hours of work during that period. Section 16 sets out the meaning of “base rate of pay”. In this case however, clause 33.3 of the Agreement in effect supplants the legislative provisions on this point by providing that employees will be paid as if they had worked for the period on which they were on leave.

[55] As noted earlier, part of the debate between the parties concerned the meaning of a “week” in the context of the entitlement to annual leave in the NES. In some instances the meaning would be uncontroversial, for example in relation to an employee who works a standard 38 hour week, Monday to Friday. However, in the context of non-standard working arrangements such as those in the present case, the meaning is uncertain and indeed ambiguous.

[56] In the circumstances I consider that it is necessary to have regard to the wider context and background to the present provisions in order to determine whether the change from the reference to “hours” in the Australian Fair Pay and Conditions Standard (AFPCS) in the WRA to “weeks” in the NES represents an increased entitlement.

[57] Unfortunately the main part of the Explanatory Memorandum is not a great deal of assistance in this regard. Nevertheless, the Regulatory Analysis does provide some guidance. Paragraph r 11 acknowledges that, in some instances, the NES provides employees with additional entitlements and imposes additional financial burdens on employers. However, paragraphs r 26 and r 57 both make it clear that the quantum of the annual leave entitlement was to be unchanged in the new legislation.

[58] Consequently, although I agree with the union that the change in language between the AFPCS and the NES was a conscious choice by the legislature, I do not agree that it represents an intention to provide employees with any greater, or lesser, entitlement to annual leave than before. Importantly, in the context of this matter, neither did the change represent an intention to impose a greater financial burden on employers.

[59] The NES sets out minimum entitlements and employers and their employees are free to agree to terms and conditions which are superior. However, in the absence of such agreement, I can see no good or fair reason why an employee who is being paid for 10.857 hours for each day of annual leave should have only 7.6 hours deducted from their accrued leave balance. It follows that I determine that the answer to the primary question is that the rate at which annual leave is to be deducted from the accrued balances of the relevant employees should be 10.857 hours for each day of leave or pro rata for each part of a day.

[60] The second question arising between the parties concerns the way in which amounts of annual leave which had been accrued prior to the Agreement coming into operation should be recorded and treated. This question raises issues of jurisdiction. Section 739 permits FWC to deal with disputes if a term referred to in section 738 requires or allows FWC to do so.

[61] Section 738 includes references to a term in a contract of employment or other written agreement which “provides a procedure for dealing with disputes between the employer and employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement”.

[62] The company submits that it is not aware of any term in any of the contracts of employment which would fall into this category. This submission was not challenged by the unions. Consequently, it would appear that the contracts would not give rise to jurisdiction to decide the question.

[63] The issue therefore turns on whether the question comes within the scope of the procedure for dealing with disputes under the Agreement (section 738(b)). That procedure is set out in clause 13 of the Agreement and, for present purposes, relevantly provides:

“13.1 If a dispute relates to:

(a) a matter arising under this Agreement; or

(b) the National Employment Standards (except for disputes related to reasonable grounds for refusal for flexible working arrangements or additional unpaid parental leave);

this term sets out procedures to settle the dispute.”

[64] It is agreed that this second question only arose after the Agreement came into operation. However, regardless of this temporal connection, the issue relates to treatment of leave which had accrued under the individual contracts and consequently cannot come within the dispute settlement procedure in the Agreement. In the absence of agreement there is no jurisdiction to determine this part of the dispute.

COMMISSIONER

Appearances:

L Saunders for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

M. Mead The Australian Industry Group for George Weston Foods limited trading as Tip Top Bakeries

Conciliation conference

Sydney.

2012

September 17.

Hearing details:

Sydney.

2013

February 11.

Printed by authority of the Commonwealth Government Printer

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