“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Ltd
[2013] FWC 3287
•16 JULY 2013
[2013] FWC 3287 |
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
(C2012/6651)
COMMISSIONER GREGORY | MELBOURNE, 16 JULY 2013 |
Alleged dispute concerning the appointment of a Registered Training Organisation.
Introduction
[1] This matter concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Applicant) to deal with a dispute in accordance with s.739 of the Fair Work Act 2009 (the Act). The Respondent is Simplot Australia Pty Ltd (the Respondent) and the matter concerns its Simplot Harvesters site at East Devonport in Tasmania. The parties are covered by the AMWU and Simplot Australia Pty Ltd and National Collective Agreement 2011–2014 1 (the Agreement), which applies at five sites operated by the Respondent, including the site at East Devonport. The dispute concerns Appendix 6 of the Agreement entitled “Operations Training Framework” and, in particular, provisions in the Appendix dealing with the implementation of competency based training for maintenance personnel at the East Devonport site. Mr T. McCauley from the AMWU appeared on behalf of the Applicant. Mr D McLaughlin of M and K Lawyers was granted leave to appear on behalf of the Respondent, pursuant to s.596(2)(a), on the basis that the matter involved a degree of complexity and his involvement would enable it to be dealt with more effectively.
The issue to be decided
[2] As indicated, the issues in dispute arise in the context of the Appendix 6 of the Agreement entitled “Operations Training Framework”. Page 20 of the Appendix (or page 102 of the complete Agreement) is headed “Maintenance Personnel” and under that heading it states:
“The following process is as outlined in National Metal and Engineering Competency Standard Implementation Guide, Chapter 4 Implementing the Competency Standards. However it has been further expanded to provide greater detail in some critical areas. For example; stages 3, 4 and 5 below occur within stage 3 of the Guide. A Site Implementation Committee for the maintenance area should be established to oversee this process with the assistance of MISTAS or any other agreed RTO where necessary.” 2
It then continues to set out a seven step process.
[3] The Applicant submits that these provisions in the Appendix require the Respondent to engage the Manufacturing Industry Skills, Training and Assessment Service (MISTAS) to assist the Site Implementation Committee for the maintenance area to implement the competency standards, unless it has been agreed that another Registered Training Organisation (RTO) be engaged instead. The Respondent disagrees. It submits another RTO, the Skills Institute Tasmania, was already engaged to assist in this task at the time the Agreement was made and was performing those functions with the agreement of “all concerned at the site.” In these circumstances it submits there is no requirement to now engage MISTAS.
[4] The issue to be determined accordingly centres on what the relevant provisions in the Appendix to the Agreement now require of the parties and, in particular, whether they require MISTAS to be engaged.
The Evidence and Submissions
[5] The Applicant notes that Appendix 6 states at the outset under the heading “Background”:
“The following document outlines the guiding policies and principles for Operations Training initiatives at all Simplot Australia Pty Ltd 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. It incorporates nationally recognised and accredited competencies of the Metal and Engineering industry and other qualifications including the Certificate in Food Processing.” 3
[6] It also highlights in its submission the extract from the Appendix under the heading “Maintenance Personnel” that has already been referred to.
[7] Mr John Short is the Tasmanian State Secretary of the AMWU. On 15 August 2012 he wrote to Ms Donna James, the Respondent’s Human Resources Manager with responsibility for the East Devonport site, seeking implementation of the process provided for in Appendix 6. The letter included the following statement:
“To allow progress on this matter we would formally ask that MISTAS be engaged to attend the site and provide a briefing to the workforce, explaining the process that is to be undertaken prior to the formal consultation proposed at step one, Page 102 of the National framework agreement.” 4
[8] He indicated that a letter in the following terms, dated 28 September 2012, was subsequently received from Ms James:
- The Skills Institute are currently working with the employees at the Harvesters site under contract completing qualifications
- The Skills Institute have been working with Harvester employees for up to 10 years
- The Skills Institute have thorough knowledge of the work that is done by the employees at the Harvesters site
- The Skills Institute is also working with the employees at the Devonport site
“I refer to your letter of 7th September 2012 regarding competency based classifications for the maintenance personnel at the Simplot Harvesters, East Devonport site.
