“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Ltd
[2023] FWC 1552
•28 JUNE 2023
| [2023] FWC 1552 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Simplot Australia Pty Ltd
(C2022/6835)
| COMMISSIONER WILSON | MELBOURNE, 28 JUNE 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Through an application made to the Fair Work Commission (the Commission) on 11 October 2022, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU) alleges a dispute arising under an enterprise agreement with Simplot Australia Pty Ltd (Simplot). The application is made pursuant to s.739 of the Fair Work Act 2009 (the Act) with the dispute being in connection with the terms of the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2021-2024 (the Agreement).[1]
The AMWU’s application engages with the question of the classification level for casual maintenance employee workers employed by Simplot at its Ulverstone, Tasmania potato processing plant.
After conciliation by me did not resolve the dispute the AMWU and Simplot discussed and eventually agreed two questions for determination by the Commission as follows:
Q1. In accordance with Clause 17 and the terms of Appendix 7 of the AMWU CEPU and Simplot Australia Pty Limited Employee National Collective Agreement 2021 – 2024, (Agreement) is there a requirement to classify casual maintenance workers at the Ulverstone site at the C10 level and not otherwise?
Q2. If the answer to Question (1) is “no”, how should casual maintenance workers at the Ulverstone site be classified?
The parties are agreed that the answer to Question 1 is “no”, which answer is consistent with the evidence and submissions before me. Answering Question 2 requires detailed consideration of the evidence and submissions which is undertaken below. For the reasons set out, I answer these questions as follows:
Q1: No.
Q2:Simplot is required to classify each employee in accordance with the employee’s relevant competencies held and used as a requirement of their assigned position. Such classification requires an individual consideration.
In addition to answering the questions for determination, I consider it appropriate to make two recommendations to the parties so as to ensure disputes of this nature do not continue.
The matter was the subject of a hearing by me on 2 May 2023 at which Ms Kathryn Presdee, Senior National Legal Officer appeared for the AMWU and Mr Paul Borobokas, Simplot’s Head of Workplace Relations appeared for Simplot. Evidence was received in the hearing in the form of written witness statements and oral evidence from two Area Fitters on behalf of the AMWU, Mr Darren Gale and Mr Gary Edwards and Mr Vishal Kakkar, Engineering Manager and Ms Sandra Wilson, Human Resources Manager on behalf of Simplot. Mr Bryan Tuit, Ulverstone Plant Manager provided a written witness statement on behalf of Simplot however did not give oral evidence.
RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE
In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it.[2] It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.[3]
In doing so, the Commission must examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. That task necessitates examination of the text of the dispute settlement procedure, understood in light of its industrial context and purpose, in order to determine whether the dispute, properly characterised, falls within it.[4] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed since “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”[5]
The Commission may only deal with a dispute if it is expressly authorised to do so.[6] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)[7] and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.[8]
The Full Court summarised the principles for the interpretation of enterprise agreements in Workpac v Skene as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”[9]
The principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[10] usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise agreement, however do not require repeating in this decision.
CONSIDERATION
The Agreement covers maintenance employees across Simplot’s Australian operations with the agreement providing terms and conditions of general, national application and with certain provisions and wages schedules applying to the company’s different production sites.
The Agreement includes a dispute resolution term of general application that enables unresolved disputes to be the subject of conciliation and/or arbitration by the Commission. I am satisfied the term requires or allows the Commission to deal with this dispute as Clause 46 provides that “the application of this Agreement; matters pertaining between the employee and the Company; matters pertaining between the Unions covered by this Agreement and the Company; and the National Employment Standards (as amended)”. Further, the clause allows for unresolved matters to be referred to the Commission for conciliation and/or arbitration in the case both of site-specific and national disputes.[11]
The Agreement also provides for the incorporation of two awards, the Food, Beverage and Tobacco Manufacturing Award 2020 and the Manufacturing and Associated Industries and Occupations Award 2020, with the latter award being relevant to this dispute. Clause 6 of the Agreement sets out a construction rule to which reference may be made in the event of inconsistency between the explicit terms of the Agreement and the applicable award:
“6.2 To the extent that there is any inconsistency between this Agreement and the Awards, then the provisions of this Agreement must apply. Where this Agreement is silent, then the relevant Award must apply. Where this Agreement is silent and the relevant Awards differ on conditions, the relevant parties covered by this Agreement will resolve the issues in accordance with the provisions of this Agreement, including the dispute resolution provisions at Clause 46, Dispute Resolution.”
Site-specific wages and conditions applicable to the Ulverstone employees are set out in two appendices to the Agreement:
Appendix 4, which provides a number of site-specific conditions of employment for the Ulverstone employees, none of which are relevant for the disposition of this dispute;
and
Part of Appendix 6, which sets out the site-specific wages payable for each Simplot site covered by the Agreement.
The relevant part of Appendix 6 is in straightforward terms comprising the following:
“ULVERSTONE
…
Maintenance and Engineering Employees’ Wages
Hourly base rate **
Classification
FIRST PAY PERIOD ON OR AFTER 1 DECEMBER 2021
(2.1%)
First pay period on or after 1 December 2022
(3.5%)
First pay period on or after 1 December 2023
(2.2%)
C11 32.6857 33.8297 34.5739 C10 35.3743 36.6124 37.4179 C8 38.9116 40.2735 41.1596 C7 40.6804 42.1042 43.0305 C6 44.2178 45.7654 46.7722 C5 45.9867 47.5962 48.6433 **Tool allowance is to be added to the base rate and incorporated as part of the all purpose rate of pay.
***Dual trade allowance presently paid at Ulverstone shall continue to be paid and shall cease to be paid should a classification review outcome initiated by the Company in accordance with Appendix 7 of this agreement, determine that the employee’s present classification level includes the duties required of the employee to be performed by the employer.”
Determination of an employee’s classification requires application of at least three clauses, namely Clause 17 (Classification Structure), Appendix 7 (Operations Training Framework) and, relevant to this dispute, Clause 14.3 (Casual Employment).
