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

[2015] FWC 5594

[2015] FWC 5594

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

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
(C2015/4087)

Tasmania
COMMISSIONER LEE	MELBOURNE, 14 AUGUST 2015

Alleged dispute concerning interpretation of Appendix 8 Maintenance and Engineering Contractor and Labour Hire Arrangements.

[1] On 27 May 2015, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure contain in the AMWU, CEPU and Simplot Australia Pty. Limited National Collective Agreement 2014-2017 1(the Agreement). The Agreement commenced operation on 5 February 2015. While the Agreement applies to a number of sites, this particular dispute relates to the Simplot Australia Pty Ltd (the Respondent) Ulverstone processing plant in Tasmania. I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement and is a party to the dispute.

[2] In the application, it was stated;

“The dispute is about the interpretation of Appendix 8 Maintenance and Engineering Contractor and Labour Hire Arrangements (Appendix 8). A number of separate issues arise out of the interpretation of these clauses.”

[3] Particular definitional disputes were referred to including the definition of “production line”; “large” as it applies to maintenance work and “infrequent” as it applies to shut down maintenance work. There is also a dispute over the distinction between “core” and “non-core” work.

[4] I note that there was also a dispute over the application of the status quo provision. However, as a result of an undertaking provided by the Respondent in this matter it is no longer necessary to deal with that aspect of the dispute.

[5] Appendix 8 of the Agreement allows for contractors to be engaged for maintenance and engineering work in certain circumstances and not in others. Appendix 8 also requires that contractors, when they are permitted to be engaged under the terms of Appendix 8, are in certain circumstances to, “…receive wages and conditions in accordance with or that are no less favourable than this Agreement”.

[6] This dispute was triggered by the Respondents’ actions earlier this year to engage external personnel to perform certain maintenance work at Ulverstone and to not engage those external personnel on wages and conditions no less favourable than the Agreement. In doing so, the Respondent argues that they are complying with the terms of the Agreement. The Applicant argues that they are not. This is the central element of the dispute.

[7] There has been an attempt over the course of a number of conferences before me to agree on a question or questions that, when answered, would resolve the dispute. Despite the best efforts of the parties those attempts have been unsuccessful. Part of the difficulty is driven by both parties desire to resolve not just this dispute but also possible future disputes over the application of the clause. That is a desirable objective, but there are limits to the extent that can be achieved, in the context of settling the current dispute.

[8] Having considered the matter, I have determined that the question to be answered to resolve the dispute as currently framed is as follows:

“Since 5 February 2015 maintenance work on production line equipment has been carried out by external personnel at the Simplot Australia Pty Ltd Ulverstone site.

Does the application of Appendix 8 of the Agreement compel the Respondent to pay those external personnel wages and conditions in accordance with or that are no less favourable than the Agreement for that work?

[9] The directions set for the filing of material below reflects the consent position of the parties.

[10] I note that as part of my consideration of the terms of Appendix 8, a question arises as to whether some of the provisions are permitted matters within the meaning of the Fair Work Act 2009. I expect that the parties will make submissions on that question.

[11] I direct as follows;

1. The Unions are to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions and any witness statements and other documentary material the Unions intend to rely on by no later than 5:00pm Friday 25 September 2015.

2. The Respondent is to file with the Fair Work Commission, and serve on the Unions, an outline of submissions and any witness statements and other documentary material the Respondent intends to rely on by no later than 5:00pm Friday 6 November 2015.

3. The Unions are to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions and any witness statements and other documentary material the Unions intend to rely on in reply by no later than 12:00pm 20 November 2015.

[12] The matter will be listed for hearing before me on 30 November, 1, 2 and 3 December 2015. A notice of listing will be sent to all parties shortly.

[13] Any inquiries relating to these Directions are to be directed my Associate on [phone], email: [e-mail], facsimile: [phone].

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