“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Kraft Foods Australia Pty Ltd

[2013] FWC 791

[2013] FWC 791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Kraft Foods Australia Pty Ltd
(C2012/937)

COMMISSIONER GREGORY MELBOURNE, 7 FEBRUARY 2013

Alleged dispute concerning employees being required to remove their wedding rings.

Introduction

[1] This matter concerns an application brought by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act). The employer is Kraft Foods Australia Pty Ltd (the Respondent) and the dispute arises in the context of the Cadbury Ringwood and Scoresby Confectioners Agreement 2010 - 2012 (the Agreement). The Respondent company has made a decision to require employees to remove their wedding rings, or weddings bands, in accordance with Part 3 of the Company’s Global Sanitation Manual dealing with Good Manufacturing Practices. Five employees at the Respondent’s Ringwood plant object to being asked to comply with this requirement.

[2] The matter was the subject of a conciliation conference on 27 September 2012 but was unable to be resolved.

The Issue to be Determined.

[3] The Applicant submits the Respondents requirement to remove wedding bands is an extra claim and in breach of the existing Agreement. The Respondent submits the requirement does not constitute an extra claim and further the Tribunal has no jurisdiction to deal with the matter because it does not involve a dispute about a matter under the Agreement or the National Employment Standards.

[4] The issue for determination is accordingly whether this is a matter that involves a breach of the Agreement that enables the Tribunal to have jurisdiction to deal with the matter pursuant to s.739 of the Act and the consultation and dispute resolution clauses in Clause 7 of the Agreement.

The Submissions and Evidence

[5] The circumstances in which the alleged dispute arises are relatively straightforward. Mr Ross Cameron, the Site Manager at the Ringwood plant, gave evidence on behalf of the Respondent. In mid 2012 the Company introduced a requirement based on the Respondent’s global quality procedures for employees to remove weddings bands. The purported rationale was:

“..to minimise the risk of contamination of any sort to the products that we manufacture.” 1

[6] He indicated the Respondent moved to implement this requirement at its Ringwood site from 1 July 2012. He submitted this was proposed as an optimum hygiene solution on the basis of Kraft’s belief that:

“..clean hands are better than gloves.” 2

[7] Five employees have refused to comply with this requirement essentially because of the personal significance of wearing their wedding rings and not removing them at any time.

[8] In cross examination Mr Cameron stated an “exceptions policy” would be applied in individual cases where compelling documented evidence was provided by an employee about the significance of the removal of their wedding rings. He also stated he believed it to be a reasonable policy requirement:

“..that protects our products and our brands and our consumers.” 3

[9] The Respondent continues to submit the Tribunal lacks jurisdiction to deal with the dispute, firstly, because it is not a matter arising under the Agreement and, secondly, because it does not amount to a claim being pursued in relation to a matter dealt with by the Agreement.

[10] The Respondent submits this is a policy change introduced in the interests of food hygiene and does not alter existing employment obligations or entitlements. It refers to the Federal Court decision in Construction, Forestry, Mining and Energy Union v. Wagstaff Piling Pty Ltd 4 (Wagstaff) in support of the submission that an Enterprise Agreement does not deal comprehensively with all matters touching on the employment relationship. It also makes reference to decisions of the Tribunal which have emphasised the scope of management prerogative and the ability of an employer to manage its own business. The Respondent accordingly submits the application should be dismissed for lack of jurisdiction.

[11] The Applicant submits the requirement by the employer is an extra claim and accordingly covered by the No Extra Claims provision in the Agreement. It submits the requirement fails the test of reasonableness and is therefore extraordinary and acts to change the employee’s conditions of employment. This is particularly so when the Respondent still requires gloves to be worn in certain parts of the production process for the purpose of maintaining product appearance. It acknowledges the requirement to remove wedding bands is not a claim in relation to a matter dealt with in the Agreement, but that jurisdiction exists for the Tribunal to deal with the matter because it constitutes a no extra claim in breach of the No Extra Claims clause in Clause 6 of the Agreement.

