"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging - [2023] FWC 3168

[2023] FWC 3168

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)

Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging

(C2023/2311)

DEPUTY PRESIDENT CROSS

SYDNEY, 22 MARCH 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES regarding the interpretation of the Historical Site Differences clause – site specific practices and conditions –

This dispute concerns a dispute notification by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (the AMWU), regarding the interpretation of the “Historical Site Differences” (HSD) clause in the Opal Fibre Packaging National Enterprise Agreement 2022 (the 2022 Agreement). Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging is the Respondent to the dispute (the Respondent/Opal).

Background

During 2022, the parties were negotiating a replacement agreement to the Opal Fibre Packaging National Enterprise Agreement 2019 (the 2019 Agreement). The 2019 Agreement, and predecessor agreements dating back to the early 1990’s, had included a clause which recognised that Opal and all its predecessor companies had acquired companies with various practices that were specific to those companies and/or sites, and that those practices should continue despite there being a national agreement in place. These differences were acknowledged through an “Historical Site Differences” (HSD) clause. In the 2019 Agreement the relevant HSD clause provided:

5. Historical site differences
(a) The parties acknowledge that Orora Fibre Packaging has acquired a number of companies in recent years and as such it is recognised that each site may have practices and conditions not in place at any other site/s.
(b) The parties agree that interstate site differentials will be maintained for the period of the Agreement and recognise that Wage Parity across Orora Fibre packaging sites is an issue between the parties. The parties agree to consult with each other at a national level to review their respective positions on Wage Parity prior to the next EBA. Initial consultation will commence 3 months after approval of the agreement by FWC, except that where within a state a site is identified as having a significant wages anomaly, then the parties shall meet within one month of the Agreement being accepted by the members to ensure an outcome which will rectify the anomaly.
(c) The process of removing significant anomalies will recognise proposed adjustments to be implemented by the introduction of skill based pay and the need for the Company to attract

While negotiations for the 2022 Agreement were occurring, the parties were engaged in a dispute before the Commission in matter C2022/5814. This dispute involved the application of the HSD clause in the 2019 Agreement in relation to the operation of a Rostered Day Off system for maintenance employees at the Revesby New South Wales Site.

The HSD clause for the 2022 Agreement provided:

5. Historical site differences

(a) It is acknowledged that the following words appeared in clause 5 of the Orora Fibre Packaging National Enterprise Agreement 2019 and that these are the subject of a dispute before the Full Bench of the Commission (C2022/5184) between Opal and the AMWU at the time of the making of this Agreement:

(a) The parties acknowledge that Orora Fibre Packaging has acquired a number of companies in recent years and as such it is recognised that each site may have practices and conditions not in place at any other site/s.

(b) The parties agree that interstate site differentials will be maintained for the period of the Agreement and recognise that Wage Parity across Orora Fibre packaging sites is an issue between the parties.

(b) The parties agree to abide by the findings of the Full Bench in C2022/5184 in relation to the application of clause 5 in relation to Revesby maintenance rostering and RDO arrangements the subject of the dispute.

(c) Otherwise, the parties have agreed that from commencement of the 2022 Agreement through to the nominal expiry date of the 2022 Agreement, Opal will maintain site-specific practices and conditions that were in existence for the life of the Orora Fibre Packaging National Enterprise Agreement 2019 as validated in payroll records. The parties commit to identifying and documenting such site-specific practices and conditions during the first 3 months after commencement of the 2022 Agreement.

(d) For the avoidance of doubt, the site-specific practices and conditions that Opal is required to maintain as provided in sub-clause (c) are the site-specific practices and conditions documented within the 3 month period in accordance with sub-clause (c).

[Emphasis added]

While the 2022 HSD clause bound the parties to the Commission’s decision in C2022/5814, it also provided for certain site-specific practices and conditions that were in existence under the 2019 Agreement to be maintained, following a process of identification and documentation undertaken by the parties within the first 3 months after the commencement of the 2022 Agreement.

The 2022 Agreement included a Dispute Resolution Procedure, that relevantly provided:

16. Dispute resolution procedures
16.1 Scope
The dispute resolution clause will be used if there is a dispute in relation to all matters which pertain to the relationship between the parties and the Union/s covered by this Agreement. For the sake of clarity this may include any dispute arising in relation to the following:
(a) a dispute in relation to a matter under this Agreement;
(b) a dispute in relation to any workplace industrial policy, practice or procedure;
(c) a dispute in relation to any amendment or termination, or proposed amendment or termination of this Agreement or workplace policy or procedure, or any bargaining or negotiating for, or making of, a new agreement or workplace policy or procedure;
(d) the Awards referred to at sub-clause 3(b) and any other incorporated instrument;
(e) the NES.

…
16.3 Work to continue as normal
(a) It is a term of this agreement that while the dispute resolution procedure is being followed work shall continue normally and the status quo remain unless an employee has a reasonable concern about an imminent risk to hisor her health or safety or the company has a concern about an imminent risk to the health or safety of any employee.
(b) While the dispute resolution procedure is being followed, work in the area affected will remain as it was at the initiation of the dispute.
(c) For the avoidance of doubt, no employee’s duties, shift, occupation or income will be changed during this process.

16.4 Timing
The parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible. Additionally, the parties agree that should the matter be notified in FWC, the parties will jointly seek to expedite the matter, by requesting FWC to give it priority.

The Questions for Determination

The parties agreed on the questions necessary to be determined by the Commission. Two questions relating to the overall interpretation of Clause 5 of the 2022 Agreement are posed at questions 1 and 2 below.

While the parties had requested the Commission to determine each and every claim regarding alleged HSD’s, it was agreed that 6 exemplary HSD claims would be determined in these proceedings, with the aim that the disposition of those six would inform the parties of the appropriate interpretation of the HSD clause and allow for the parties to resolve the balance of the HSD claims. Each of those six claims are outlined as a paragraph to question 3 below. The questions are:

1. Is Opal required to maintain any site specific practices and conditions under clause 5(c) of the Opal Fibre Packaging National Enterprise Agreement 2022 (“the Enterprise Agreement”), having regard to the identification and documentation requirements and the three month period contained in Clauses 5(c) and 5(d)?

2. If the answer to question (1) is “No”, does Clause 16.3 extend the three month period contained in Clauses 5(c) and 5(d) until the dispute is resolved?
3. If the answer to either question (1) or question (2) is yes, are any of the following site-specific practices and conditions for the purposes of Clause 5(c) of the Enterprise Agreement as referred to in question (1):
a. The practice of working a 5 hour shift on the Thursday before a Public Holiday that falls on a Friday, even though such a practice occurs at more than one Opal site covered by the Enterprise Agreement?
b. The paid break to attend the Christmas Party at the Scoresby site, even though it was not held every year during the life of the 2019 Agreement because of COVID restrictions, nor is it separately validated in payroll records?
c. The practice of pre-approved overtime of 15 minutes at the start of shift for Production Leading Hands on Converting and Corrugator at the Scoresby site, even though it was only used at the election of the employee over the life of the 2019 Agreement, and even though it temporarily ceased during COVID restrictions due to shift bubbles, and even though the practice commenced after 1994?
d. The payment of overtime at double time rates after the conclusion of the Friday shift at the Scoresby Pre-Print site, even though the practice commenced after 1994?
e. Where Bailer preventative maintenance and cleaning at the Revesby site is conducted at a minimum every 3 months. This clean-up is conducted by the bailer crew made up of 2 workers on a weekend schedule when there is no production, even if this is not separately validated in payroll records and even though this has not necessarily been a consistent practice since 1994?
f. The practice of paying shift loading on overtime worked by maintenance employees at the Scoresby site, even though the practice occurs at more than one site and is possibly an error in payroll?

Statement of Agreed Facts

The parties entered into a Statement of Agreed Facts for the purposes of this dispute. That Statement is as follows:

STATEMENT OF AGREED FACTS
The Applicant
1. The Applicant, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union, is an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 and an industrial association of employees for the purposes of the Fair Work Act 2009 (Cth) (“the Act”).
2.            In accordance with its Rules, the Applicant is entitled to represent the industrial interests of relevant employees of the Respondent. Further, it is entitled to be a bargaining representative for enterprise agreements negotiated under the Act.
The Respondent and the transfer of business
3.            The Respondent, Opal Packaging Australia Pty Ltd, is a national system employer.
4.            On 1 May 2020, an asset sale arrangement completed between the Respondent and and unrelated entity, the Orora Group (“Sale”). The Sale included the Orora Group’s national fibre packaging business operating at 10 sites - Knoxfield (Vic), Scoresby (Vic),  Scoresby Pre-print (Vic), Brooklyn (Vic), Revesby (NSW), Rocklea (Qld),  Bohle/Townsville (Qld), Athol Park (SA), Bibra Lake/Spearwood (WA), and Launceston (Tas).

5.            As part of the Sale arrangements, the Respondent offered employment to each of the Orora Group employees covered by the Orora Fibre Packaging National Enterprise Agreement 2019 (“2019 Agreement”). Employees who accepted the offer commenced employment with the Respondent on 1 May 2020.
6.            This constituted a transfer of business in accordance with section 311 of the Act. As a consequence of the transfer of business, the 2019 Agreement became a transferable instrument as defined by section 312 of the Act. Further, any new starters employed at the sites and within the classifications set out in the 2019 Agreement were also covered by the 2019 Agreement, pursuant to the order of Commissioner Cirkovic dated 27 April 2020 (AG2020/1006).
“Historical Site Differences” clauses in Enterprise Agreements

7.            Prior to the Sale there has been a history of enterprise agreements that have applied to employees of sites falling at the various times within the national fibre packaging  business operated by previous owners of the business. The Applicant (or predecessor unions who were part of the amalgamation to form the Applicant) negotiated the terms of these agreements. In accordance with the legislative framework at relevant times, the Applicant was either a party to the agreement or was covered by the enterprise agreement.
8.            The relevant agreements from 1992 are:
a.            Amcor Fibre Packaging Enterprise Agreement 1992 (“1992 Agreement”)
b.            Amcor Fibre Packaging Enterprise Agreement 1994
c.             Amcor Fibre Packaging National Enterprise Agreement 1998
d.            Amcor Fibre Packaging National Enterprise Agreement 2001
e.             Amcor Fibre Packaging National Enterprise Agreement 2004
f.             Amcor Fibre Packaging National Enterprise Agreement 2007
g.            Amcor Fibre Packaging National Enterprise Agreement 2010
h.            Amcor Fibre Packaging National Enterprise Agreement 2013
i.             Orora Fibre Packaging National Enterprise Agreement 2016
j.             2019 Agreement
9.            Each of these enterprise agreements contained a clause titled “historical site differences”.
Dispute relating to clause 5 of the 2019 Agreement

10.          On 18 February 2022, a dispute between Opal and the AMWU (“the Revesby dispute”) was notified to the Fair Work Commission to which clause 5 of the 2019 Agreement was relevant. This clause dealt with “Historical Site Differences”.
11.          The Revesby dispute was arbitrated and a decision handed down by Commissioner McKinnon on 20 July 2022 ([2022] FWC 1840).
12.          The AMWU appealed the decision and a decision in relation to the appeal was handed down by the Full Bench on 9 December 2022 ([2022] FWCFB 231).
Bargaining for the 2022 Agreement

13.          On or around 1 June 2022, bargaining commenced for an enterprise agreement to replace the applicable transferable instrument, the 2019 Agreement.
14.          Seven bargaining meetings were held between 15 July 2022 and 14 September 2022. These meetings were conducted via Microsoft Teams, with 4 representatives from Opal and up to 30 representatives from the AMWU, including delegates from each of the 10 sites, and state and national officials.
15.          After reaching an impasse in bargaining negotiations, Opal put a proposed enterprise agreement to a vote of employees on 6-12 October 2022. The majority of employees who voted opposed the proposed enterprise agreement.
16.          Following an application by the AMWU (B2022/1540), on 12 October 2022 Deputy President Clancy made an order under section 437 of the Act (PR746729), ordering that a protected action ballot be conducted (PABO).
17.          The results of the PABO were declared on 24 October 2022, with employees voting to authorise each type of industrial action specified in the ballot.
18.          On 26 and 27 October 2022, the AMWU notified Opal that its members intended to take employee claim action commencing on 2 November 2022.