Clause 17 establishes a number of principles for the existing classification structure as well as commitments about a process of future review:
“17. CLASSIFICATION STRUCTURE
17.1 The national classification structure is contained in Appendix 7.
17.2 The parties agree that fundamental to the development of this classification structure is a commitment to:
a) developing a more highly skilled and flexible workforce;
b) providing employees with career opportunities through appropriate training to acquire additional skills; and
c) removing barriers to the utilisation of skills required, particularly demarcation barriers.
17.3 Work will be performed within the classification structure limited only by the following:
a) an employee’s competence to perform such work;
b) that the work can be performed safely having regard to the individual and the organisation as a whole;
c) that the employee has the time to be able to carry out the work.
17.4 To achieve the above stated intent:
a) there will be a process of examining classifications and determining their appropriateness to the proposed new structure;
b) where necessary, jobs will be redesigned and where this is to occur, the fundamental principle will be;
c) within the limits of accredited training or work experience, as the case may be, all employees will undertake and complete the main task and as much of other tasks which are incidental, peripheral, practical and appropriate to their main task.”
Appendix 7 is lengthy and not extracted in full in this decision. Appendix 7 commences by stating the document “provides a framework for the implementation of a competency based classification structure for Metal Trades and Food Processing Operators. It incorporates nationally recognised and accredited competencies of the Metal and Engineering industry and other qualifications including the Certificate in Food Processing”. It includes a Vision and Mission as well as a statement of objective for employees to have access to higher classification levels and training opportunities:
“ACCESS
Employees will have access to higher career classification levels and training opportunities based on the following criteria:
·Employee’s willingness to accept the level of accountability
·Employee’s demonstrated commitment to site learning initiatives
·Demonstrated competency
·Using the competency
·Experience
·Needs of the enterprise”.
Appendix 7 sets out in detail a “Maintenance Personnel Classification Matrix” which specifies the training requirements for each level of employee, from C14 to C5.
The Appendix also provides for the establishment and operation of an Employee Development Committee with detailed provisions relating to Ulverstone as well as setting out a “Competency Based Classification Structure” and principles associated with competency-based classification. These principles are stated as follows:[12]
“PRINCIPLES FOR COMPETENCY BASED CLASSIFICATION
The following policies relate to progression within and full implementation of the competency based classification structure for all Maintenance and Food Processing employees at each plant.
1) All new employees must participate and complete the site Induction program prior to the commencement of duties.
2) Casual employees need only do the site induction once, unless it is deemed necessary by site management that they complete the induction again.
3) New employees will be classified in accordance with relevant competencies held and used as a requirement of their assigned position.
4) Training up to and including F1B or C13 will be a condition of employment for all existing employees.
5) All training and assessment should be consistent with the appropriate nationally recognised Training Package and lead to an AQF qualification.
6) The Company encourages training in the Food Processing Certificate or relevant AQF program beyond Level F1B, however this will not be compulsory unless the training is necessary for the employee to complete their job.
7) All contract labour hire personnel (e.g. ‘Manpower’ or ‘Skilled’) must complete the site and work area induction program prior to commencing their duties.
8) The Company determines selection of new employees. A key criteria of the selection process will be alignment of competencies and skills held by applicants to the requirements of the position available.
9) Maintenance Trades Assistant training beyond C13 is not compulsory, unless they are participating in a New Apprenticeship or Traineeship scheme.
10) Extra training undertaken by Maintenance employees because of the need for additional prerequisite skills will not necessarily count towards further reclassification to an even higher classification level.
11) Company support can be given for training beyond the immediate training needs of the site, where such training is consistent with site “Training Plans” and agreed to by the site manager and employee.
12) Progression into a higher classification is to be based on the needs of the enterprise and/or skills used by an employee.
13) The Level 5 (F4) operator pay rate is to be based on the site C10 rate. Additional allowances built into this rate may not apply, e.g. “Tool Allowance”.
14) Employees can’t be given credit for part of a competency. If an employee doesn’t meet all the requirements of a competency and it’s decided by the Company that he/she is required to use a competency, then the employee will be given that competency provided they agree to backfill the remaining requirements by the agreed time.
15) Employees will not be left one competency short of a Certificate Level, an appropriate competency will be identified through the EDC and the employee will be provided with the required training
16) Under a competency based classification structure, the mixed functions clause is not required.”
Within Appendix 7 there is also a section establishing an Employee Development Committee which is charged with implementation of competency-based training at Ulverstone.
The facts underpinning this dispute are relatively straightforward, with the following drawn from the submissions and witness statements of each party:
The Simplot site at Ulverstone manufactures frozen potato products such as chips, potato gems and hashbrowns;[13]
Simplot directly employs casual maintenance employees at Ulverstone either to cover absences in the permanent workforce or to cover the needs of regular maintenance shutdown periods;[14]
Simplot employs permanent maintenance fitters, either as Area Fitters who have responsibility for a particular area of the site or Shift Fitters who may be required to perform work anywhere at the site.[15]
Simplot explains the following about its employment of tradespeople:
“Simplot employs a number of trade qualified workers to undertake maintenance of equipment at its manufacturing plants. Examples of equipment that requires maintenance includes conveyor belts, sorters, blanchers, fryers, dryers, freezers, optical sensors and packing equipment for planned shuts, planned and unplanned absenteeism and emergency breakdowns, all of which impact operations. Examples of common mechanical maintenance activities undertaken at the Ulverstone plant includes:
a. Faulting finding and diagnostics
b. Disassembling
c. Assembling
d. Parts replacement
e. Testing
f. Lubricating
g. Cleaning”.[16]
There is a regular cycle of maintenance work carried out every three weeks with the exception of public holidays when there is a “Maintenance Monday”. On those occasions “[t]he permanent maintenance workforce is supplemented by a large number of both casual and contract employees who are allocated to particular areas to carry out both corrective maintenance on defects and on regular preventative maintenance of the various machines”.[17]
The AMWU contends the casual employees who are regularly performing maintenance at Ulverstone are paid at the C10 classification rate “regardless of the skills or qualifications held by the employees, or the work that they are allocated to perform when on site”.[18] Simplot contests whether this is the case, not admitting the AMWU’s contention, as well as submitting that employees are “classified according to the terms of the agreement”.[19]
Simplot argue about the origins of the dispute that in May 2022 the AMWU’s Organiser, Michael Wickham, claimed that “all casual tradespersons be classified at the C8 classification, irrespective of their qualification, experience or duties performed. Simplot refused Mr Wickham’s demand. Shortly thereafter, on 11 October 2022, the AMWU filed its dispute application in the Commission”.[20]
Simplot also argue that Clause 17, with the exception of subclause 17.1 has been the same since an agreement certified by the Australian Industrial Relations Commission in 2002, the Simplot Australia Pty Ltd (National Framework) Agreement 2002[21] (AG812819, PR912894) and that “[t]here is nothing contained in clause 17 which prohibits the engagement of a casual employee as a C10. Conversely, there is nothing in the clause which requires casual employees to be classified as such”.[22] Simplot also note the current Agreement also includes a new term that commenced with the approval of the Agreement in 2022 which, in Clause 18, committed the parties to review the terms of Appendix 7 “because Appendix 7 and related clauses may be antiquated and may need review”. According to Simplot the review has commenced and is presently ongoing.[23]
Simplot analyses the content of Appendix 7 in several ways including by making reference to the mutual commitment of employees having access to higher classifications through the “Access” clause referred to above, which includes the need for an employee to use the competency and to take into account the needs of the enterprise. It also submitted that:
“42. In this respect, Simplot engages casual maintenance employees based on operational requirements and the requirement to use competencies for the position they are hired to work.