[12] The Applicant submits the requirement is in excess of a reasonable employer instruction because the Australia and New Zealand Food Standards do not require food handlers to remove wedding rings. It also provided brief statements from six employees about the significance of being asked to remove their wedding rings. One of those employees indicated she had not removed her wedding ring since being married 43 years ago and would be:

“ ...bereft if I was forced to take it off.” 5

[13] Another statement referred to wearing her wedding ring as:

“...my security.” 6

[14] Another said:

“Furthermore, I feel that removing my wedding ring would cause severe emotional distress. I have not removed my wedding ring for thirty years and I consider it to be a symbol of fidelity and respect for my partner. My wedding ring upholds the Christian beliefs that I hold sacred and to remove my ring would be a betrayal of my values.” 7

[15] Another referred to:

“...be asked now to remove it I feel is a violation of tradition and my private life.” 8

[16] The Respondent also acknowledges the Full Court decision in Wagner but sought to distinguish it on the basis of the extraordinary nature of the requirement being imposed on employees in the present matter, particularly because the Kraft policy in regard to exposed product extends beyond the Australia and New Zealand Food Standards. It submits a requirement to remove wedding bands is just one of a variety of options that could be implemented to have in place appropriate hygiene standards and it was unreasonable for the Respondent to now insist on this requirement.

Consideration

[17] I have no doubt for some employees the requirement imposed by the Respondent to remove their wedding bands, whilst at work, is a significant personal issue. Whilst no sworn evidence was provided reference has been made already in this decision to some of the views and sentiments expressed by those employees about the significance of what was now being asked of them.

[18] However, at the same time the evidence and submissions from the Applicant indicates the requirement to remove wedding bands whilst at work has been accepted at the Respondent’s Scoresby and Port Melbourne production facilities, and by the overwhelming majority of employees at the Respondent’s larger Ringwood production facility. The Respondent has also assisted with implementation of this change by offering to have rings enlarged, where necessary.

[19] It has also proposed an “exceptions policy” in cases where employees can demonstrate why the requirement should not be imposed upon them.

[20] The Applicant submits the Tribunal does have jurisdiction to deal with the matter because it involves a dispute arising about a matter in the Agreement, in this case a breach of the No Extra Claims provision. Both parties have made reference to the decision of a Full Court of the Federal Court in Wagstaff. That matter concerned whether the employer was entitled to require its employees to submit to mandatory drug and alcohol testing as part of its occupational health and safety policy. It was originally dealt with by a single member of the Tribunal, who found that the employer did not have this power because it was not provided for in the Enterprise Agreement made between the parties.

[21] The matter was taken on appeal to a Full Bench, which upheld the appeal. The Full Bench stated at paragraph 31:

“The Commissioner concluded that clause 48 and Appendix I were silent on this issue. We think that conclusion was correct. However, we do not agree that such a finding then permits a conclusion that, absent an entitlement in the agreement to conduct compulsory drug and alcohol testing, such testing is not permissible. In effect, the Commissioner's conclusions were directed at a consideration of whether the agreement specifically enabled Wagstaff to conduct mandatory drug and alcohol testing, but that was not the issue before him.” 9

[22] It continued to indicate at paragraph 34:

“We do not consider clause 48 operates to limit drug and alcohol testing, or for that matter, other safety initiatives. Appendix I and the Policy clearly endorse a cooperative and collective approach to the management of drug and alcohol issues but cannot be read as prohibiting mandatory drug and alcohol testing. Indeed testing of this nature was not as common an issue at the time of the inception of the Policy in 1993 as it is now. Other provisions of the Wagstaff agreement recognise the need for continuous change and improvement and the obligations on Wagstaff to advance workplace safety. The risks to employee safety posed by drug and alcohol use have long been recognised by this Tribunal and compulsory drug and alcohol testing is, of itself, not so extraordinary that it could not be argued to be a reasonable employer instruction or that it could be regarded as an extra claim for the purposes of clause 50 of the Wagstaff agreement.” 10

[23] The CFMEU proceeded to the Federal Court seeking to have the decision quashed and the matter reheard accordingly to law. They submitted the correct view is the agreement implicitly precludes compulsory testing.