19.          Subsequently, a further bargaining meeting was held on 27 October 2022. Following this meeting, on 28 October 2022, the AMWU agreed to withdraw the notices referred to in paragraph 18 above.
20.          A bargaining meeting was then held on 3 November 2022. On the same day, the AMWU again notified Opal that its members intended to take various forms of employee claim action, to commence on Wednesday, 9 November 2022 and Thursday, 10 November 2022.
21. A further bargaining meeting was held on 7 November 2022. Following that meeting, Opal made an application to the Commission under section 240 of the FW Act (B2022/1680) seeking the Commission’s assistance in resolving a bargaining dispute. A conference was conducted by Deputy President Gostencnik on 11 November 2022, but no agreement could be reached.
22.          On 10 and 11 November 2022, employees engaged in the stoppage of work referred in paragraph 20.
23.          On 10 November 2022, the AMWU issued further notice of protected industrial action to Opal for action including 48 hour stoppages commencing from Wednesday 16 November 2022, and that action subsequently proceeded.
24.          On 16 November 2022, the AMWU issued further notice of protected industrial action to Opal for 72 hour stoppages commencing from late on 22 November 2022.
25.          On Monday 21 November, an in-person meeting was conducted with a smaller group than the bargaining meetings that had been held to date, with 2 representatives from Opal (Brad Hinds and Rod Beales) and 2 representatives from the AMWU (Lorraine Cassin and Margaret Hogan) in attendance. This included discussion on a new clause regarding “historical site differences”, noting that the Fair Work Commission had not yet handed down its decision on the AMWU’s appeal against the Revesby dispute decision.
26.          Following that meeting, Opal and the AMWU engaged in correspondence and on 22 November 2022 in-principle agreement was reached and the protected action planned to take place from 22 November 2022 formally withdrawn.
27.          Following in-principle agreement being reached, the parties engaged in discussions and correspondence from Wednesday 23 November 2023 to Friday 25 November 2023 to finalise the wording of the proposed new enterprise agreement.
28.          From 29 November 2022, the vote materials were distributed, and the vote was held from 13-19 December 2022. The Opal Fibre Packaging National Enterprise Agreement 2022 was voted up by a valid majority of employees, and subsequently approved by the Commission (AG2022/5539) on 23 January 2023, to take effect on 30 January 2023 (the 2022 Agreement).
Clause 5 of the 2022 Agreement and the current proceedings
29.          After the 2022 Agreement took effect on 30 January 2023 the process of identifying “historical site differences” commenced. This included discussions between representatives of Opal and employees at some of the sites, as well as representatives of the Applicant providing various lists of claimed practices and conditions to representatives of the Respondent.
30.          The Respondent did not agree with any of items identified and submitted by the Applicant and/or its employees to representatives of the Respondent before 30 April 2023.
31.          On Friday 28 April 2023 at 10.31am, the AMWU lodged a Form F10 with the Commission to commence the current proceedings.
32.          On Friday 28 April 2023 at 3.38pm, Opal wrote to the AMWU to set out Opal’s view that there are no site-specific practices and conditions covered by clause 5 that Opal is required to maintain under clause 5. This is a position that Opal continues to maintain.
33.          Since the commencement of the current proceedings, the parties have engaged in discussions regarding the items claimed by the AMWU as “historical site differences” (“HSDs”) and currently 123 items are pursued as HSDs by the AMWU.
34.          In programming steps towards resolution of the dispute, the parties agreed in conference on 25 July 2023 that the present “part 1” arbitration for which this Statement of Agreed Facts is prepared will deal with the 6 claimed HSDs as set out below.
Agreed facts relevant to claimed HSDs for “part 1” arbitration

Item 1 – Friday public holiday
35. At 5 of the 10 sites covered by the 2022 Agreement (being Brooklyn, Scoresby Pre-print, Revesby, Scoresby and Spearwood), a practice was in place over the life of the 2019 Agreement whereby the Thursday and Friday rostered hours were “swapped” in any week where a public holiday fell on a Friday.

36.          Full-time employees at these sites work a 35 hour week, with the usual rostered hours being 7.5 hours on Monday to Thursday, with a 5 hour shift on Fridays.
37.          In any week where a public holiday falls on a Friday, the roster for that week for full-time employees is changed so that 5 ordinary hours are rostered for the Thursday and 7.5 ordinary hours are rostered for the Friday. The normal rules are then applied to the “swapped” roster days in terms of for example overtime, public holiday worked and public holiday not worked.
38.          This roster change practice has been validated in payroll records for all 5 sites.
Item 2 – Paid break to attend a Christmas Party at the Scoresby site
39.          On 24 December 2021 and 23 December 2022, a Christmas party was held at the Scoresby site. All employees were invited, across all shifts, and were paid for 2.5 hours if they attended. It is not possible to validate in payroll records what employees were doing during the relevant 2.5 hours, as they are recorded in payroll as ordinary time.
40.          A Christmas party did not occur in 2020, due to practices implemented at the site as a safety measure to minimise contact between different shifts during the Covid-19 pandemic.
41.          This practice does not occur at any other of the other 9 sites covered by the 2019 Agreement and 2022 Agreement.
42.          As far as the parties are aware, the practice of holding a Christmas party as occurred in 2021 and 2022 had, prior to 2020, been occurring since at least 1994.
Item 3 – Pre-shift overtime for Production Leading Hands on Converting and Corrugator at the Scoresby site
43.          During the course of 2019, prior to the commencement of the 2019 Agreement, Orora  Packaging Australia Pty Ltd informed employees classified as Production “Leading Hands” working on Converting and Corrugator at the Scoresby site that should they wish to come in 15 minutes prior to their rostered shift time in order to do handover and shift preparation, the business would pay for that time as pre-shift overtime.
44.          Orora continued this arrangement through to the Sale, and Opal continued the arrangement after the Sale.
45.          However, the arrangement was paused for substantial periods during the life of the 2019 Agreement. This was due to “shift bubbles” implemented at the site as a safety measure to minimise contact between different shifts during the Covid-19 pandemic. Once “shift bubbles” were lifted, the arrangement resumed.
46.          The 15 minute pre-shift overtime is not mandatory and some Leading Hands on Converting and Corrugator come in 15 minutes early from time to time and others do not.
47.          Payroll records show instances where a Production “Leading Hand” working on Converting or Corrugator has undertaken 15 minutes pre-shift overtime. If a “Leading Hand” has chosen not to come in early on a particular day there is no record of the making of that choice in the payroll system.
48.          This arrangement does not exist at any of the other 9 sites covered by the 2019 Agreement and 2022 Agreement.
Item 4 – Post-shift overtime at double time rates on a Friday at the Scoresby Pre-Print site
49.          During the life of the 2019 Agreement, when an employee performed post-shift overtime on a Friday at the Scoresby Pre-Print site, a double time rate was applied to that overtime. This has been validated in payroll records.
50.          This arrangement does not exist at any of the other 9 sites covered by the 2019 Agreement and 2022 Agreement.
51.          The Scoresby Pre-Print site did not exist in 1994 and was established in around 1996.
Item 5 – Bailer at the Revesby site
52.          Over the life of the 2019 Agreement:
(a)Bailer preventative maintenance and cleaning at the Revesby site was conducted at a minimum every 3 months;
(b)This clean-up was conducted by the bailer crew made up of 2 workers on a weekend schedule when there is no production; and
(c)For workers to access the machine to perform such maintenance, the bailer must be stopped and isolated. As the bailer collects all waste from other machines during production, maintenance cannot occur when production is scheduled

53.          It is not possible to validate in payroll records precisely what type of work an employee was undertaking when they have worked on a weekend and been paid weekend overtime rates. The payroll records simply show that weekend overtime has been worked. However supervisors/managers record in a separate spreadsheet the purpose of that overtime, eg preventative maintenance.
54.          This arrangement does not exist at any of the other 9 sites covered by the 2019 Agreement and 2022 Agreement.
55.          This had not been a consistent arrangement at the Revesby site since 1994.
Item 6 – Payment of shift loading on overtime worked by maintenance employees at the Scoresby site

56.          Over the life of the 2019 Agreement, when a maintenance employee at the Scoresby site worked overtime, the amount payable for the overtime worked was calculated on the basis that if the employee’s ordinary hours were performed on afternoon shift or night shift, then the following shift allowances formed part of the employee’s wage for the purposes of calculating the overtime rate payable:
a) 20% shift loading for afternoon shift or temporary night shift; and
b) 30% shift loading for permanent night shift.

57. Over the life of the 2019 Agreement, this same practice was in place at 2 other sites covered by the 2019 Agreement and 2022 Agreement, namely the Scoresby Pre-Print site and the Brooklyn site. This practice has been validated in payroll records for all 3 sites.

The Evidence

In the hearing of the dispute, the following Statements were filed by the parties, and each deponent was cross-examined:

(a) The AMWU filed statements in chief from:
(i)Ms Lorraine Cassin, Assistant National Secretary of the AMWU, dated 17 October 2023; and

(ii)Ms Margaret Hogan, National Industrial Officer with the AMWU, dated 17 October 2023.

(b)The Respondent filed statements in response from:
(i)Mr Brad Hinds, Group General Manager of Fibre and Specialties, dated 14 November 2023; and

(ii)Mr Rodney Beales, General Manager – Workplace Relations, dated 14 November 2023.

(c) The AMWU filed statements in reply from:
(i)Ms Cassin, dated 24 November 2023; and

(ii)Ms Hogan, dated 24 November 2023.

(d) After the conclusion of the hearing, and consistent with directions of the Commission, a third statement from Ms Hogan dated 8 December 2023, regarding Question 3 and the site at Scoresby was filed.

(a)(i) Ms Cassin

Ms Cassin noted that she has been familiar with HSD’s at the Opal sites for many years, noting that they had been recognised in enterprise agreements for nearly thirty years.

In negotiations for the 2022 Agreement, as the AMWU is a rank and file driven union, it put forward positions in bargaining that reflected what their members wanted.

Before bargaining commenced for the 2022 Agreement there was a dispute between Opal and the AMWU at the Revesby site. That was the matter referred to the Fair Work Commission for resolution (the Revesby RDO dispute).

Ms Cassin stated that the AMWU commenced negotiations for the 2022 Agreement in about June 2022. As part of Opal’s log of claims for the Agreement, they wanted to remove the HSD provisions from the enterprise agreement, however this was strongly opposed by the AMWU.

In about October 2022, the AMWU applied to the Commission for a Protected Action Ballot Order (“PABO”). Ms Cassin’s recollection is that the major outstanding issues were wage increases, the cashing out of annual leave and the retention of the HSD clause. AMWU members endorsed taking industrial action in late October 2022.

On 31 October 2022, Opal put another offer forward to try and resolve the bargaining situation. While Opal still wanted to remove the HSD clause, they were open to including a list of practices that were agreed between the parties before the final vote on the Agreement. This was not supported by AMWU members. During November 2022 the AMWU took protected industrial action on an escalating basis, with a three day stoppage being planned to commence on 22 November 2022.