43. Pages 96 and 97 is a matrix that defines the positions required in the metals classification structure at each production site. The classification structure is based on the Manufacturing Award. A casual maintenance employee employed at the Ulverstone site would also need to have the necessary minimum training requirements and relevant Units/Points in order to be entitled to the classification level and wage rate.”[24]
It notes that after the matrix Appendix 7 includes what it describes as transitional terms “that outline the process for implementing competency standards as it relates to maintenance employees” and that the “Principles for Competency Based Classification” set out above are policies “specific for maintenance employees to progress through the competency based classification, as well as the implementation of the competency based classification structure. These principles operated under the NCA 2011-2014 and applied to the implementation of the competency based classification structure for maintenance employees”.[25] These “policies” were agreed in bargaining and “set out the basis upon which employees are classified in accordance to the competency based classification structure”.[26] Further, with reference to item 3 of the Principles which provides “[n]ew employees will be classified in accordance with relevant competencies held and used as a requirement of their assigned position”, Simplot submit:
“49. It should be noted that the third listed ‘policy’ states that’ new employees will be classified in accordance with relevant competencies held and used as a requirement of their assigned position.’ (Underline added).
50. Hence, in the case of casuals engaged to perform maintenance activities, the classification will correspond to the position for which they are required to perform. If that position aligns to a Cl0, they will be paid at that rate. Conversely, if their position aligns to some other classification, they will be paid at the appropriate rate for that classification.”[27]
Simplot argue about the disposition of the dispute that employees should be classified as the circumstances demand:
“53. With respect to question 2, being how should casual employees be classified, Simplot says the answer is simple; casual employees should be classified at the appropriate level for their position taking into account the criteria required under the Agreement, which includes (relevantly):
a) the needs of the enterprise;
b) their demonstrated competencies; and
c) the position they are required to perform.
54. As outlined above, the Agreement contains express (and comprehensive) terms that regulate the classification of employees. The AMWU fails to deal with those terms in any meaningful way.
55. The AMWU seeks the Commission impose a blanket rule of parity at C8 for casuals who are engaged when a permanent is absent. It erroneously assumes the casual is engaged to perform all the tasks, duties and responsibilities of the absent permanent. It also assumes the casual has the qualifications, experience and competencies required of a C8. There is no evidentiary basis upon which it could make such a finding.
56. It should not be assumed that on every occasion a casual is engaged when a permanent maintenance employee is absent, the casual will be required or directed to step into the exact role of the absent permanent maintenance worker. Each occasion could depend on a myriad number of variables. There is no evidence of any particular circumstance in which this is said to have occurred.
57. Furthermore, just as there no requirement to classify casual maintenance workers at the Ulverstone site at the C10 level and not otherwise, there is no requirement under the Agreement to engage casuals tradespersons as a C8. It may be that Simplot assesses the scenario as not requiring or having a need for anything other than a Cl0 or C9 as the case may be. As outlined above, there are a number of criteria that are considered when determining an employee’s (casual or otherwise) classification under the Agreement.”[28]
There is no dispute between the parties that Question 1 should be answered in the negative. The AMWU contend about Question 2 which asks “how should casual maintenance workers at the Ulverstone site be classified?” that it should be answered in two stages:
by having regard to the principles in Appendix 7:
“The answer to Question (2) should pertain to when the casual employee is used. If the casual employee is being used to cover a worker who is absent, then the casual should be paid no less than at the C8 level, as that is the lowest level that a permanent Area Fitter is currently being paid1. For casual employees who work during the regular maintenance shut down periods, the Respondent should immediately apply the principles contained in Appendix 7, in consultation with the relevant Area Fitters, to determine the appropriate classifications for the work being performed by the directly employed casual employees; having regard to the Area Fitters’ existing work allocation practices.”[29]
and
through consideration of the circumstances of each employee:
“29. The Applicant submits that, compared to the work performed by permanent employees, there may be no difference to the level of competency required by a casual employee to perform those same tasks during scheduled maintenance. As such, it is unlikely that they should be paid at the C10 rate.
30. With this in mind, the Applicant urges the Commission to require that a classification process be undertaken for each casual maintenance employee, with input from those permanent employees who are best placed to know what work these employees regularly perform.”[30]
The AMWU suggests the Commission be led to this conclusion by having regard to several matters:
The Agreement provides no set rate of pay for casual employees. The reference within Clause 14.3 to casuals being paid a 25% loading “above the base rate of pay’ should not be taken as a reference to the lowest classification that may be available under the Agreement.[31]
All casual employees that are the subject of this dispute are qualified tradespeople with the C10 classification rate being a minimum entitlement:
“18. The minimum qualification under the Agreement for a holder of a recognised Trade Certificate, performing trade work is a C10.15 The Applicant believes that all casual employees to which this dispute refers are holders of trade certificates or equivalent, and, at a minimum, is able to exercise the skills and knowledge of the engineering trade to enable the worker to perform work within the scope of that classification.