[24] The Full Court stated at para 45:

“In any event, we are not satisfied that the Full Bench misconstrued the agreement. The agreement did not expressly prevent mandatory random drug and alcohol testing. Nor did it do so implicitly. It provided no mechanism for objectively ascertaining whether a worker was affected by drugs or alcohol. While the Policy may have emphasised the benefits of self-motivation and cooperation, it did not exclude coercive measures where necessary or desirable in the interests of safety. The Commissioner’s approach treated the content of Appendix I as both legally determinative (which it is clearly not) and an exclusive or exhaustive statement of the powers and discretions available to Wagstaff to manage drug and alcohol issues in the workplace (which it also is clearly not).” 11

[25] In response to an argument that placed reliance on the No Extra Claims clause in the Agreement to argue mandatory testing is excluded “by necessary implication” the Court held, para 50:

“The problem with the CFMEU argument is that, despite cl 50, the agreement should not be construed as dealing comprehensively with all matters relating to the employment relationship (Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 287-288). Statutory instruments (such as awards and the agreement) operate concurrently with contracts of employment, but they do not entirely supplant them (Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 418-421, 456). Most importantly, it was not the intention of the agreement to inhibit either party taking steps to improve safety at the workplace. Cl 50 is to be read subject to cl 16.” 12

[26] The application was accordingly dismissed.

[27] I am satisfied the decision is relevant to the determination of this matter. The Respondent has taken a significant step in this initiative directed at the objective of enhanced food safety and safe food handling. Those issues are not dealt with in the enterprise agreement but are obviously critical issues in the context of the Respondent’s business. It submits the changes are warranted to that end and are consistent with its global practice. The Applicant submits it is an excessive requirement. It goes beyond what Australian standards require and is a significant personal issue for some employees. It submits that it is such a significant change that it does constitute an extra claim in breach of the No Extra Claims clause in the Agreement. Accordingly, the Tribunal has jurisdiction to deal with the matter.

[28] I am not satisfied this is the case. It is a change consistent with what the Company has apparently done elsewhere. It appears to have been accepted by the overwhelming majority of employees at its various locations at Port Melbourne, Scoresby and Ringwood. The Company has assisted by enlarging rings, where necessary. It also proposes an exceptions policy in appropriate cases.

[29] Having regard to the decision of the Federal Court in Wagstaff I am not satisfied this change in policy in regard to the wearing of wedding rings is an issue covered by the existing enterprise agreement. For the reasons indicated I am not of the view either that it constitutes an extra claim and is therefore in breach of the No Extra Claims clause in the Agreement. For those reasons I am not satisfied the Tribunal has jurisdiction to deal with the matter. The application is accordingly dismissed.

[30] I have also made reference to the brief statements provided by the five employees about the significance of wearing their wedding rings and what it means to them to be asked to remove them. Whilst they were not provided as sworn evidence if those views are verified in discussions with individual employees I suggest they provide examples of when it could be expected an exceptions policy would apply.

COMMISSIONER

Appearances:

M Churcher and T Hale on behalf of the Australian Manufacturing Workers’ Union.

A Shepherd of The Australian Industry Group on behalf of Kraft Foods Australia Pty Ltd.

Hearing details:

2012.

Melbourne:

22 October.

 1   Transcript PN78

 2   Transcript PN82

 3   Transcript PN136

 4 [2012] FCAFC 87

 5   Exhibit H2, page 4

 6   Ibid, page 1

 7   Ibid, page 2

 8   Ibid, page 5

 9  [2011] FWAFB 6892 at 31

 10   Ibid at 34

 11 [2012] FCAFC 87 at 45

 12   Ibid at 50

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