Between 31 October and 22 November 2022, various proposals for an HSD Clause passed between the parties. Some of those draft proposals relied on the forthcoming Full Bench’s decision to determine what was an HSD, as well as nominating timeframes within which to identify the HSDs varying from 18 to 3 months. The final position of Opal was 3 months within which to identify HSD’s.

Ms Cassin stated that after further phone calls and consideration, Opal provided an updated draft offer on 22 November 2022. While that clause did not tie the criteria used by the Full Bench to the determination of the HSDs, it had shortened the time for identifying the HSDs to 3 months. When Ms Cassin was discussing this with Mr Hinds, he advised her that the three months had come from “above” and it was the best he could do. Mr Hinds assured Ms Cassin “We will get it done in the three months. You win.”
Ms Cassin stated that the clause reflected the criteria that the AMWU had put forward, being that those practices that had been in place during the 2019 Agreement and were validated in payroll. It was not tied to the Full Bench decision, and it did remove the dispute process as part of the identification of HSDs. Based on the changes and Mr Hind’s assurance, Ms Cassin indicated that the AMWU agreed in principle, and the AMWU called off the planned protected action.
The proposed agreement was voted on 29 November 2022, and was agreed to by a majority of employees. Ms Cassin was aware that the timeframe for the identification of HSDs was three months from the commencement of the Agreement, even though this was not discussed between the parties. She thought that each site would start the process of documenting the various HSDs that applied so everything would be ready by the end of three months, however this was not what occurred.

In cross-examination, Ms Cassin gave clear and concise evidence regarding Clause 5 of the 2022 Agreement and what it entailed. Her evidence was:[1]

But you'd agree that since around that time – I am going to say '94 – you say around that time there has been a succession of collective agreements and then enterprise agreements that have protected those historical site differences that were in place when Amcor acquired those businesses and brought them in under Amcor by the packaging? That’s correct.
And you agree the purpose of the process that clause 5 in the current agreement – the process that sets out is aimed to preserve as many of those historical site differences that we have been talking about as possible? Correct.
Now, I think you can gave an answer to me before when I said 'no more, no less' and you agreed with that proposition.  You'd agree that the process that's contemplated in clause 5 of the '22 agreement is not to expand the universe of historical site differences any broader than it had always been? It was to codify what's currently in place.
That is what's been recognised as an HSD under previous agreements under the '19 agreement and the agreements before that? Well, certainly under the previous agreement.  Yes.
And that process in clause 5 involves a process of identification and documentation of these historical site differences, doesn't it? It does.
And that's to ensure that the parties are able to record and to verify what these historical site differences are? It’s to make sure that we understand what they are.  Correct.
It's a process – sorry, just to take you back.  You say it's a process to ensure that and to understand your answer was to – so that the parties could understand what they are? Correct.
Yes.  And that's a process that involves the AMWU and it's also a process that involves Opal, isn't it? Correct.  Both parties.
Yes.  It's not just a matter of one party identifying what they say is an HSD and writing that down.  It's a process that both parties go through to record and to validate what has been done? That’s the intent.  Correct.
Yes.  That is they need to be agreed? They need to be agreed.
And I think you say as much in your statement.  You say, 'This meant we would agree to practises happening currently.’? That’s right.
Yes.  And you go further.  I think you say, 'All conditions are only valid for the life of an enterprise agreement when the parties then agree to continue them to change them or no longer to support them.’? That’s correct.

And that's the case with this agreement also, isn't it? Sorry?  What's the question?
That's the case.  That's the case with this agreement? Of course.  At the end of this agreement everything is up for negotiation.

Ms Cassin stated that she learnt that the site management in South Australia were given a criteria that effectively meant nothing would be considered an HSD. She then received feedback from other sites that they were also using this other criteria which had not been agreed to. As the process started dragging on Ms Cassin urged delegates to put the matter in dispute so they could try and resolve the matter before the end of April 2022. Ms Cassin also urged them to send the lists of all the practices they were claiming to Ms Hogan so they could be discussed with Opal.

Ms Cassin stated that she had a meeting scheduled with Mr Hinds and Mr Beales for 18 April 2023 and the parties used that meeting to also discuss the HSD process. She had directed Ms Hogan to send the site lists of HSD’s to Mr Hinds and Mr Beales ahead of the meeting, highlighting the ones that she believed could be validated in payroll. At the meeting Mr Hinds and Mr Beales acknowledged that they had received the lists of items and that they would go away and look at them. Ms Cassin was expecting that they would come back with some comments, but they did not.

In cross-examination, Ms Cassin was challenged that the 18 April 2023 correspondence was an ambit claim, however Ms Cassin clarified it was an attempt to simplify the process of identifying HSD’s.[2]

Ms Cassin stated that as there was no response from Mr Hinds and Mr Beales about the HSD’s and the 3 month deadline was approaching, she directed that the dispute be filed in the Commission for resolution.

(a)(ii) Ms Hogan

Ms Hogan stated that she has been employed as a National Industrial Officer with the AMWU since November 2006, and since December 2021 she has had responsibility for matters dealing with Opal, including being an AMWU bargaining representative during the negotiations for the 2022 Agreement.

Regarding HSD’s, back when Amcor was running the various sites, they recognised that different practices, conditions and pay rates existed across those sites, particularly where the company had been bought out by Amcor. When Amcor entered into its first enterprise agreements, those differences were included under a clause which has been known as “Historical Site Differences”, however to the best of Ms Hogan’s knowledge there is no definitive list of what is and is not an HSD.

Ms Hogan stated that during a recent dispute over the application of an HSD at Revesby, she found documents from the negotiations between the AMWU and Amcor for the 2010 Enterprise Agreement.

During those negotiations the parties explored the codification of the practices that were covered by the clause, whether as part of the negotiations or to be done later, during the life of the enterprise agreement. From the documents it appeared that the parties never completed the process.

On 18 February 2022, Opal lodged a dispute with the Commission regarding the Revesby RDO dispute. The Revesby RDO dispute had not been resolved before bargaining for the 2022 Agreement had concluded. As a result, Ms Hogan stated the question of what was (or was not) an HSD was certainly in the back of her mind during negotiations for the 2022 Agreement.

Ms Hogan noted that in the negotiation of the 2022 Agreement, one of Opal’s claims for the proposed Agreement was the removal of the HSD clause, which was Clause 5 of 2019 Agreement because “it deals with historical Orora matters not relevant to Opal.” This proposal was strongly opposed by the AMWU.

After a number of months of bargaining, the AMWU made an application to the Fair Work Commission for a Protected Action Ballot Order. This included taking a 48 hour stoppage commencing from 16 November 2022. A 72 hour stoppage was also endorsed and the AMWU notified Opal of the intention to take such action commencing from 22 November 2022.

Regarding the HSD clause, ultimately the AMWU agreed in principle with the final position of Opal which was 3 months within which to identify HSD’s.

Ms Hogan stated that after the 2022 Agreement was approved and commenced on 30 January 2023 the process of identifying site specific practices commenced. This was done at a site level, and she was not directly involved in any preliminary discussions or drawing up of lists at that time. During February and March AMWU delegates from the various sites were contacting the AMWU and telling them that while their local managers were considering the lists that they were being rejected because they didn’t meet “the criteria”.

Ms Hogan stated that she was puzzled because as far as she knew the criteria was “during the life of the 2019 Agreement” and “validated in payroll” and that it was unlikely that not one HSD met those criteria.

Ms Hogan stated that after discussions within the AMWU about how to deal with the issue, delegates were advised to put the matter in dispute. The AMWU could see the 3 month deadline looming and they wanted the matter to be resolved, including going to the Commission if required.

On 18 April 2023 Ms Cassin and Ms Hogan met with Mr Hinds and Mr Beales to discuss issues arising out of the 2022 Agreement. This included the wording of some clauses that had been rolled over from the previous enterprise agreement as well as the HSDs. Ms Hogan had sent an email to Mr Beales ahead of the meeting, providing lists of items claimed at the different sites (except for Scoresby). She had highlighted items that she believed would be able to be verified in payroll in pink. Ms Hogan stated she was “fairly liberal in applying the highlighting” as she imagined that there would be a joint meeting to further refine the list. In cross-examination, in response to a suggestion that the pink highlighting was an ambit claim, Ms Hogan stated “the process I undertook was if I wasn't sure I gave it a pink highlight.”[3]

As the 3 month deadline approached Ms Hogan said there was no positive engagement from Opal, and the AMWU decided to escalate the matter to the Commission. The AMWU believed that as they had placed the matter in dispute that Opal would be required to abide by the status quo contained in the dispute settlement clause.

The AMWU’s internal legal team filed the dispute application on 28 April 2023. Later that afternoon Opal sent the AMWU a letter stating that no HSDs had been agreed to and therefore they would not be continued beyond 28 April 2023.

Ms Hogan stated that at no stage prior to 28 April 2023 did she receive a response from Opal about how they had “verified in payroll” any item on the list of HSD’s.

(b)(i)Mr Hinds

Mr Hinds stated that as General Manager, he sat on the Steering Committee which signed off on the bargaining parameters for the 2022 Agreement, however he was not involved on a day-to-day basis in the bargaining, and he did not attend any of the bargaining meetings. As a result, his involvement in the bargaining process was, for the most-part, limited.

Mr Hinds noted that over the evening of 21 November 2022, Mr Beales and Ms Cassin proceeded to exchange correspondence in relation to the terms of the 2022 Agreement, particularly the terms of clause 5. Mr Hinds also had a number of phone calls with Ms Cassin during the night of 21 November 2022, in which they went back and forth discussing the drafting of clause 5 in an attempt to reach a resolution.

On 22 November 2022 at 12:37 PM, Mr Hinds sent an email to Ms Cassin and Ms Hogan attaching a letter proposing a settlement outcome and enclosing an amended draft of clause 5. The email read ‘Please see attached update and advise if this is ok and I will sign’. The amended draft clause stated that HSDs were to be identified and documented within a three-month period following commencement of the 2022 Agreement.

Mr Hinds denied Ms Cassin’s evidence that he said words to the effect that the three-month timeframe had come “from above”. He also denied that he said, “we will get it done in three months, you win”.

Mr Hinds stated that in response to a request of Ms Cassin, he included the words “validated in payroll” in the clause, to which Ms Casson and Ms Hogan responded, “Thank you done”.

After the commencement of the 2022 Agreement, Mr Hinds was aware that Mr Beales worked with Site Managers to implement the 2022 Agreement, including having Site Managers engage with employees and AMWU representatives for the purposes of seeking to identify historical site differences for the purposes of clause 5.

On 18 April 2023, Mr Hinds agreed he and Mr Beales had met with Ms Cassin and Ms Hogan to discuss a list of claimed historical site differences collated by the AMWU. He said he was not sent the list and was not involved in the assessment as to whether these met the criteria in clause 5. In fact, since that meeting, he has had limited involvement in the implementation of clause 5 or the dispute.

(b)(ii) Mr Beales

Mr Beales stated he is currently employed by Opal Commercial in the position of General Manager – Workplace Relations and has held this position since January 2022. Opal Commercial is a related entity of Opal, both being wholly owned subsidiaries of Paper Australia Pty Ltd. Prior to January 2022, he was employed by Paper Australia Pty Ltd in the position of General Manager Human Resources and before that, National Employee Relations and Human Resources Manager. He held these positions for around 12 years.

Mr Beales represented Opal in its bargaining for the 2022 Agreement. Bargaining commenced in June 2022. The AMWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were each employee bargaining representatives. The AMWU took the lead role in bargaining on behalf of employees.