19. The Applicant submits that the C10 classification is the minimum classification that the casual maintenance tradespeople can be placed; however the Applicant submits that there is nothing in the Agreement that mandates that these employees be classified as C10, nor is there anything that suggests that these workers cannot or should not be assessed individually based on the work they perform.”[32]
The AMWU’s submission regarding the minimum classification for a tradesperson is made with reference to the definition of C10 Engineering/Manufacturing Tradesperson Level 1 in the Manufacturing Award, Appendix A Clause A.4.7.
With reference to the Commission’s Four Yearly Review of Modern Awards 2016, the AMWU submitted that an employee’s classification should be based on the nature of the duties that are required to be performed by the employer and not solely upon the qualifications held by the employee and “[t]his principle is enshrined in the Principles for Competency Based Classification in Appendix 7, which states “New Employees will be classified in accordance with the relevant competencies held and used as a requirement of their position.”[33] The Full Bench in the Four Yearly Review of Modern Awards 2016 stated about a proposal for a new classification in the Animal Care and Veterinary Services Award 2015 that “[p]ayment of a rate of pay in an award is not dependent on the mere holding of a qualification. A classification level should be based on the nature of duties that are required to be performed by the employer”.[34]
Simplot submit that “the Agreement contains express (and comprehensive) terms that regulate the classification of employees”, with the AMWU failing to deal with those terms. The imposition of a “blanket rule of parity at C8 for casuals who are engaged when a permanent is absent” would be erroneous since it “assumes the casual is engaged to perform all the tasks, duties, and responsibilities of the absent permanent. It also assumes the casual has the qualifications, experience and competencies required of a C8. There is no evidentiary basis upon which it could make such a finding”.[35] In generality it agrees with the AMWU’s submission that an employee’s classification should be decided by the duties they are required to perform and not solely through reference to their qualifications, submitting:
“61. Once again, generally speaking, Simplot agrees with this submission. It reflects the point that there are multiple criteria that are considered when classifying an employee, including the two listed in the excerpt above. There may be a mix of duties it requires to be carried out as part of its maintenance operations. There is no basis to mandate C8 where a casual is engaged during the absenteeism of a permanent maintenance worker. No term of the Agreement requires such a blanket approach.
62. Secondly, the AMWU states that along with applying the principles in Appendix 7, Simplot should do so ‘in consultation with the relevant Area Fitters, to determine the appropriate classifications for the work being performed by the directly employed casual employees; having regard to the Area Fitters’ existing work allocation practices’.
63. Appendix 7 contains a comprehensive set of principles relating to determining classifications. There is no express requirement in the Agreement of the employer to engage in consultation with the Area Fitters to determine the classifications of casuals. Feedback regarding the performance of casual maintenance labour provided from the Area Fitters would be required. The AMWU seeks to lead the Commission into error by asking it to state that the Agreement requires it.
64. The appropriate forum regarding the classification review for casuals and other maintenance employees is via the site Employee Development Committee as outlined on page 91 of the Agreement.
65. At paragraph 7 of the AMWU’s Submissions, it is said that the maintenance team is made of Area Fitters who ‘have responsibilities for a particular area of the site ... ‘ and shift fitters who are required to work flexibly anywhere at the site.
66. However, casual maintenance workers engaged for short periods do not have responsibility for a particular area. Casual maintenance fitters perform duties during a shut after the planning stage during which diagnostics and fault finding is carried out.”[36]
In conclusion Simplot argues that there is no current misclassification of casual employees, with employees “classified according to the terms of the Agreement”.[37] Simplot also draw attention to an earlier decision of Commissioner Gregory which canvassed the history and explanation of transitioning employees to competency-based classification arrangements.[38]
Mr Bryan Tuit, Simplot’s Ulverstone Plant Manager, Mr Vishal Kakkar, Simplot’s Engineering Manager and Ms Sandra Wilson, Simplot’s Human Resources Manager gave evidence from Simplot’s perspective about how a casual maintenance employee would be classified by the Respondent. Mr Darren Gale and Mr Gary Edwards gave evidence on the subject for the AMWU. The product of that evidence includes that there is a default engagement by Simplot of casual employees at the C10 level, and that Simplot see the classification review process as being comprised only of the things within Appendix 7.
When a casual employee is engaged, they are classified at the C10 rate. This might be despite having decades since qualifying as a tradesperson and from Mr Edwards’ point of view despite them having “developed specialized skills which I rely on whenever they are working with me at Simplot. As they are performing work that I do myself, I do not know why they are only classified at a C10 classification”.[39] Mr Edwards further contended that:
“The automatic C10 classification for casuals has been a concern of myself and my other maintenance delegate, Darren Gale, for many years. The work that is expected of casuals, and the level of experience that many of them have when they are hired are much higher than the C10 rate of pay they are paid. Management, however, have had little interest in assessing (or re-assessing) this work.”[40]
Ms Wilson’s evidence was that incoming casual employees were classified at the C10 rate with no actual assessment of their skills, following a practice of classification without direct or individual analysis of the work to be performed and there not being a process to identify the person’s skill, giving this evidence in cross-examination by Ms Presdee:
“Do you determine that they are classified as a C10? ‑Yes, I - yes.
You were a bit hesitant? ‑Only in that when we engage a new casual, what we are looking for is a maintenance tradesperson, so, yes, they are brought in as a C10.
But you don’t actually assess their own skills, you just ask if they meet the necessary standard for a C10, i.e. a qualified tradesperson, therefore they get paid a C10? ‑That’s correct at the recruitment stage, yes.
At the recruitment stage. Other than the checking of qualifications, there is no initial classification based on the work that they may be required to perform? That’s what you are telling me? ‑I suppose the best I can tell you is that that assessment would have been done some time ago and it is standard practice to bring a casual in at C10 based on the requirements that we expect them to fulfil, particularly in relation to, say, maintenance and shutdowns, which is what they are usually brought in for, at least in the early stages, so I suppose it’s based on that level of work and that level of supervision that it has been determined, probably some years ago, that that level of work would be a C10 and we have followed that practice.