With regard to the employees at the Harvesters site currently six employees are completing a qualification through the Skills Institute Tasmania. We are happy to continue with the process outlined in the AMWU and Simplot Australia Proprietary Limited National Collective Agreement 2011-2014 and as indicated on page 102, we would proceed with the Skills Institute Tasmania.
This decision is based on the following:
Consequently, we do not agree with your request to engage the Manufacturing Industry Skills, Training and Assessment Service (MISTAS) to attend the site based on the above process already occurring.
This would be an additional cost to the company that is not necessary as outlined above.” 5
[9] Mr Short said he replied to that letter on 24 October 2012 indicating in part:
“I have consulted with the workers at the site and it is my view that they do not agree with the use of the Skills Institute Tasmania and they are calling for the Company to abide by the agreement and engage MISTAS to assist with this process.” 6
[10] Mr Short also consulted with the employees involved and later obtained a signed petition from eight employees indicating that none agreed to use the Skills Institute of Tasmania in place of MISTAS. He also said he had been advised by the maintenance employees at the East Devonport site that their skills had not been assessed, and no assessment or formal training had been done for at least 10 years. In addition, no employee was aware of any agreement to use an RTO, other than MISTAS, as part of the process involved.
[11] Mr Short indicated in cross-examination that the petition signed by the employees had not yet been provided to the Respondent, but had been prepared in order to confirm the employees’ views. He had also been told by Ms James that the Tasmania Skills Institute had been involved at the site for several years. He also indicated that whilst all employees who have completed their qualifications are classified at the C10 level that did not mean that classification was appropriate for them as they may not have been assessed for skills held previously. He said MISTAS had been selected because it was only one of:
“...on my understanding, eight or nine organisations or individuals that can provide the training in the assessment process through Manufacturing Skills Australia...” 7
[12] He indicated in re-examination he had no problem with the Tasmanian Skills Institute providing any required training to employees but “...MISTAS was appointed to train people and be involved with the assessment process for all the workers, which is a different process.” 8
[13] Mr Patrick Walker has been employed at Simplot Harvesters for approximately 15 years as a maintenance fitter. He indicated the competencies involved in his trade and the work he carries out has changed over time and should be the subject of further assessment. He sought the involvement of MISTAS in this process.
[14] In the Applicant's submission the plain words contained in the Appendix do not provide for any other RTO to be engaged, other than MISTAS, in the absence of agreement between the parties. It is not open to the Respondent to simply indicate it has had a change of view and no longer wishes to engage MISTAS.
[15] In its submission the disputed provisions are clear in their drafting and the Respondent has acted contrary to the plain interpretation of those provisions. It submits there are two conditions to be met before an RTO, other than MISTAS, can be engaged. Firstly, there must be agreement about the engagement of another RTO and, secondly, the engagement of that other organisation must be necessary. In its submission neither of these conditions has been met. It also rejects the submission that nothing further is required to be done at this time, noting that a Site Implementation Committee has not been established in accordance with the Agreement, and it is not clear whether the competencies held by the relevant employees have been properly assessed. It also indicated in its closing submissions it was not seeking to have MISTAS appointed to carry out a role that extended beyond that provided for in the Agreement, but it should be allowed to carry out the specific role given to it.
[16] The Applicant also made reference to the decision of a Full Bench of Fair Work Australia in Cape Australia Holdings Pty Ltd T/A Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union 9 (Cape Australia Holdings) in support of its submission about the principles that should apply to the interpretation of enterprise agreements. The Full Bench stated, in particular:
“[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:
‘[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).’
[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU
‘Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.’
[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:
‘It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.” 10
[17] The Respondent submits that the Tasmanian Skills Institute had already been engaged to perform the tasks set out in the Appendix and was performing those tasks at the time the Agreement was made.