Prior to, and during, the bargaining process, Mr Beales was aware of the proceedings in the Commission concerning the Revesby RDO dispute. The differing views canvassed in that proceeding regarding the operation of the historical site differences clause, led Mr Beales to form the view that Opal should achieve clarity in the terms of the 2022 Agreement regarding any site-specific practices that needed to be maintained.

On 19 July 2022, Mr Beales received an email from Ms Hogan attaching the AMWU’s log of claims.

In relation to clause 5, the log of claims proposed that the ‘Revesby Maintenance RDO and all historical site differences codified and put into Agreement’.

On 29 July 2022, Mr Beales sent an email to Ms Cassin and Ms Hogan attaching Opal’s log of claims. Opal’s log of claims proposed the removal of clause 5 of the 2019 Agreement ‘as it deals with historical Orora matters not relevant to Opal’. In response to the AMWU’s claim, Opal’s response read:

Matter has been the subject of a decision of McKinnon C. Opal would like to further explore the “codification” idea proposed as it ties in with Opal’s claim 6. Opal requests that the AMWY (sic) provide a copy of the proposed clause or annexure setting out all of the “codified differences” that the AMWU seeks to include.

Between 2 August and 21 November 2022, the parties exchanged various proposals for a clause dealing with HSD’s, without resolution.

Arising from the events of 21 November 2022, numerous drafts were exchanged for an HSD clause. Mr Beales noted that, finally, in response to an email from Mr Hinds, at 12:45 PM, Ms Cassin sent an email in response which stated that ‘The last clause isn’t validated by payroll that wording was agreed please put back keep simple please’.

At 1:06 PM, Mr Hinds sent an email in response attaching the same letter enclosing a further amended draft of clause 5 addressing Ms Cassin’s request to include the words ‘validated in payroll’. At 1:15 PM, Ms Cassin sent an email in response that read ‘Thank you done’.

Mr Beales stated that he understood from the above emails that the parties had reached an in-principle agreement on the terms set out in the attachments to Mr Hinds’ email sent at 1:06 PM on 21 November 2022

On 9 December 2022, the Full Bench handed down its decision in the appeal proceeding.

Between 13 to 19 December 2022, employees were able to vote on whether to make the 2022 Agreement. At the close of the voting period, a majority of employees voted in favour of the 2022 Agreement. The 2022 Agreement was approved by the Commission on 23 January 2023, and it took effect on 30 January 2023.

Following the approval of the 2022 Agreement, Mr Beales stated he was involved in implementing the terms of the 2022 Agreement, including clause 5 and the process contemplated for identifying and documenting site-specific practices in the three-month period following commencement.

Mr Beales stated he was involved in developing the process for Site Managers to apply in determining whether a practice or condition met the criteria in clause 5. He said he was conscious of the three-month timeframe and the need to progress that process without delay. Accordingly, on 25 January 2023 he worked with Ms Yuen and Mr Hinds to brief Site Managers on the implementation of the 2022 Agreement. The briefing addressed the process for identifying and documenting ‘historical site differences’ by 30 April 2023, in accordance with clause 5. During this briefing, he, Ms Yuen and Mr Hinds told Site Managers that in relation to clause 5 they were responsible for (among other things):

(a)collating claimed ‘site-specific practices and conditions’ from employees at the relevant Site;

(b)considering whether the claimed matters met the requisite criteria for a ‘site-specific practice and condition’ under clause 5 (and if any did, submitting a list of the qualifying ‘site-specific practices and conditions’ to a ‘central team’ consisting of Ms Yuen, Mr Hinds, the relevant Regional Managers and me for consideration); and

(c)if the central team agreed that the practice met the requisite criteria, sharing a draft clause giving effect to that ‘site-specific practice and condition’ with the relevant employee and their representatives for discussion.

Mr Beales intended that once the Site Managers finalised the draft clause with the employees at Site level, he would then share those with Ms Hogan for confirmation, and they would then ensure that all agreed clauses were consolidated into a single document. Mr Beales considered this to be a sensible and efficient process as the Site Managers and employees at the site had knowledge of practices at sites and could discuss and agree on the details. Mr Hinds, Ms Yuen and Mr Beales did not have a detailed knowledge of any site-specific details at that time.

During the briefing, Mr Beales, Ms Yuen and Mr Hinds said that in order for the Site Managers to determine whether a matter was a ‘site-specific practice or condition’ meeting the criteria in clause 5, they needed to be satisfied as follows:

(a)the practice or condition is site-specific (i.e. does not occur at any other Site);

(b)the practice or condition is validated in payroll records;

(c)the practice or condition was in existence at the Site for the life of the 2019 Agreement;

(d)the practice or condition is not limited to one or a handful of individuals at the Site – instead, it is (and has been since 1994) applied consistently as a site-specific practice or condition; and

(e)the practice or condition is not an unintended payroll configuration error, but a deliberate practice or condition in place at the Site.

On 8 March 2023, Mr Hinds and Mr Beales met with Ms Hogan and Ms Cassin to discuss a range of matters including clause 5 of the 2022 Agreement. Ms Hogan or Ms Cassin said words to the effect that the AMWU did not agree on the criteria to be applied in implementing clause 5. They also said words to the effect that ‘site-specific practices and conditions’ should be identified and assessed at the national level. Mr Beales said words to the effect that this process should occur at the Site level between the relevant delegates and Site Managers who had the relevant information as to what actually happened at the Site.

Later on 8 March 2023, after the above meeting had concluded, Ms Hogan sent Mr Beales an email attaching an Opal document which listed 20 matters claimed by the AMWU at the Athol Park Site, 19 of which had been assessed as not meeting the criteria (the remaining one was marked with a question mark). Ms Hogan’s email stated that the AMWU would collate claimed ‘HSDs’ from each Site and forward to Mr Hinds and Mr Beales by the end of March 2023, so that they could then meet again to work through the list.

On 22 March 2023, the Site Manager at the Spearwood Site, Luis Giraldo Gomez told Mr Beales that that he had met with site AMWU delegates the day before and had worked through a list of claimed ‘historical site differences’.

On 24 March 2023, Mark Dewar (then Site Manager at the Scoresby Preprint Site) forwarded Mr Beales an email to him from Mick Bull (AMWU official) arranging a meeting to discuss historical site differences for the Scoresby Preprint Site on 27 March 2023. On 28 March 2023, Mr Dewar sent Mr Beales an email attaching a list of historical site differences claimed by Mick Bull and Grant Horan (AMWU delegate) at the meeting that had occurred.

On 28 March 2023, following a period of compassionate leave, Mr Beales sent an email to Ms Hogan in response to her email dated 8 March 2023. His email set out the basis for Opal’s view of the criteria under clause 5. The email included the following:

The discussion involving establishing agreed HSD's is best dealt with at site level as they are the experts not us. In the event there is a dispute over a HSD, the matter will progress through the various levels as set out in the DSP in the Agreement. For any HSDs that are agreed at the site level, I am happy to meet with you to draft the side document setting these out in writing before 30 April, as contemplated by clause 5(c).

Later on 28 March 2023, Ms Hogan sent Mr Beales an email in response which raised concerns about the criteria being applied by Opal. Her email stated that the matters that needed to be satisfied under clause 5(c) were that the practice or condition:

(a)was in existence at the Site for the life of the 2019 Agreement; and

(b)is validated in payroll records.

On 30 March 2023, Mr Gomez forwarded to Mr Beales an email sent to him earlier that day from Mr Jason Chrimes (the Father of the Chapel at the Spearwood Site), notifying him that the parties were in dispute about the ‘HSDs’.

Later on 30 March 2023, Mr Beales sent an email in response to Ms Hogan’s email dated 28 March 2023. Mr Beales’ email stated that it was his understanding that many of the claimed ‘HSDs’ did not even satisfy the AMWU’s interpretation of clause 5.

On 31 March 2023, Mark Dewar forwarded to Mr Beales a ‘written notification’ email from an AMWU delegate at the Scoresby Preprint Site formally lodging a dispute in relation to clause 5(c).

Later on 31 March 2023, Justin Edwards (Regional General Manager – Vic/Tas) forwarded to Mr Beales another ‘written notification’ email from an AMWU delegate at the Launceston Site lodging a dispute in relation to clause 5(c).

On 3 April 2023, James Sklifoff (Site Manager at the Athol Park Site) forwarded to Mr Beales another written notification email from the AMWU delegate at the Athol Park Site. Mr Beales stated that it was around this time that he began receiving reports from Site Managers that Site delegates were refusing to meet and discuss the application of clause 5 as they claimed the dispute was being escalated to the ‘national level’.

On 5 April 2023, Ms Hogan sent Mr Beales an email in response to his email dated 30 March 2023.

Her email stated that the AMWU maintained its position in relation to the interpretation of clause 5. Ms Hogan’s email also stated that ‘The matter of the exercise in (sic) Clause 5 (c) is disputed’, that the delegates at each Site will place the matter in dispute ‘so that the parties can go through the [Dispute Resolution Process]’ and that the status quo remains while the dispute is on foot.

Mr Beales notes that various emails outlining contending interpretations of clause 5 were exchanged. Then, on 13 April 2023, Regional General Managers of Opal sent an update to employees that stated that ‘Team members are reminded the cut off for codifying HSD’s is fast approaching’ and that these needed to be agreed and documented by 30 April 2023. The update requested that all potential claimed matters be submitted to Site management by 21 April 2023, so that Opal and the AMWU had time to codify agreed ‘site-specific practices and conditions’ in writing.

On 18 April 2023 at 10:52 AM, Ms Hogan sent Mr Beales an email attaching lists of various claimed ‘site-specific practices and conditions’ gathered from most of the sites, in preparation for a meeting at noon that day with Ms Cassin and Mr Beales. The purpose of the meeting was to go through what site differences had been collected by the AMWU. Mr Beales stated that the lists were sent approximately one hour in advance of the meeting, and he did not have sufficient time to properly consider them before the meeting or to test them with the Site Managers that had been discussing these at Site level. Further, each attachment contained an extensive list of various potential HSDs for the Site to which it related. In total there were at least 100 or so claimed HSDs. Ms Hogan’s email stated that she had ”highlighted in Pink those that should be able to be validated by payroll”. However, many of the items claimed were not highlighted pink. Mr Beales took that to mean that Ms Hogan acknowledged that those matters did not meet the criteria in clause 5. Mr Beales also took that to mean that Ms Hogan was not certain that the pink highlighted claims could be validated by payroll.

Mr Beales recalled that at the above meeting, Ms Hogan said words to the effect that she was still sorting through all of the potential ‘HSDs’ to try and develop a clear list of ones to claim, as many had been included by delegates when they should not have been because they did not even meet the criteria on the AMWU’s interpretation of clause 5.

On 28 April 2023, Mr Beales received an email from the AMWU filing an application for the Commission to deal with this dispute. Mr Beales said it appeared to him that despite his efforts and those of other Opal representatives to engage with the AMWU to seek to list and document site-specific practices and conditions, the AMWU was not interested in meaningfully engaging in the process to reach an agreed outcome by 30 April 2023.

Regarding the six sample alleged HSD’s the subject of consideration in these proceedings, Mr Beales evidence was as follows, based on his enquiries with Site Managers and Administrators at the relevant sites.

Item 1 — Friday public holiday

Mr Beales was informed by Steve Hutchinson, the former Site Manager at Preprint, that the Pre-Print Site did not exist in 1994, as it was only established in 1996.

Mr Beales also spoke with Jeanette Donner (Site Administrator, Scoresby), Rachel Flynn (Site Administrator, Brooklyn), Ahmad Ibrahim -Elgarty (Site Manager, Revesby) and Luis Geraldo (Site Manager, Spearwood) and asked them to review whether the practice had been in since 1994 at their site.