So you’re telling me that you’re following a practice, not necessarily a classification process? ‑Yes, that’s correct.”[41]
Mr Kakkar, who is responsible for issuing the Work Orders accepted that he does not have a detailed understanding of classification or competency requirements instead, he goes “by what’s written in the Manufacturing Award and it’s basically less or limited supervision and we want qualified tradespeople who work under limited supervision of our permanent trades team”.[42]
Mr Kakkar also put forward that a “Work Order” is issued on the day to each casual employee and contractor “to make sure work happens to the high standard”,[43] drawing a distinction between the expectations consequently on one of those workers and those on the permanent workforce:
“18. Typically during a maintenance and shut day, the Area Fitters are responsible for updating the work list and provide a progress update to their respective team leader and update about any quality, safety concerns, labour or emergent work issues that has arisen.
19. The casuals engaged as C10 are not responsible for the supervision of the maintenance program in the areas in which they work. Nor are they assigned with responsibility for a particular area such as the Area Fitters. The casuals who are engaged as C10 mechanical trades are hired to carry out the tasks which is clearly written in the WO.”[44]
Mr Edwards disagrees with the proposition advanced by Mr Kakkar about Work Orders: they are generic and not detailed instructions and they do not confine the work of casual employees in the manner described by Mr Kakkar.[45]
After noting that the provisions of the current Appendix 7 were inserted at the time the predecessor of the current Agreement was made,[46] Simplot take the “Access” clause of the Appendix, in conjunction with provisions relating to the Employee Development Committee as setting out the procedure by which an employee can test their classification:
“17. Relevantly, titled ‘ACCESS’ on page 88 and 89, is an outline of the basis upon which employees at Ulverstone will have access to higher career classification levels. The criteria includes, amongst other things, the needs of the enterprise (6th bullet point on page 89).
18. An illustration of this is Ulverstone’s engineering and maintenance management deciding that C10 tradespersons may be required as additional short term labour to assist with shutdown projects and beyond that, nothing is required in terms of duties that fall outside of a C10. Or, the engagement of a casual C8 mechanical fitter with apprentice supervisory responsibilities engaged for a short term.
19. Also relevant to classifying casual maintenance employees at Ulverstone is the role of the Employee Development Committee (EDC) as outlined on pages 91 through to 93 of Appendix 7.
20. On pages 113 and 114 of Appendix 7 outline a list of principles for competency based classification which are applied with respect to maintenance employees. The EDC takes these principles in to consideration when it comes to classification issues.”[47]
In practice the only mechanism available to a casual employee who is dissatisfied about their classification is to access the Operations Training Framework mechanism set out in Appendix 7 of the Agreement.[48] Those procedures may include a role for the Ulverstone Employee Development Committee.[49] Ms Wilson’s written witness statement put forward that her experience was that requests for classification reviews, including those received under previous versions of the Agreement were dealt with under the provisions of Appendix 7 “which involves a review conducted by the Ulverstone EDC”.[50] Her oral evidence however acknowledged the default classification was simply a matter of course with no examination of the skills held or work performed by the employee and that a review through Appendix 7 was the only avenue for review available to an employee, giving these answers to Ms Presdee:
“If you bring in a casual to replace a permanent employee, what process do you follow for classifying that worker? We don’t reclassify them. Once somebody is employed, there’s a process in appendix 7 if they wish to have competencies assessed, if they’re looking for recognition of prior learning or they’re seeking a reclassification, which is the process that, say, for example, Darren Gale - when you referred earlier to, say, Darren Gale and Gary Edwards’ initial classification, they were C10s, they applied through a process and were reclassified.
But if you brought someone in as a casual to fill a four week replacement for a member of the permanent workforce who is on some form of leave, for example, whether they’re a new hire or on your list of preferred casuals, you would just say that’s a C10, they don’t need to - if they wanted to be reclassified, they would have to go through the process? Is that what - - -? That’s correct.
That’s correct? Ms Wilson, how long does a reclassification process take? I couldn’t tell you categorically. It is a cumbersome process.
So is it realistic that a person who is going to be engaged for four weeks starts a classification process that is not likely to be finished by the time their temporary work is over? I’m not sure it’s for me to determine whether it’s realistic. It is the process that we have in our enterprise agreement.”[51]
Ms Wilson conceded that such a review would take much longer than a four-week assignment for a casual employee. An assessment could possibly take months.[52]
What emerges from that evidence is that a casual maintenance employee is unilaterally classified at the C10 level by Simplot with no meaningful opportunity to seek reclassification according to the duties they are required to perform. Worse, the procedures Simplot have in place to permit a review of a person’s classification are sclerotic to the point of being meaningless for a person employed as a casual employee. The evidence does not support the proposition that any given casual employee is classified according to the actual duties they are required to perform, or that the site Employee Development Committee as referred to by Simplot has any capacity to review and decide upon the classification of any given employee. The evidence does not even support the proposition that the site Employee Development Committee is able to review the classification of casual employees in generality or that it has done so.
Despite what Simplot have to say about the operation of Appendix 7 and the capacity for an employee to use the “process in appendix 7 if they wish to have competencies assessed”[53] the argument is arid once account is taken of Ms Wilson’s full evidence. A casual employee could not realistically dispute their classification through the process she advances within the timeframe of their likely engagement.
Simplot’s current arrangements also give no regard to the provisions of the Agreement’s Clause 46 (Dispute Resolution) which plainly permits disputes involving “matters pertaining between the employee and the Company” to be raised and dealt with according to the procedures within that clause as much as those within Appendix 7.
