“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd - [2022] FWC 2110

[2022] FWC 2110

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

McCain Foods (Aust) Pty Ltd

(C2022/1104)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 AUGUST 2022

Alleged dispute about a matter arising under an enterprise agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute relating to a crewing level within the potato products plant operated by McCain Foods (Aust) Pty Ltd (McCain) in Ballarat. The AMWU made the application raising its dispute with McCain pursuant to clause 9 of the McCain Foods (Aust) Pty Ltd Ballarat Production Enterprise Agreement 2019 (2019 Agreement).[1]

The dispute and its early case management was initially before Deputy President Mansini, as she then was. Following reallocation of the dispute to me, an interlocutory application was made by McCain to have the witness statements of thirteen of the fourteen proposed AMWU witnesses struck out on the basis that they were inadmissible and largely irrelevant. I determined not to grant this application, forming the view that once the evidence of the AMWU had been led, it was open to McCain to address me on the question of relevance. Ultimately the AMWU called only three witnesses when I conducted a hearing on each of 30 May 2022, 16 June 2022 and 17 June 2022.

The crewing level that was the subject of the dispute was that for the potato packing area within McCain’s potato products plant. This brought into focus Clause 16 in Appendix 1 of the 2019 Agreement, which provides:

“16. Crewing levels

16.1 Prior to the commencement of this Agreement, crewing levels have been established to reflect workloads, rosters and business needs. Crewing levels for the Potato Products Plant are as follows

· Potato Processing   7 roles
· Raw/Frozen Inspection                   5 roles
· Quality Control   3 roles
· Potato Packing   11 roles
· Production Put Away   3 roles

(my emphasis)

16.2     Planned crewing levels may be subject to change due to changes in investment in capability and technology from those in place at the date of commencement of this Agreement. Any such change will be subject to consultation under clause 10 of the Agreement.
16.3     In cases of planned and unplanned absences, all reasonable efforts will be made to cover positions with employees that are available and skilled.
16.4     For the purpose of this clause no single employee shall be expected to fill the positions of two or more employees during a shift. If replacement coverage for an absence is not found within two hours of an absence being notified, a Job Safety Analysis (JSA) will be completed, no later than two and a half hours after the absence has been notified to determine how to manage the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2022] FWC 2110
Case: [2022] FWC 2110
Decision Date: 9 AUGUST 2022

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) filed an application against McCain Foods (Aust) Pty Ltd under section 739 of the Fair Work Act 2009, seeking arbitration over a crewing level dispute in the potato packing area of McCain's Ballarat plant. This case was brought under clause 9 of the McCain Foods (Aust) Pty Ltd Ballarat Production Enterprise Agreement 2019. The central legal issue was whether McCain was required to allocate 11 crew members per shift to the potato packing area, as stated in clause 16.1 of the agreement. The AMWU argued that the crewing levels were established under the 2019 Agreement and had not been altered since, while McCain contended that the crewing levels had been changed prior to the 2019 Agreement and were no longer applicable.

The Fair Work Commission examined the plain meaning of the agreement, taking into account its context and purpose. The Commission found that clause 16.1 had a plain meaning and that the crewing levels were indeed established prior to the 2019 Agreement. The term "this Agreement" in clause 16.1 referred to the 2019 Agreement, not the 2016 Agreement. Moreover, the Commission observed that while there might have been changes in crewing levels during the 2016 Agreement, these changes were not reflected in the 2019 Agreement. The Commission also noted that the explanation document provided to employees before the vote to approve the 2019 Agreement did not mention the crewing levels, further supporting the conclusion that the 2019 Agreement maintained the crewing levels as established.

The Commission concluded that McCain was required to allocate 11 crew members per shift to the potato packing area, as outlined in clause 16.1 of the 2019 Agreement. The Commission emphasized that its role was to interpret the agreement as it stood and not to rewrite it for a perceived fair and just outcome.

Orders