Mr Beales had been informed by Ms Donner that she had reviewed Payroll records and has not been able to determine whether the practice has been in place since 1994 at Scoresby.

Mr Beales had been informed by Ms Flynn that she has reviewed payroll records and had not been able to determine whether the practice has been in place since 1994 at Brooklyn.

Mr Beales had been informed by Mr Ibrahim-Elgarty that he had reviewed payroll records and has not been able to determine whether the practice has been in place since 1994 at Revesby.

Mr Beales had been informed by Mr Giraldo that he had reviewed payroll records and has not been able to determine whether the practice has been in place 1994 at Spearwood.

Item 2 — Paid break to attend a Christmas party at the Scoresby site

Mr Beales had spoken with Ms Donner, and she had informed him that at Scoresby, no Christmas party took place in 2020 due to the COVID-19 pandemic.

In addition, Mr Beales was informed by Ms Donner that she had reviewed the payroll records for 2021 and they did not indicate that employees at the Scoresby Site attended the Christmas party. Instead, those records simply stated that employees were paid ordinary time on the day of the party.

Item 3 — Pre-shift overtime for Production Leading Hands on Converting and Corrugator at the Scoresby site

Mr Beales was informed by Ms Donner that this arrangement was paused from approximately April 2020 until 2021 due to ‘shift bubbles’ being implemented at the Site during the COVID-19 pandemic.

In addition, Mr Beales was informed by Ms Donner that she had reviewed payroll records at the Scoresby site, and they did not indicate whether any choice to perform handover and shift preparation work up to 15 minutes before a shift was made. Instead, payroll records simply showed that up to 15 minutes of overtime was worked.

Item 4 — Post-shift overtime at double time rates on a Friday at the Scoresby Pre-Print site

Mr Beales had spoken with Mr Hutchinson, and he had informed him that the Scoresby Preprint Site did not exist in 1994, as it was established in 1996.

Item 5 — Bailer at the Revesby site

Mr Beales had spoken with Mr Ibrahim-Elgarhy, the Site Manager at the Revesby Site, who informed him that it is standard procedure for maintenance and cleaning of the bailer at the Site to take place at least every three months by a crew of two workers on a weekend where there is no production.

Mr Ibrahim-Elgarhy informed Mr Beales that this operating procedure was in place because bailer maintenance and cleaning could not take place while the machine is running, and as such, occurred over weekends.

Mr Ibrahim-Elgarhy informed Mr Beales that he had reviewed payroll records at the Revesby Site for the purposes of this proceeding, and that when employees performed this cleaning and maintenance work, payroll records reflect the fact that weekend overtime rates were paid (but do not identify or indicate the specific work performed). A separate spreadsheet is maintained by supervisors which records the purpose of overtime worked, however this is an operational document, the purpose of which is to ensure that regular cleaning and maintenance work is undertaken. This document does not form any part of Opal’s payroll records or pay system.

Item 6 — Payment of shift loading on overtime worked by maintenance employees at the Scoresby site

Mr Beales had spoken with Mark Dewar, the former Site Manager at the Scoresby Preprint Site who informed him that this practice was in place at that Site.

Mr Beales had spoken with Ms Flynn, the Site Administrator at the Brooklyn Site, who informed him that this practice was in place at that Site.

Mr Beales was informed by Hazel Rybinski, the Payroll Manager ANZ, that the payroll system had been configured to comply with clause 6.2.3 of the Graphic Arts General Award 2000, which provided for the payment of overtime on top of shift allowances for all employees at Scoresby. However, the incorporated Metal, Engineering and Associated Industries Award 1998 — which is the relevant award for maintenance employees at the Scoresby Site — does not provide for this entitlement. Ms Rybinski informed Mr Beales that this error replicates a payroll configuration inherited by Opal from Orora.

(c)(i) Ms Cassin in Reply

Ms Cassin disagreed with Mr Hinds’ statement regarding his lack of general involvement in the enterprise agreement process.

Regarding Mr Beales’ statement, Ms Cassin:

(a)Takes various issues regarding the parties respective positions during bargaining for the 2022 Agreement;

(b)Notes that the AMWU expressed concern to Opal that the company at site level had been instructed by “headquarters” that there were a number of criteria that needed to be satisfied over and above the “validated in payroll” and “for the life of the 2019 agreement” criteria, with no site manager being able to agree to anything beyond the criteria they got from Head Office. Ms Cassin states that the AMWU advised Mr Hinds and Mr Beales that they believed that this was a deliberate delaying tactic and that the matter needed to be escalated to be discussed at a national level.

Ms Hogan in Reply

Ms Hogan also disagreed with Mr Hinds’ statement regarding his lack of general involvement in the enterprise agreement process.

Regarding Mr Beales’ statement, Ms Hogan:

(a)Takes various issues regarding the parties respective positions during bargaining for the 2022 Agreement;

(b)Notes that the AMWU raised concerns about compiling a list at the National level because they had been informed by their delegates at some sites that the criteria being used were being used involved criteria that we had not agreed to.

(c)Agrees with Mr Beales about what she had said to him about the claimed HSDs and the email with the pink highlights. Ms Hogan also agree that no one from the AMWU had asked for Opal’s payroll records at this time because it was the AMWU’s belief that the organisation that was best positioned to determine whether something could be validated in payroll was Opal, and that process would have been at least started during the site meetings that were taking place in February and March.

(d) Ms Hogan in Further Reply regarding Question 3 and the site at Scoresby

Ms Hogan noted her previous two statements in relation to these proceedings.

Ms Hogan stated on 21 April 2023 at 10.46am, she sent an email to Mr Beales which attached a document which contained 'site-specific practices and conditions’ at the Scoresby site. The email, which she annexed, stated that: “attached is the list form Scoresby with pink highlighter against those that match the 2 criteria in Clause 5 c of the Enterprise Agreement”.

Ms Hogan further stated that at 11.46am on the same date, she received a reply email from Mr Beales and, at 12.20pm on the same date, she replied to Mr Beales’ email. That email stated

Thanks Rod – understand you’re busy. Can we confirm Opal’s view at this stage regarding the Sub clause of Clause 5 to be used with respect to the Criteria to be used? As Opal is aware, we say it is 5 c.

Applicant’s Submissions Regarding Questions 1 and 2

The AMWU submits that the answer should be “Yes” to question 1, being:

1. Is Opal required to maintain any site-specific practices and conditions under clause 5(c) of the Opal Fibre Packaging National Enterprise Agreement 2022 (“the Enterprise Agreement”), having regard to the identification and documentation requirements and the three month period contained in Clauses 5(c) and 5(d)?

The AMWU submits the answer to question 2 does not arise, but should the Commission find that the answer to question 1 is “No”, then the Commission should find not that the 3-month period is extended per se, but that the status quo provisions contained in Clause 16.3 preserve the site-specific practices until the dispute is resolved. The term “extended” is misleading.

Question 2 asked:

2. If the answer to question (1) is “No”, does Clause 16.3 extend the three month period contained in Clauses 5(c) and 5(d) until the dispute is resolved?

The AMWU submitted that the relevant clauses from the 2022 Agreement are Clauses 5 Historical Site Differences and 16 Dispute Resolution Procedures.

Citing various authorities including AFMEPKIU v Berri Pty Ltd (Berri),[4] the AMWU submitted the principles which the Commission must follow in interpreting an enterprise agreement are well established. The starting point is the ordinary meaning of the words, read as a whole and in context, taking into account the industrial realities and purpose pertaining to that agreement. The Commission must then determine whether the contested term has a plain meaning or is ambiguous.

The history of enterprise bargaining between the AMWU and the Respondent’s predecessors dates back to 1992. Each enterprise agreement, regardless of which company was the employer, contained a clause recognising difference between pay and conditions across the sites. The AMWU acknowledged that Opal was not involved in the negotiation of any such clauses until the 2022 Agreement, although it was bound to comply with the relevant clause in the 2019 Agreement as a transferring industrial instrument following its purchase of the Orora business in May 2020.

The AMWU noted that in February 2022, Opal attempted to change the working hours for maintenance workers at its Revesby site, thereby commencing the Revesby RDO Dispute. That change was opposed by the AMWU, because (among other things) the practice was a historical site difference and protected under the 2019 Agreement.

Bargaining for what would become the 2022 Agreement commenced in or about June 2022. At that time the Commission’s decision on the Revesby Dispute had not been handed down, and the initial decision once delivered was appealed during the course of bargaining. As such, bargaining was occurring without any definitive authority on what practices and conditions were captured by the enterprise agreement.

While Opal’s position going into bargaining was that they wanted the HSD clause scrapped as it dealt with historical Orora matters, eventually an in-principle agreement was reached on the broad operation of the clause on 22 November 2022.

The proposed 2022 Agreement was made accessible to Opal employees from 29 November 2022 and agreed to by Opal employees on 19 December 2022. After the access period for the 2022 Agreement commenced, on 9 December 2022 the Full Bench handed down its decision in the Revesby RDO appeal. The Full Bench considered the construction of the HSD clause in the 2019 Agreement and confirmed that the rostering practice at Revesby was an HSD under the Agreement.

The AMWU submitted that when the parties commenced the process of identifying and documenting the practices and conditions that would be recognised in accordance with the new HSD clause, there was a fundamental disagreement as to the criteria that would apply. Opal relied on five criteria, while the AMWU position was, and remains, that the only relevant criteria are those contained in Clause 5(c), being that the practices needed to be in existence for the life of the 2019 Agreement and be verified in payroll.

The AMWU noted that in mid-April 2023, it had identified and documented practices at each site and provided them to Opal on 18 April 2023. Items on the list were highlighted where the AMWU believed the item could be “verified in payroll”. No further discussion was held in relation to these items before Opal indicated that there were no items agreed to be identified and documented as HSDs within the three month timeframe.

Regarding the question of whether a three month period had expired, the AMWU submitted that Opal is required to maintain site specific practices and conditions that meet the criteria set out in Clause 5(c). These practices must have been:
a. in existence for the life of the 2019 Agreement;
b. validated in payroll records
c. identified and documented within three months of the Agreement commencing, namely by 30 April 2023.
The AMWU noted that the parties engaged in a process of listing practices and conditions at each site. This may have been done by discussion4 and/or through the provision of lists from the AMWU to Opal.5 On its ordinary meaning the process of identifying and documenting the practices had occurred within the three months. Therefore any three month period has not expired.

While it was not disputed that Opal did not agree with any of the items put forward by the AMWU, Opal’s decision was not in accordance with Clause 5(c). A plain reading of sub-clause 5(c) only includes two criteria that must be met. The criteria adopted by Opal went beyond those two criteria. The use of additional criteria is not supported by the text of the Agreement, nor what was agreed in principle by the parties during discussions on 21-22 November 2022.

The AMWU submitted further and in the alternative, that if the phrase “identified and documented” implies that agreement must be reached within the three month period (which is not a position that the AMWU supports), the AMWU submits that there is nothing in Clause 5 that suggests that the clause is not subject to the operation of Clause 16.3 while the matter is still in dispute. Sub-clause 16.3 is quite specific about the preservation of entitlements while ever the dispute is being resolved.

Regarding the question of what makes a “site-specific practice”, the AMWU submitted that Clause 5 has been drafted in a way that is deliberately intended to recognise HSDs in a way that is distinct from the past enterprise agreements. There are three separate but linked concepts in terms of the maintenance of HSDs and the 2022 clause provides for the rejection of any past agreement on what is and is not an HSD. The three separate concepts are:

a.   Sub-clause 5(a) which provides the background and context that separates the 2022 HSD clause from the HSD clause in any past agreement. It acknowledges that there is a dispute about the interpretation of the clause in the 2019 Agreement which is yet to be finally determined.
b.   The parties then recognise and commit to abiding by the decision of the Full Bench in relation to “Revesby Maintenance rostering and RDO arrangements.”
c.   The parties then pivot to a separate arrangement for maintaining HSDs. The parties set out specific criteria and commit to a timeframe for identifying and documenting the practices and conditions that meet the necessary criteria, and it is emphasised that it is only these practices and conditions that will continue to be recognised going forward.