The competency-based training process applicable to Ulverstone is set out in Appendix 7 in a section entitled “SIMPLOT ULVERSTONE IMPLEMENTATION PROCESS - EMPLOYEE DEVELOPMENT COMMITTEE Process for Implementing CBT and Achieving Formal Recognition of Competencies 20th December 2010”. The process sets out the agreed implementation steps to be taken, including appointment of a Registered Training Organisation (RTO) tasked with various responsibilities associated with identification of site-required competencies and deployment of associated training. Disputes about required competencies “will be referred to the EDC. The RTO will provide advice on any disputed competencies”. There is then a process for assessment of individual employees and resolution of problems that may emerge from these assessments:
“10) The RTO will assess employees using the required evidence and provide formal recognition and/or identify gaps in full competencies; identify gaps in competencies required for the employees current AQF Classification level; identify where employees are using competencies above their current Classification levels and in those cases, identify the gap to the next Classification level. This information will be provided to the EDC and each individual employee will receive a copy of their own results.
11) Any disputes or appeals will be initially dealt with through the EDC in accordance with the agreed process and if they are unable to be resolved will be dealt with through the normal industrial disputes mechanism as per the NCA and the Deed.” (underlining added)
Although the term “NCA” is not defined in the Agreement, the parties’ submissions indicate it is an abbreviation drawn from the Agreement’s full title, the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2021 – 2024. The term “Deed” is not defined in any of the material before me.
The context though of Clause 11 of the Ulverstone Implementation Process is that it immediately follows an agreed process for assessment of individual employees, rather than employees en masse. The parties agreed in Clause 10 of the Process first that the RTO will assess employees, undertaking the steps set out in the first sentence, which importantly calls upon identification of each case in which an employee is using competencies above their current classification and identification of the gap to the next classification level. The product of that work is then to be provided not only to the EDC, but importantly, “each individual employee will receive a copy of their own results”. The provision of information to each employee is not restricted to full-time or permanent employees, and there is no reason caused by the ordinary meaning of the words to read the provision down to being applicable only to full-time or permanent employees.
Clause 11 then follows, envisaging, both that there may be “disputes or appeals”, plainly about the matters set out earlier, and that if those disputes are unable to be resolved they “will be dealt with through the normal industrial disputes mechanism as per the NCA and the Deed”. There is no defined trigger for activation of the “normal industrial disputes mechanism”; merely that the “disputes are unable to be resolved”. There is also plainly no restriction of entitlement to the “normal industrial disputes mechanism” that would suggest the provision could not be accessed by casual employees as much as permanently engaged employees.
The phrase “normal industrial disputes mechanism” is to be accorded the ordinary and natural meaning of the words, taking into account the context in which the phrase is used. The context of the phrase within a Commission approved enterprise agreement is plainly a reference to the procedure set out in the Agreement’s Clause 46 (Dispute Resolution). That procedure envisages a stepped process with the precise steps to be taken dependent on whether the dispute is site-specific or national in nature:
“46. DISPUTE RESOLUTION
46.1 Procedure
Issues in dispute regarding the application of this Agreement; matters pertaining between the employee and the Company; matters pertaining between the Unions covered by this Agreement and the Company; and the National Employment Standards (as amended) will be resolved between the party or parties and their nominated representatives (which for employee(s) can include a nominated union delegate or official) in accordance with the following procedures:
Site-specific disputes
a) Where the dispute between the parties concern a matter(s) specific to a particular site, the party or parties with the grievance must:
i. in the first instance, wherever possible, raise the matter with the employee’s line manager at the Company’s premises at which the employee works;
ii. if the matter is not resolved, the relevant site management in a timely manner, at the Company’s premises, at which the employee works or where the dispute arises, will become involved;
iii. if the matter is not resolved at site level in a timely manner, then the matter:
1. must then be raised with the relevant national management, if applicable; or
2. may be referred to the FWC for conciliation and/or arbitration.
b) Where a matter that has progressed to the national level, in accordance with 46.1(a)(iii)(1), is not resolved at that level, the matter may then be referred to the FWC for conciliation and/or arbitration.
National disputes
Where the dispute between the party, or parties, concern national issues, the party, or parties, with the grievance must, in the first instance, raise the matter with the relevant national management. If the matter is not resolved at national level, then the matter may then be referred to FWC for conciliation and/or arbitration.
46.2 While the steps in Clause 46.1 are being pursued, the status quo, which is the situation existing immediately prior to the issue in dispute arising, will prevail. No party shall be prejudiced as to the final settlements by the continuance of work in accordance with this Agreement.
46.3 In the event of a party failing to observe these procedures, the other party may take such steps as are open to resolve the matter.
46.4 None of the steps described above takes away:
a) an employee’s right to have a Union delegate or official; or
b) a Union delegate’s right to have an official present as necessary at any stage of the dispute resolution procedure.”
There is nothing within the matter presently before me that would suggest the dispute is of a national character so accordingly the procedure set out for site-specific disputes applies. That procedure consists of three steps:
A requirement that the parties first “raise the matter with the employee’s line manager at the Company’s premises at which the employee works”;
Secondly in the event there is no resolution from the first step, a requirement that “the relevant site management in a timely manner, at the Company’s premises, at which the employee works or where the dispute arises, will become involved”; and
Lastly if still not resolved, the matter must be raised with the relevant national management if applicable or, alternatively, the matter may be referred to the Commission “for conciliation and/or arbitration”.
The product of these matters is to accept that while Appendix 7 sets out a competency-based training implementation process which provides a disputes or appeals process, that process is not confined to the steps or procedures set out in the Appendix. In fact, far from being confined, the Appendix itself allows a switch if a matter is unable to be resolved through the Appendix processes to the “normal industrial disputes mechanism”. Critically the second stage of Clause 46 requires the local site management to become involved in a timely manner, with the third stage being activated if “the matter is not resolved at site level in a timely manner”. The language of the second and third stages of the procedure for resolution of site-specific disputes (cl.46.1(a)(ii) and (iii)) plainly envisages resolution of disputes in a timely manner, with the initiator of the dispute being the one with the capacity to determine when a matter should be escalated further, and to where.
As observed previously the clauses of the Agreement relevant to the disposition of this dispute are set out above. Also as observed, determination of an employee’s classification requires application of Clause 17 (Classification Structure) and Appendix 7 (Operations Training Framework) as well as consideration of the provisions of Clause 14.3 (Casual employment) where the employee is casually engaged.