[18] Ms Donna James is the Respondent’s Human Resources Manager and is based at the Ulverstone site. She is responsible for the implementation of competency based structures and training at three Simplot sites in Tasmania, including the Harvesters site at East Devonport. She commenced working with Simplot in 2008 and said the Tasmanian Skills Institute was the Registered Training Organisation for the Harvesters site at that time. She said as far as Simplot was concerned competency based structures had been implemented for maintenance employees at the site and the only requirement now was to provide any ongoing training required.
[19] She also indicated she was not aware of any petition signed by the employees requesting MISTAS to be used as the registered training provider. She also noted the documents attached to Mr Short’s witness statement appeared to indicate that even if MISTAS were engaged to identify any gaps in training it would, in any case, use local training providers to carry out that training. Given the work already done she did not believe any training gaps existed and therefore could see no requirement to engage MISTAS. She was not aware of any concerns Patrick Walker had about the assessment of his competency.
[20] She said in cross-examination she was aware the Applicant wanted MISTAS to be the RTO at the Harvesters site and that a Site Implementation Committee had not been established at the site. She was also not aware whether the Tasmanian Skills Institute had been approved by Manufacturing Skills Australia to provide assessment and training for maintenance employees.
[21] The Respondent also indicated it was concerned about the additional costs associated with the engagement of MISTAS but, if it was to be appointed, its role should be confined to that assigned to it by the Agreement.
Consideration
[22] There is no contest between the parties as to the approach to be taken to interpreting an agreement and the relevant authorities are well known and well established. The Applicant referred to the Full Bench decision in Cape Australia Holdings, which makes reference to the decision of the French J. in City of Wanneroo v Holmes 11, where His Honour observed that in interpreting industrial instruments the starting point should be a consideration of the natural and ordinary meaning of the words used. I have adopted the approach of these authorities in considering the terms of the agreement under consideration in this matter.
[23] I am satisfied the words in Appendix 6 under consideration in the present matter have a plain and ordinary meaning and should be interpreted in this way. They provide that MISTAS be engaged to assist the work of the Site Implementation Committee, where necessary, unless there is agreement about the engagement of another RTO.
[24] The Respondent’s evidence indicated a genuinely held belief as to why MISTAS has not been engaged. Another RTO was already working with employees at the site at the time the current agreement was made. The Respondent was also not aware of existing gaps in the competency based assessment of employees at the site and was concerned about the costs associated with engaging MISTAS. The Applicant clearly takes issue in response with the question of whether competency based assessments, in the terms proposed by the Appendix to the Agreement, have been carried out and concluded with the maintenance employees at the Harvesters site.
[25] However, the Respondent’s views about the appropriate course of action are not the paramount consideration in the determination of this matter, in the face of an Agreement that imposes various obligations and entitlements on the parties. As indicated, I am satisfied the relevant provisions in Appendix 6 have a plain and ordinary meaning and should be given that meaning and applied in that way. Those provisions require that a Site Implementation Committee for the maintenance area be established at the site at East Devonport to oversee the process of implementing competency standards with the assistance of MISTAS or any other agreed RTO, where necessary. The evidence establishes there is clearly no agreement about the engagement of another RTO, other than MISTAS, to assist the work of the implementation committee. Therefore I am satisfied MISTAS should be engaged to provide that assistance given the disparate views of the parties about whether an appropriate competency based assessment process of the maintenance employees at the site has been carried out and concluded.
[26] It is noted in conclusion that the Applicant’s submissions and evidence indicated that it does not seek to extend the role of MISTAS beyond that provided for under the agreement, and it does not, in turn, object to any subsequent training that may be required being provided by another RTO, if necessary.
COMMISSIONER
Appearances:
J. Short, with S. Wilson, S. Creed, S. Little for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
D. McLaughlin with J. Snow and L. Gheller for Simplot Australia Pty Ltd.
Hearing details:
2013.
Launceston:
Final written submissions:
1 AE887944.
2 Ibid at Appendix 6.
3 Ibid.
4 Exhibit AMWU1 at Attachment A.
5 Ibid at Attachment B.
6 Ibid at Attachment C.
7 Transcript PN186.
8 Transcript PN 196.
9 [2012] FWAFB 3994.
10 Ibid at paragraphs [7] - [9].
11 (1989) 30 IR 362 at 378-379.
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