The AMWU submits that by using the word “Otherwise” at the beginning of sub- clause 5(c) the parties have indicated that they are differentiating from the Revesby Dispute and starting a new process to determine what practices and conditions would continue to be recognised. This is reinforced by sub-clause 5(d) stating that it is only those practices and conditions recognised under clause 5(c) that are required to be maintained. The Revesby Dispute is separate from clause 5(c). As such, the AMWU submitted that on its ordinary meaning, sub-clauses 5(c) and 5(d) stand-alone from sub-clause 5(b).

The AMWU submitted that when sub-clause 5(c) is examined there are ambiguities arising from the application of the following terms and phrases:

a. “in existence for the life of the [2019 Agreement]”

b. “as validated in payroll records”.

The AMWU submitted that an ordinary interpretation of the phrase “in existence for the life of the 2019 Agreement” is straightforward. The 2019 Agreement commenced on 31 December 2019 and operated until it was replaced by the 2022 Agreement on 30 January 2023. However the AMWU also noted that when the parties discussed the wording on 21 November 2022, the aim of the criteria was to allay concerns and only deal with current practices. What was not discussed, but would have been known by all those present, was that practices within the site were required to change because of measures taken by Governments during the recent COVID-19 pandemic. Opal implemented a number of safety measures which resulted in some practices not occurring. Similarly there are practices available to workers, such as pre-approval of overtime, which might not need to be taken up at all times.

The AMWU submitted that, because of the circumstances, “for the life of the 2019 Agreement” is therefore ambiguous. The AMWU submits that the phrase should be interpreted as “current practice”, particularly given the industrial context of what occurred during the operation of the 2019 Agreement, particularly when practices were changed on a temporary basis to protect health and safety.

The AMWU submitted the term “validated” means “substantiated” or “confirmed”, and as such, it was necessary to confirm that payment was received in relation to a practice or condition. However, it is not clear what is meant by “payroll record”. The AMWU submits that the term should be applied to encompass the records supporting payment of the worker, whether it is that they are doing such work and being paid for it, or overtime has been approved for it, but it should not be interpreted so narrowly that there needs to be a line item in a payslip to say that a particular practice has been paid for.

Opal’s Submissions Regarding Questions 1 and 2

Opal also cited various authorities regarding Agreement interpretation and the principles the Commission must follow in interpreting an enterprise agreement. Opal put particular emphasis on the history and terms of enterprise agreements applicable to the relevant employer and employees, including the context in which they were brought into existence and implemented, and which form part of the relevant context in which a particular term falls to be construed.

Opal submitted that the way in which a workgroup or industry conducts itself under successive industrial instruments remains a permissible aid to the construction of a successor instrument in an appropriate case. This is particularly so where that context demonstrates a common understanding about a particular state of affairs. If such a common understanding existed when the agreement was made, it should not be departed from when the Court comes to construe it at a subsequent time.

While evidence of surrounding circumstances may be admissible to determine the proper construction where there is a constructional choice, recourse may not be had to evidence of the parties’ statements and actions reflecting their actual (that is, subjective) intentions and expectations. Only evidence which discloses an objective common intention (which may include evidence of a mutual subjective intention) is admissible.

Opal submitted that the vast bulk of the AMWU’s evidence canvassed bargaining for the 2022 Agreement, and in particular the AMWU’s views and expectations around how particular terms were intended to operate. That evidence is inadmissible in aid of construing the 2022 Agreement.

Opal also noted the parties’ evidence of the HSD identification process during the 3 months following the 2022 Agreement commencement contained stark differences, with the AMWU’s evidence omitting considerable detail of the events of February to April 2023. However, questions around which party bears principal responsibility for the parties’ joint failure to conclude the clause 5 process within the time limit are irrelevant.

Regarding Clause 5 of the 2022 Agreement, Opal submitted several characteristics of the drafting of clause 5 are relevant:

(a)       First, clause 5 retains the heading ‘Historical Site Differences’ which appeared in each antecedent version of clause 5 dating back to 1994. The Full Bench in the decision regarding the Revesby Dispute (the Opal FB Decision) conducted a careful analysis of clause 5’s extensive history. The Full Bench found the use of the term “historical” in the clause’s heading “operates to confine the subject matter so that the clause cannot be read as applying to any site differences which might arise”.
(b)       Second, those parts of clause 5 imposing obligations, being subclauses 5(b), 5(c), and 5(d), are framed with express reference to the corresponding provisions appearing in the predecessor 2019 Agreement which is itself set out in subclause 5(a). Far from separating this HSD clause from the HSD clause in any past agreement as the AMWU submitted, the evident purpose of subclauses 5(b) to 5(d) in the 2022 Agreement is to build upon the antecedent cognate provisions by establishing a process to crystallise those HSDs. Each of the antecedent agreements had preserved HSDs pending a process to review wage parity issues between sites (a process which was never in fact performed under any of those antecedent agreements).
(c)       That in turn focuses attention upon the scope of the HSDs which the antecedent clauses protected, and upon which the current clause 5 now operates. The Full Bench in the Opal FB Decision found (at [52]) that:
“the historical context described by clause 5(a) leads to the conclusion that, insofar as clause 5 is concerned with the subject matter of “site differences”, being “practices and conditions” at a site not in place at any other site(s), it is concerned only with site differences which existed as a result of this historical acquisition process”.
[Emphasis added]

(d) The Full Bench’s conclusion (at 58]) is instructive:

“…we do not consider that the effect of clause 5 of the 2019 Agreement is to preserve in entirety the status quo at each site or to prevent any change to a practice or condition at any site which is different to any other site; rather, it only preserves those site differences of an historical nature which existed at the time of the 1992 and 1994 Agreements.
[Emphasis added]

(e)       Third, the use of the term “otherwise” in clause 5(c) does not suggest that the parties intended to discard the concept of HSDs as developed under antecedent agreements. Rather, the term “otherwise” seeks only to grandfather the HSD the subject of the Revesby Dispute from the process contemplated under subclauses 5(c) and 5(d). It does not expand the scope of HSDs under the 2022 Agreement beyond that appearing in the 2019 Agreement and antecedents.
(f)       Fourth, and as a consequence of the foregoing, the AMWU’s contention that clause 5 represents a “rejection of any past agreement on what is and is not an HSD” is simply wrong. Rather, a contextual construction of subclauses 5(c) and 5(d) make plain that the “site specific practices and conditions” to which those subclauses refer are a subset of those HSDs contemplated by the predecessor clause 5 appearing in antecedent agreements dating back to 1994. That is, subclause 5(c) of the 2022 Agreement contemplates a process of identifying, from those “site-specific practices” the subject of the predecessor clause 5, those which were in existence for the life of the 2019 EA and which could be validated in payroll records. Put differently, subclauses 5(c) and (d) were not intended to expand the universe of historical site differences beyond that which the antecedent agreements would have preserved.
(g)       Fifth, the composite phrase “that were in existence for the life of the Orora Fibre Packaging National Enterprise Agreement 2019” means just that. It has a plain meaning from which there is no contextual or purposive reason to depart. Whilst the parties can be taken to have known about COVID-19 public health orders, there is nothing to suggest that the parties turned their mind to how those restrictions impacted particular HSDs, nor that they had a mutual subjective intention to qualify the composite phrase in light of those restrictions. Had they so intended, one would expect clear words to that effect. If anything, the fact that the parties used unqualified language in the context of COVID-19 public health orders suggests a contrary intention.
(h)       Sixth,   Opal   agreed   with   the   AMWU   that   the   ordinary   meaning   of   “validated” , being “substantiated” or “confirmed”, applies to clause 5(c). It also agrees that “payroll records” ought not be confined to a “line item in a payslip”. Rather a “payroll record” ought to extend to those records which Opal is required to make and keep under Division 3 of Part 3-6 to the Fair Work Regulations 2009 (Cth).

The first sentence of clause 5(b) contains the relevant operative provision. We agree with the Commissioner’s conclusion in paragraph [26] of her decision that the expression “interstate site differentials” is a wider concept than the wage differentials sought to be addressed by the “wage parity” claim. As a matter of language, “interstate site differentials” is not confined to the issue of wages and, as the Commissioner stated, the use of the word “interstate” merely reflects the fact that the 2019 Agreement (as did the 1992 and 1994 Agreements and all agreements since) covers different sites across five Australian states. Further, the context provided by clause 5(a) indicates that the phrase “interstate site differentials” encompasses all differences in “practices and conditions” between sites. The bargain disclosed by clause 5(b) is that interstate site differentials (including wage differentials) of the requisite historical nature will be maintained “for the period of the Agreement” - an expression the meaning of which we deal with below – in return for the parties consulting about the wage parity issue prior to the next enterprise agreement and rectifying any “significant wages anomaly” at any site. In this respect, the text is consistent with the evidence of Mr Dwyer concerning the common understanding the parties had reached prior to the 1992 and 1994 Agreements.
[Emphasis added]

Consideration Questions 1 and 2

Question 1. Is Opal required to maintain any site-specific practices and conditions under clause 5(c) of the Opal Fibre Packaging National Enterprise Agreement 2022 (“the Enterprise Agreement”), having regard to the identification and documentation requirements and the three-month period contained in Clauses 5(c) and 5(d)?

The answer to Question 1 is,” Yes, but only until 30 September 2025”. The reason for the definite end date to the obligation to maintain is due to the variation in wording between the 2019 Agreement and the 2022 Agreement. In particular:

(a) The HSD clause of the 2019 Agreement provided “The parties agree that interstate site differentials will be maintained for the period of the Agreement…”. While the Commissioner at first instance in the Revesby RDO Dispute determined that “…for the period of the Agreement…” meant to the day after the operative period of the Agreement, the Full Bench rejected that interpretation and found “We consider therefore that, in the first sentence of clause 5(b), the “period of the Agreement” is the period in which the 2019 Agreement remains in force until it ceases operation consistent with ss 54(2)(b) and 58(2) of the FW Act — that is, until such time as a replacement agreement comes into effect at a time after 30 September 2022.”[7]

(b) In contrast, the HSD clause of the 2022 Agreement provides “Otherwise, the parties have agreed that from commencement of the 2022 Agreement through to the nominal expiry date of the 2022 Agreement, Opal will maintain site-specific practices and conditions that were in existence”. The maintenance obligation has varied, and now specifically refers to the nominal expiry date of the 2022 Agreement as the date on which that obligation ceases.

Paragraphs (a) and (b) of Clause 5 of the 2022 Agreement, incorporating as they do sub-paragraphs (a) and (b), acknowledge the HSD clause in the 2019 Agreement and its historical background, and state (unremarkably) that the parties agree to abide by the findings of the Full Bench in the Revesby RDO Dispute.

Paragraphs (c) and (d) of Clause 5 of the 2022 Agreement then outline the operative provisions of the HSD clause for the purposes of the 2022 Agreement. I agree with the AMWU that Clause 5(c) outlines two separate obligations.

(a) First, during the period from the commencement date to the nominal expiry date of the 2022 Agreement, Opal will maintain site-specific practices and conditions that have been in existence during the life of the 2019 Agreement, and had been validated by the payroll records; and
(b) Second, the parties committed to identifying and documenting the site-specific practices and conditions during the first 3 months after commencement of the 2022 Agreement.