Clause 17 and Appendix 7 require the exercise of judgement about the work to be performed by an employee. The reference in Clause 14.3 to a casual employee being “paid a loading above the base rate” does not assist conclusion of the dispute since the clause does not address the question of the classification to be assigned to the work being performed.
Clause 17.3 provides that work will be performed within the classification structure, limited only by the three things mentioned in the clause; an employee’s competence to perform the work; that the work may be performed safely; and that the employee has time to carry out the work. Although Clause 17.3 is within a clause that sets out a process for review of the classification structure, the subclause sits somewhat separately to the rest of the clause, expressing not just things to be had regard to at some point in the future, but also expressing constraints relevant to the present time, using the phrase “work will be performed within the classification structure limited only by the following …”. The subclause may be viewed as expressing a mutual intention that each employee has a right to be classified according to their competence, capacity to safely perform work and that they have the time to carry out the work.
Appendix 7 identifies as part of its background paragraph that it is a document which “outlines the guiding policies and principles for Operations Training initiatives at all Simplot Australia Pty Limited plants for all our Award personnel. It provides a framework for the implementation of a competency-based classification structure for Metal Trades and Food Processing Operators.” The Appendix though is lengthy as well as comprising a mix of commitments about future reviews as well as setting out rights and obligations about current employment. For example, the Appendix establishes an annual review to be conducted through an Operations Training Group (see p.88) and establishes Site Employee Development Committees (p.90). However, it also stipulates the competency classification framework for each plant (p.94 (Food) and p.96 (Metals)) and “the positions required” (p.96 (Metals)). It contains an extensive section dealing with implementation of competency-based training, including at Ulverstone for food employees (pp.105 – 107). It also provides the disputes or appeal entitlement discussed earlier.
Further, the Appendix 7 Access clause provides that “[e]mployees will have access to higher career classification levels and training opportunities” based on certain nominated criteria, namely:
“Employee’s willingness to accept the level of accountability
Employee’s demonstrated commitment to site learning initiatives
Demonstrated competency
Using the competency
Experience
Needs of the enterprise”.
The section in Appendix 7 dealing with implementation of competency standards for Maintenance employees is comprehensive setting out a 7-stage consultative, audit and competency matching process, however the Appendix also includes the “Principles for Competency Based Classification” set out above, critically providing that “[n]ew employees will be classified in accordance with relevant competencies held and used as a requirement of their assigned position”. The term is not ambiguous or susceptible to more than one meaning and may be readily construed on the basis of the ordinary meaning of the words within the phrase: that is, there is a mutual commitment that new employees will be classified according to the competencies they hold and are required to utilise in the performance of their work.
A table within Appendix 7 entitled “Maintenance Personnel Classification Matrix” defines the “positions required in the Metals classification structure at each production centre”. There is nothing within the table which would suggest it is included merely for some conceptual purpose removed from the work of classifying an actual employee. Instead, the paragraph appearing after the table implies the contrary, that the table is to be used for the point-in-time classification of actual employees:
“Should a site employ a trades person at a classification higher than C5 then every effort should be made to ensure that these employees are appropriately qualified and will use the required competencies in the workplace. Paid rates for dual trade employees should be as defined in the Award for dual trade employees plus the site over award component.”
Reference was made by Simplot to an earlier decision of Commissioner Gregory which dealt with transition of Simplot’s food manufacturing employees to a competency-based classification arrangement.[54] There are limited insights of relevance to this matter to be obtained from the Commissioner’s 2013 decision. Those that do arise are in connection with the underpins of competency-based classification arrangements:
The AMWU “acknowledged that employees were only entitled to payment for competencies held if they were required to hold and use those competencies as a requirement of their position”;[55]
Simplot submitted that “the competency-based structure is subject to skills “held and used”, and does not create a right for employees to be recognised in respect of competencies not required for their particular job”;[56]
A witness for Simplot, its Human Resources Manager put forward “the Respondent’s view was that the classification structure and training programs are to be based on skills held and used by employees in the performance of their job, whereas the Applicant contends all employees are to be trained in the core competency units for Certificate II, regardless of whether those competencies are required in the performance of their jobs or not”.[57]
There is no inconsistency between these findings and those made by me in this decision.
From the foregoing, it is readily apparent that both the AMWU and Simplot are correct when they submit that an employee working under the Agreement is entitled to be classified at a level consistent with the needs of the enterprise; the employee’s demonstrated competencies; and the work they are required to perform.
Consideration of Appendix 7 as well as the text of the main body of the Agreement leads to the conclusion that any given individual’s pay will be a product of two variables; their actual competency level and the skills they are required to utilise in their work. Assessment of either variable may cause an employee to be classified lower than they may wish; or alternatively higher than Simplot may wish.
What is apparent from the evidence is that Simplot is not undertaking this analysis for each person it employs. Instead, it unilaterally and without reference to the actual duties being performed simply assigns the employee a C10 classification. Such would be appropriate only if it could be demonstrated that the work actually being undertaken after the C10 classification was assigned was no higher than C10.
Simplot can do this if it has the systems and procedures in place to ensure that the skills actually utilised rise no higher than the duties of a C10 tradesperson. But it does not have these things in place.
The evidence leads to the conclusion that Simplot have no real on-the-ground process to assess the duties required to be performed or actually performed and that it has no process by which an employee can question their classification and have it checked and resolved.
Such is not consistent with the requirements of the term in Appendix 7 that “[n]ew employees will be classified in accordance with relevant competencies held and used as a requirement of their assigned position” or that the competency based training implementation procedures both require individual assessment and gap analysis, with those procedures themselves entitling employees to raise “disputes or appeals”, including by switching those disputes to the Agreement’s “normal industrial disputes mechanism”.
Simplot though are able to rectify this situation by providing each casual employee with a detailed job description at the start of their engagement which unambiguously sets out the competencies required to be utilised, the duties they will be required to perform (or not perform) and how those duties are consistent with their assigned classification. No doubt there are other methods by which Simplot could demonstrate compliance with the Agreement’s requirements.
The text of the Agreement does not support the AMWU’s contention that resolution of a given employee’s classification requires consultation with the permanent employees who either work alongside the casual employees who are the subject of this dispute, or have aspects of their work backfilled by the casual employees. While it may be desirable that such occurs, there is no apparent mandate in the Agreement that it is required to be done. There is also nothing within the text of the Agreement that supports the claim attributed to Mr Wickham from a meeting with Simplot in May 2022 that “all casual tradespersons be classified at the C8 classification, irrespective of their qualification, experience or duties performed”.[58] The text of the Agreement instead provides that classifications are individually determined.
The text of the Agreement also does not support the proposition that those backfilling the work of a permanent employee have to be classified at the same level as the substantive employee. Perhaps an individual employee is so entitled, however, that will be a function entirely of the competencies held by the casual employee and the duties they are required to perform. It is foreseeable that in some cases at least that a casual employee may not perform all or sufficient of the duties of the person they replace to be entitled to the higher classification.
In view of the above reasoning, Question 2, which asks “how should casual maintenance workers at the Ulverstone site be classified?” should be answered as there being a requirement on Simplot’s part to classify each employee in accordance with the employee’s relevant competencies held and used as a requirement of their assigned position. Such classification requires an individual consideration.
As the Agreement is silent on the means by which this is to occur and it is plainly not occurring at present, the Commission recommends that each such employee be issued with documentation of the duties they will be required to perform and the competencies to be employed. The Commission also recommends that Simplot put in place a process by which a casual employee is able to question their assigned classification and so far as is reasonably practicable to have their question resolved within the term of their engagement.
CONCLUSION
For the reasons set out above the Questions for Determination are resolved as follows:
Q1:In accordance with Clause 17 and the terms of Appendix 7 of the AMWU CEPU and Simplot Australia Pty Limited Employee National Collective Agreement 2021 – 2024, (Agreement) is there a requirement to classify casual maintenance workers at the Ulverstone site at the C10 level and not otherwise?
A:No.
Q2: If the answer to Question (1) is “no”, how should casual maintenance workers at the Ulverstone site be classified?
A:Simplot is required to classify each employee in accordance with the employee’s relevant competencies held and used as a requirement of their assigned position. Such classification requires an individual consideration.
In order to facilitate compliance with this requirement the Commission RECOMMENDS that each such employee be issued with documentation of the duties they will be required to perform and the competencies to be employed.
The Commission also RECOMMENDS that Simplot put in place a process by which a casual employee is able to question their assigned classification and have their question resolved within the term of their engagement so far as is reasonably practicable.
In relation to the Commission’s recommendations, the parties are requested to advise the Commission and each other within 14 days of the date of this decision as to whether they accept each recommendation.
The dispute is resolved accordingly.
COMMISSIONER
Appearances:
Ms K. Presdee for the AMWU
Mr P. Borobokas for the Respondent
Hearing details:
Melbourne;
2 May (via Microsoft Teams);
2023.
[1] AE515439.
[2] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].
[3] Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019, [52].
[4] CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.
[5] SDA v Big W Discount Department Stores PR924554, [23].
[6] Fair Work Act 2009, s.595.
[7] The section requires the Commission not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.
[8] MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97, [31] - [32].
[9] [2018] FCAFC 131, [197], (2018) 280 IR 191, [197].
[10] [2017] FWCFB 3005, [114]; see also United Firefighters Union of Australia v Emergency Services Telecommunications Authority[2017] FWCFB 4537, [35].
[11] AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2021-2024 (AE515439), Clause 46.
[12] Ibid, pp.113 – 114.
[13] Exhibit A5, Applicant Outline of Submissions, 10 February 2023, [2]; Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [19].
[14] Exhibit A5, Applicant Outline of Submissions, 10 February 2023, [3].
[15] Exhibit A5, Applicant Outline of Submissions, 10 February 2023, [7]; Exhibit A3, Witness Statement of Gary Edwards, 10 February 2023, [2].
[16] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [22].
[17] Exhibit A5, Applicant Outline of Submissions, 10 February 2023, [9].
[18] Ibid, [1], [9].
[19] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [7] – [8].
[20] Ibid, [23].
[21] AG812819, Print PR912894.
[22] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [29].
[23] Ibid, [31] – [32].
[24] Ibid.
[25] Ibid, [45] – [46].
[26] Ibid, [48].
[27] Ibid, [49] – [50].
[28] Ibid, [53] – [57].
[29] Exhibit A5, Applicant Outline of Submissions, 10 February 2023, [6].
[30] Ibid, [29] – [30].
[31] Ibid, [14] – [16].
[32] Ibid, [18] – [19].
[33] Ibid, [20].
[34] [2016] FWCFB 8747, [11].
[35] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [54] – [55].
[36] Ibid, [61] – [66].
[37] Ibid, [68].
[38] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [37], with reference to AMWU v Simplot Australia[2013] FWC 3288.
[39] Exhibit A3, Witness Statement of Gary Edwards, 10 February 2023, [14].
[40] Exhibit A4, Witness Statement in reply of Gary Edwards, 10 March 2023, [10].
[41] Transcript, PN 348 – 352.
[42] Transcript, PN 249.
[43] Exhibit R1, Witness Statement of Vishal Kakkar, undated, [17].
[44] Ibid, [18] – [19].
[45] Exhibit A4, Witness Statement in reply of Gary Edwards, 10 March 2023, [3].
[46] Exhibit R3, Witness Statement of Bryan Tuit, undated, [7]; Exhibit R2, Witness Statement of Sandra Wilson, undated, [8].
[47] Exhibit R2, Witness Statement of Sandra Wilson, undated, [17] – [20].
[48] Exhibit R3, Witness Statement of Bryan Tuit, undated, [8].
[49] Exhibit R2, Witness Statement of Sandra Wilson, undated, [19].
[50] Ibid, [26].
[51] Transcript, PN 353 – 356.
[52] Transcript, PN 357 – 368.
[53] Transcript, PN 353.
[54] AMWU v Simplot Australia[2013] FWC 3288.
[55] Ibid, [25].
[56] Ibid, [29].
[57] Ibid, [36].
[58] Exhibit R4, Respondent Outline of Submissions, 3 March 2023, [23].
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