Nothing in the text of Clause 5 of the 2022 Agreement requires the agreement of the parties as to what are the site-specific practices and conditions, either during the first 3 months after commencement of the 2022 Agreement, or at all. The only commitment is to identify and document, and maintain, such site-specific practices and conditions.

The Statement of Agreed Facts outlines in summary form the steps the parties took in the first three months of the 2022 Agreement. It outlined:

Clause 5 of the 2022 Agreement and the current proceedings
30.          After the 2022 Agreement took effect on 30 January 2023 the process of identifying “historical site differences” commenced. This included discussions between representatives of Opal and employees at some of the sites, as well as representatives of the Applicant providing various lists of claimed practices and conditions to representatives of the Respondent.
31.          The Respondent did not agree with any of items identified and submitted by the Applicant and/or its employees to representatives of the Respondent before 30 April 2023.
32.          On Friday 28 April 2023 at 10.31am, the AMWU lodged a Form F10 with the Commission to commence the current proceedings.
33.          On Friday 28 April 2023 at 3.38pm, Opal wrote to the AMWU to set out Opal’s view that there are no site-specific practices and conditions covered by clause 5 that Opal is required to maintain under clause 5. This is a position that Opal continues to maintain.
34.          Since the commencement of the current proceedings, the parties have engaged in discussions regarding the items claimed by the AMWU as “historical site differences” (“HSDs”) and currently 123 items are pursued as HSDs by the AMWU.
35.          In programming steps towards resolution of the dispute, the parties agreed in conference on 25 July 2023 that the present “part 1” arbitration for which this Statement of Agreed Facts is prepared will deal with the 6 claimed HSDs as set out below.
[Emphasis added]

The various lists of claimed practices and conditions provided to the representatives of the Respondent constituted identification and documentation of site-specific practices and conditions by the Applicant, as did the Respondent’s responses. As the Respondent submitted,[8] Ms Cassin’s and Ms Hogan's evidence was that they appropriately accepted that clause 5 in the 2022 Agreement was not intended to expand the universe of historic site differences but rather it was simply intended to identify and document, or to use their words, to codify, those HSDs within the meaning of the 2019 Agreement which remained in place for the life of that agreement.

Where the identification and documentation of site-specific practices and conditions that were in existence for the life of the 2019 Agreement does not result in agreement as to what were such site-specific practices and conditions, that dispute is amenable to determination pursuant to the Disputes Resolution Procedures of the 2022 Agreement, as has occurred in the matters the subject of Question 3 in this matter.

The Respondent submitted that the codification process ceased on 1 May 2024, due the effluxion of time, being the day after the three month period expired. I reject that submission for two reasons. Firstly, Clause 5 of the 2022 Agreement is focused on maintaining the site-specific practices and conditions that were in existence for the life of the 2019 Agreement. The Respondent’s submission would allow for the arbitrary erasure of the very site-specific practices and conditions that the 2022 Agreement required Opal to maintain.

Secondly, the interpretation advanced by the Respondent would mean that historical site differences, that the Full Bench found were “…differences which are the subject matter of clause 18 of the 1992 Agreement and the first version of the “Historical site differences” clause found in the 1994 Agreement”[9] could, after decades of assiduous preservation, be erased due to simple absence of agreement, bona fides or not, is absurd.

The need to avoid absurd results in agreement interpretation was addressed in Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine.[10] There, when considering a clause that specified when employees on various roster cycles were entitled to long breaks of 24 hours or in lieu thereof overtime, but that did not make provision for employees on fortnightly rosters, Katzmann J found as follows:

37. It is a principle of statutory construction that a construction which would produce an absurd result should be avoided because such a result is unlikely to have been intended. “Absurd” in this context has a very broad meaning. It refers to “virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief”: O Jones, Bennion on Statutory Interpretation, 6th ed, LexisNexis, 2013, §312; Paul Noel Dale v R (2012) 272 FLR 275; [2012] VSCA 324 at [132]; see also R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209; [2003] UKHL 20 at [116]–[117] (Lord Millett). I take the learned magistrate’s use of the word “absurd” to pick up the extended meaning and, in this context, to mean anomalous or illogical. I do not consider that in coming to this view her Honour fell into appealable error. To the contrary, I am persuaded that she was right.
38. Moreover, if Sydney Night Patrol’s construction were correct, it would be open to employers to circumvent the award’s requirements for long breaks by rostering everyone on a fortnightly cycle. It is unlikely that such an outcome was intended. In my opinion the purpose of cl 21.4 (read in its context by reference to the other provisions in the Award and the Award as a whole) is, as Mr Pulleine submitted, to ensure that no employee is required to work an excessive number of consecutive days without an extended period away from the workplace unless the employee is paid the appropriate penalty rate. The purpose of paragraph (a) is to stipulate the minimum number of breaks for those employees on roster cycles of more than two weeks’ duration. In these circumstances, it is likely that the omission from paragraph (a) of a reference to a two-week roster cycle was either an oversight or its inclusion was regarded as unnecessary.

Finally, as to Opal’s submission that no rational employer would agree to be bound, under pain of civil penalty, to maintain practices with which it did not agree, and of which it may not even have been aware until documented, that submission mischaracterised the effect of the HSD clause. As the Full Bench found, the proper construction of clause 5 of the 2019 Agreement is as follows:

“…Thus the historical context described by clause 5(a) leads to the conclusion that, insofar as clause 5 is concerned with the subject matter of “site differences”, being “practices and conditions” at a site not in place at any other site(s), it is concerned only with site differences which existed as a result of this historical acquisition process. It is these site differences which are the subject matter of clause 18 of the 1992 Agreement and the first version of the “Historical site differences” clause found in the 1994 Agreement. …”[11]

And:[12]

“…The bargain disclosed by clause 5(b) is that interstate site differentials (including wage differentials) of the requisite historical nature will be maintained “for the period of the Agreement” - an expression the meaning of which we deal with below – in return for the parties consulting about the wage parity issue prior to the next enterprise agreement and rectifying any “significant wages anomaly” at any site. In this respect, the text is consistent with the evidence of Mr Dwyer concerning the common understanding the parties had reached prior to the 1992 and 1994 Agreements.”

The provisions of the 2019 Agreement, that were acknowledged and continued in the 2022 Agreement, provided for the maintenance of HSD’s. By clause 5 of the 2022 Agreement Opal was committed to finally codifying those HSD’s it had always committed to maintain. Rather than Opal agreeing to be bound, under pain of civil penalty, to maintain practices with which it did not agree, it was committing to specifically codifying practices that it had consistently undertaken to maintain.

The answer to Question 1, “Is Opal required to maintain any site specific practices and conditions under clause 5(c) 2022 Agreement, having regard to the identification and documentation requirements and the three month period contained in Clauses 5(c) and 5(d)? is Yes.

Question 2. If the answer to question (1) is “No”, does Clause 16.3 extend the three month
period contained in Clauses 5(c) and 5(d) until the dispute is resolved?

While this question does not arise due to the answer to Question 1, I note that in the Hearing of the matter the Applicant made the following concession:[13]

Moving on to question 2 then, question 2 is, 'If the answer to question 1 is "No" does clause 16.3 extend the three month period contained in clauses 5(c) and 5(d) until the dispute is resolved?'  Now, my primary submission is if you answer question 1 in the affirmative, which in my submission you should, you need not trouble yourself with question 2.  However, for the sake of completeness I do note that insofar as you're required to answer it the position is it is common ground between the parties that the answer to question 2 should be 'No'.

Question 3. If the answer to either question (1) or question (2) is yes, are any of the following
site-specific practices and conditions for the purposes of Clause 5(c) of theEnterprise Agreement as referred to in question (1):

Applicant’s Submissions Regarding Question 3

The Applicant submitted that all the items put forward for the Commission’s consideration meet the two necessary criteria outlined in Clause 5(c) of being in existence for the life of the 2019 Agreement and validated in payroll records. Further, the Applicant submitted each issue was put to Opal in advance of the three month deadline.

The Applicant submitted that the objective intention of the parties as discerned from the text of clause 5, as well as the objective evidence from the negotiation of factual matters known to both parties, was that any principles enunciated by the Full Bench in interpreting clause 5 of the 2019 enterprise agreement would not apply in relation to the specific practices and conditions that are identified and documented pursuant to clause 5(c).

The Applicant noted that clause 5(c) begins with the expression “Otherwise” and submitted that disjunctive expression provides a textual indication that clause 5(d) is moving on to a separate subject matter than the previously identified site-specific practices under the 2019 agreement.

In the Applicant’s submission, the relevant factual inquiry is what were the site-specific practices and conditions that were in existence during the period of the life of the 2019 Agreement, and insofar as they were site-specific practices and conditions that may not have been caught by the obligation to maintain under clause 5 of the 2019 Agreement, they are still captured by clause 5(c) of the 2022 Agreement.

The Applicant conceded that the fact that the heading of Clause 5 has not changed between agreements is a textual indicator of some continuity with the earlier provisions, however a distinction is drawn between the language used in the old clause 5, referring interstate site differentials and practices and conditions not in place at any other site, as opposed to the operative provision in 5(c) of the 2022 Agreement, which imposes an obligation to maintain the site-specific practices and conditions.  The parties had, the Applicant submitted, deliberately chosen different language.

The Applicant submitted that a disinterested third party observing the parties' conduct would conclude that the parties' objective intention was that the Full Bench's decision in the Revesby RDO Dispute would apply only in relation to the Revesby RDO arrangement, and some other arrangement would apply to other site-specific practices and conditions, but not whatever interpretation the Full Bench might give to Clause 5 in the 2019 Agreement.

Respondent’s Submissions Regarding Question 3

The Respondent denied there had been a shift in drafting in the 2022 agreement as opposed to what was dealt with by the Full Bench in the Revesby Dispute, and submitted  there is no substance to the proposition that extraneous or additional criteria were added to what was found by the Full Bench.

The Respondent submitted the reference to site-specific practices and conditions in the 2022 Agreement is equivalent in concept to historical site differences and interstate site differentials as they appear in clause 5 of the 2019 Agreement, which itself also appears in clause 5(a) of the 2022 Agreement. Clause 5 in the 2022 Agreement imports the previous clause and it retains the historic site differentials heading.

The Respondent submitted a cautious approach should be applied to the admission and reliance upon the positions advanced during the negotiation process, and referred to the judgment of Rares J in ARPA v Qantas:[14]

Substantially the Act provided that the agreement was tripartite document between a body of employees, a corporation with numerous officers and an industrial association.  The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity.  It is important in doing so to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who have sought to protect their differing interests by various formulations of words in it.  Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen.

While in Clause 5 of the 2022 Agreement the parties acknowledged that they would abide the Opal FB Decision, the Respondent submitted that did not provide a different result with respect to what historic site differences might mean, what site-specific practices and conditions might mean, or any intention to broaden the scope of those concepts in the 2022 Agreement. Ms Cassin and Ms Hogan's evidence was that they accepted that clause 5 in this 2022 Agreement was not intended to expand the universe of historic site differences, but rather it was simply intended to identify and document, or “codify” those HSDs within the meaning of the 2019 Agreement which remained in place for the life of that agreement.

Applicant’s Reply Submissions Regarding Question 3

The Applicant highlighted the chronology of the development of the 2022 Agreement and noted that at the time of an in-principle agreement being reached, the Opal FB Decision had not been received, and the first instance decision did not indicate that HSDs were limited to only those practices that were in existence as of 1994.

The Applicant pressed reliance on correspondence between the parties as establishing objective background facts, in preference to the evidence of Ms Cassin and Ms Hogan that was necessarily evidence of subjective intentions.

Consideration Question 3

The words of Clause 5 of the 2022 Agreement are clear. They specify a process for identifying and documenting from the set of HSD’s that were still in place for the life of the 2019 Agreement and that could be validated in payroll. All of the characteristics of HSD’s under the 2019 Agreement, as found by the Full Bench, continued into Clause 5 of the 2022 Agreement.

Clauses 5(b), 5(c), and 5(d) of the 2022 Agreement expressly refer to corresponding provisions in the 2019 Agreement. Those clauses build upon the antecedent provisions by establishing a process to crystallise those HSDs. Each of the antecedent agreements had preserved HSDs pending a process to review wage parity issues between sites (which never occurred).

The Full Bench in Opal FB Decision found (at [52]) that:

“Thus the historical context described by clause 5(a) leads to the conclusion that, insofar as clause 5 is concerned with the subject matter of “site differences”, being “practices and conditions” at a site not in place at any other site(s), it is concerned only with site differences which existed as a result of this historical acquisition process. It is these site differences which are the subject matter of clause 18 of the 1992 Agreement and the first version of the “Historical site differences” clause found in the 1994 Agreement”.

And (at 58]):

“We do not consider therefore that clause 5, properly construed, defeats the purpose of those provisions of the 2019 Agreement which involve a commitment to and the implementation of the principles of continuous improvement in order to improve productivity. Our earlier historical analysis also plainly demonstrates that provisions concerned with continuous improvement and productivity enhancement have existed side by side with the earlier equivalents of clause 5 ever since the 1994 Agreement, which indicates that the parties have never treated the preservation of historical site differences as defeating the former category of provisions. It might finally be observed that the fact that the issue of wage parity has not been addressed in the past 30 years indicates that the original bargain whereby the wage parity issue was to be deferred in return for the maintenance of historical site differentials has continued throughout “.

The retention of the heading “Historical Site Differences” which appeared in antecedents of Clause 5 operates to confine the subject matter to such historical site differences, and not to the broader grouping of any site differences which might arise.[15] The phrase “that were in existence for the life of the Orora Fibre Packaging National Enterprise Agreement 2019” is again referrable to historical site differences only.

The use of the term “otherwise” in clause 5(c) does not suggest that the parties intended to discard the definition of HSDs. To the contrary, that word simply recognises the express preservation of the Revesby Dispute.
The characteristics of historical site differences pursuant to Clause 5 of the 2022 Agreement are:

(1)       That “site differences” refers to “practices and conditions” at a site not in place at any other site(s);[16]
(2)       They are concerned only with site differences which existed as a result of this historical acquisition process, being the differences which are the subject matter of clause 18 of the 1992 Agreement and the first version of the “Historical site differences” clause found in the 1994 Agreement;[17]
(3)       They have been identified and documented during the first three months after the commencement of the 2022 Agreement; and
(4)       The differences were in existence for the life of the 2019 Agreement “as validated in payroll records”.

While the Applicant submitted that all items put forward in Question 3 met the necessary criteria and were all put to Opal in advance of the three month deadline, the criteria advanced by the Applicant in their submissions on Question 3 were not those identified above as the characteristics of historical site differences pursuant to Clause 5 of the 2022 Agreement. That is because, as the above determination had not been made, the Applicant was relying on their interpretation of Clause 5 of the 2022 Agreement that has been, in part, not accepted.

a. The practice of working a 5 hour shift on the Thursday before a PublicHoliday that falls on a Friday, even though such a practice occurs at morethan one Opal site covered by the Enterprise Agreement?

Opal accepts that this practice was in place for the life of the 2019 Agreement, and is validated in payroll records, which Opal does not contend was due to a payroll error.

Opal submits, however, that the practice does not meet the requirements of clause 5 for two reasons. First, it is not “site-specific” because the practice occurs at five Opal sites, and second, there is nothing on the evidence to demonstrate that the practice had been in place since 1994 (noting that one of the 5 sites at which the practice occurs did not exist in 1994).

In reply, the Applicant did not cavil with the submissions that the practice occurred at five sites and had not been in place since 1994 and relied on their interpretation of Clause 5 of the 2022 Agreement that has been, in part, not accepted. I note, however, that the text of the question foreshadowed the fact that the practice occurred at more than one opal site was a live issue.

As the practice of working a 5 hour shift on the Thursday before a Public Holiday that falls on a Friday occurred at five sites and had not been in place since 1994, I do not find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

b. The paid break to attend the Christmas Party at the Scoresby site, eventhough it was not held every year during the life of the 2019 Agreementbecause of COVID restrictions, nor is it separately validated in payrollrecords?

Opal submitted this practice does not meet the requirements of clause 5 for two reasons. First, it was not in place for the life of the 2019 Agreement as no Christmas party was held in 2020 due to COVID-19 restrictions. Second, it is not validated in Opal’s payroll records because there is nothing in any of Opal’s payroll records that “substantiates” or “confirms” any particular employee’s attendance at a Christmas party in 2021 or 2022. Attendance at those parties was optional, and payroll records of those employees who chose not to attend and keep working would show no difference to those who attended.

The Applicant submitted that Clause 5(c) of the 2022 Agreement does not say there cannot be interruptions in practices for any period of time, and the interpretation advanced by Opal that would result in the loss of longstanding conditions due to such extraordinary circumstances would be absurd.

I accept the Applicant’s submission. The practice was in existence for the life of the 2019 Agreement because it occurred in 2021 and 2022, and clearly would have occurred in 2020 but for such unforeseen circumstances. There is no reason to have regard to Opal’s payroll records because there is no suggestion that no employees chose to attend, and that all kept working. Some employees attended the Christmas party.

As to the practice of the paid break to attend the Christmas Party at the Scoresby site, I find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

c. The practice of pre-approved overtime of 15 minutes at the start of shiftfor Production Leading Hands on Converting and Corrugator at theScoresby site, even though it was only used at the election of the employeeover the life of the 2019 Agreement, and even though it temporarily ceasedduring COVID restrictions due to shift bubbles, and even though thepractice commenced after 1994?

Opal submitted the practice did not meet the requirements of clause 5 for three reasons:

(1)       It was not in place for the life of the 2019 Agreements as those arrangements were paused as a result of ‘shift bubbles’ implemented in response to COVID-19 restrictions;
(2)       The practice cannot be validated in payroll. The claimed practice allows Leading Hands given a choice to perform minutes pre-shift overtime if they wish, however, Opal’s payroll records do not “substantiate” or “confirm” that choice, because at best those payroll records will simply record 15 minutes’ overtime worked, without distinguishing from, for example, a Leading Hand who is directed to perform 15 minutes’ overtime outside of that practice; and
(3)       The practice has not been in place since 1994. Orora introduced the practice in 2019.

I reject the submission that temporary responses to the extraordinary Covid pandemic resulted in the practice not being in place for the life of the 2019 Agreement. But for externally imposed emergency measures the practice would have been consistent.

I also reject the submission that the practice was necessarily required to be validated in payroll. As the question itself makes it abundantly clear, there existed a practice of pre-approved overtime of 15 minutes at the start of shifts for Production Leading Hands on Converting and Corrugator at the Scoresby site, that was used at the election of the employee over the life of the 2019 Agreement. Validation was not required as the practice was admitted. Put alternatively, the admitted practice did not become invalid due to difficulties in interrogating the payroll systems of Opal.

Due to the fact that the practice was only introduced in 2019, however, and had not been in place since 1994, I do not find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

d. The payment of overtime at double time rates after the conclusion of theFriday shift at the Scoresby Pre-Print site, even though the practicecommenced after 1994?

Opal accepts that this practice was in place for the life of the 2019 Agreement, is site-specific, and is validated in payroll records. Opal submits, however, that the claimed practice does not meet the requirements of clause 5 because it has not been in place since 1994. The Applicant did not cavil with that submission.

As the practice had not been in place since 1994, I do not find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

e. Where Bailer preventative maintenance and cleaning at the Revesby site isconducted at a minimum every 3 months. This clean-up is conducted bythe bailer crew made up of 2 workers on a weekend schedule when there isno production, even if this is not separately validated in payroll recordsand even though this has not necessarily been a consistent practice since1994?

Opal submits that Bailer preventative maintenance and cleaning at the Revesby site is conducted at a minimum every 3 months does not meet the requirements of clause 5 for three reasons:

(1)       It is not a “practice or condition” in the sense that clause 5 contemplates. It concerns the frequency of Opal’s maintenance and cleaning of certain plant and equipment. It does not concern any condition touching upon employee entitlements;
(2)       It cannot be validated in payroll records. Those relevant payroll records merely show weekend overtime worked, and do not evidence what the employee was doing; and
(3)       The practice has not been in place since 1994.

As the practice had not been in place since 1994, I do not find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

f. The practice of paying shift loading on overtime worked by maintenanceemployees at the Scoresby site, even though the practice occurs at morethan one site and is possibly an error in payroll?

Opal accepts that the practice of paying shift loading on overtime worked by maintenance employees at the Scoresby site was in place for the life of the 2019 Agreement, and that it was validated in Opal’s payroll records. Opal submits, however, that the practice does not meet the requirements of clause 5 for three reasons:

(1)       It is not site-specific as it also occurs at the Brooklyn Site and the Scoresby Pre-Print Site;
(2)       There is no evidence to demonstrate that the claimed practice has been in place since 1994; and
(3)       The practice is a payroll error inherited from Orora.

The Applicant did not cavil with the submission that the practice had not been in place since 1994.

As the practice had not been in place since 1994, I do not find that practice to be a site-specific practice and condition for the purposes of Clause 5(c) of the 2022 Agreement.

Disposition of the Application

For the foregoing reasons, the dispute should be determined as follows:

The answer to Question 1, “Is Opal required to maintain any site specific practices and conditions under clause 5(c) 2022 Agreement, having regard to the identification and documentation requirements and the three month period contained in Clauses 5(c) and 5(d)?” is “Yes”.

The answer to Question 2, “If the answer to question (1) is “No”, does Clause 16.3 extend the three month period contained in Clauses 5(c) and 5(d) until the dispute is resolved?” does not arise due to the answer to Question 1.

The answer to Question 3, “If the answer to either question (1) or question (2) is yes, are any of the following site-specific practices and conditions for the purposes of Clause 5(c) of the Enterprise Agreement as referred to in question 1”, the answers are:

(a)         “No”.
(b)         “Yes”.
(c)         “No”.
(d)         “No”.
(e)         “No”.
(f)          “No”.

DEPUTY PRESIDENT

Appearances:

F. Anwar of counsel with K. Presdee for the Applicant.

A. Pollock of counsel with S. Wilding, solicitor for the Respondent.

Hearing details:

2023.

30 November & 1 December, Hearing.

Sydney.

Final written submissions:

Applicant Short Note dated 28 February 2024.

Respondent Short Note dated 28 February 2024.

[1] Transcript PN 337 to 350.

[2] Transcript PN 414 to 425.

[3] Transcript PN 541.

[4] [2017] FWCFB 3005.

[5] [2022] FWCFB 231, at [39] and [40].

[6] [2022] FWCFB 231, at [50] to [53].

[7] [2022] FWCFB 231, at [63].

[8] Transcript PN 1049, and 1227.

[9] [2022] FWCFB 231, at [52].

[10] [2014] FCA 385, at [37] and [38].

[11] [2022] FWCFB 231 at [52].

[12] [2022] FWCFB 231 at [53].

[13] Transcript PN 879.

[14] [2014] FCA 32.

[15] See Opal FB Decision at [51].

[16] See Opal FB Decision at [52].

[17] See Opal FB Decision at [52].

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