“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v The Trustee for Regal Cream Products Trust T/A Regal Cream Products Pty Ltd
[2023] FWC 1558
•28 JUNE 2023
| [2023] FWC 1558 |
| 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
The Trustee for Regal Cream Products Trust T/A Regal Cream Products Pty Ltd
(C2022/7285)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 28 JUNE 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – entitlement to allowance for attending refrigeration compressors
Introduction
The AMWU has referred a dispute concerning the entitlement to an allowance for attending to refrigeration compressors under the Bulla Dairy Foods Colac Maintenance Enterprise Agreement 2021-2023 (the Agreement).
The parties disagree about when the allowance is payable. Broadly speaking, the AMWU contends that all maintenance employees are entitled to the allowance whenever they attend to refrigeration compressors to perform maintenance work. The Trustee for Regal Cream Products Trust (the Respondent) contends that the allowance is payable in more limited circumstances, namely where the work is invasive.
The parties agree that the Commission can arbitrate the dispute under the Grievance Procedure, and that the dispute would be resolved by answering the following questions:
(a)In clause 22.1.9 of the Agreement what does “attending to” mean in relation to payment of the allowance?
(b)In what circumstances is the allowance in clause 22.1.9 payable, based on custom and practice related to the operation of that clause?
(c)Should “maintenance person” be read to mean “fireperson/s” based on bargaining and/or custom and practice associated with this clause?
(d)In clause 22.1.9 of the Agreement if “maintenance person” is to be read to mean something other than a “fireperson” what does “maintenance person” in the clause refer to?
oDoes it mean a person actually performing “maintenance” work on refrigeration compressors?
oWhat classification of “maintenance person” should such allowance be paid to – in particular is it payable to employees at or above C10?
The AMWU sought the determination of a further question:
(e)Does the term “attending to refrigeration compressors” in clause 22.1.9 of the Agreement refer to;
i.a single person, or
ii.maintenance people who perform work on refrigeration compressors in a given week?
Factual Context, Relevant Agreement and Award Provisions
The Respondent manufactures ice cream and dairy products at 4 sites in Victoria, and the Agreement applies to maintenance employees at one of these sites, at Colac.
Clause 22 of the Agreement provides for an entitlement to several allowances which “replace and override any other allowance prescribed in any Modern Award”. One of these allowances is subclause 22.1.9 which reads:
22.1.9 Maintenance Person Attending to Refrigeration Compressors
A maintenance person attending to refrigeration compressors shall be paid the following additional amounts per week:
(a)From first pay period after 1 July 2021, $42.02 per week.
(b)From first pay period after 1 July 2022, $43.66 per week.
Maintenance employees are defined in clause 4.2 as employees whose occupation falls within the classifications of the Award, including but not limited to an employee engaged as an electrician, fitter and turner, boilermaker, fabricator, refrigeration or mechanic.
The Agreement incorporates all the provisions of the Manufacturing and Associated Industries and Occupations Award 2020 (the 2020 Award). The Agreement takes precedence over the 2020 Award to the extent of any inconsistency with it.
In negotiations for the Agreement, the AMWU sought and secured the Respondent’s agreement to a separate agreement for maintenance employees. The previous agreement, the Bulla Dairy Foods Colac Operations Enterprise Agreement 2017-2020 (2017 Agreement) covered both production and maintenance employees.
The 2017 Agreement incorporated the Metal Industry (Engine Drivers and Firemans) Award 1984 which included a provision at subclause 23.3.6 that “A fireperson attending to refrigeration compressors shall be paid the following additional amounts per week:
(a) From first pay period after 1 July 2020, $40.44 per week.”
‘Fireperson’ was not defined in the 2017 Agreement.
The 2020 Award contains an equivalent allowance, payable to a ‘boiler attendant, an engine driver or fireperson’.
Evidence
Three maintenance employees of the Respondent gave evidence for the AMWU. Mr David Taranto is a maintenance fitter, and he gave evidence that he often has to attend and intervene on the refrigeration compressors and has never received the allowance for this work. He describes an incident on 9 February 2023 where oil was found leaking from a compressor, and where he and another fitter entered the compressor room, shut down the compressor, closed valves, made the compressor safe and then implemented the spill protocol. The two fitters and Mr Robinson, a refrigeration mechanic, dealt with the leak, none of whom received the allowance. Ammonia fumes were leaking out during the incident. Mr Taranto said there is an element of risk every time a maintenance person attends a compressor whether for a routine inspection, fault reset or plant failure as all compressor rooms have liquid ammonia oil in them.[1] Mr Jason Langdon, a maintenance fitter, gave evidence that the work of maintenance fitters includes frequently attending to compressor faults which involves diagnosing and rectifying the problem. In recent months there have been some major issues including a major ammonia leak and a pump seal leak. He has never received the allowance for attending to refrigeration compressors, and to his knowledge no one in the maintenance team receives it.[2] Mr Dale Robertson gave evidence that on 16 January 2023 there was an ammonia leak triggering a site evacuation. He turned off the compressors and with the assistance of a refrigeration mechanic, isolated the leak about 5 hours after it was detected. [3] In cross-examination, Mr Taranto and Mr Langdon agreed that incidents such as these are not common, and most of the maintenance work they undertake on the refrigeration compressors involves assessing and monitoring compressors using a computerised interface, investigating and ‘figuring out what’s going wrong’ and does not generally involve having to pull apart the compressor. Mr Robertson was not required for cross-examination.
Two witnesses gave evidence on behalf of the Respondent. The first was Mr Dayne Pickering, Site Lead at Colac. The maintenance employees report to Mr Pickering. Mr Pickering’s evidence was that maintenance fitters and electricians generally perform what it describes as ‘non-invasive’ work on the refrigeration compressors and that their duties have not changed under the new Agreement. The daily ‘non-invasive’ tasks include minor plant checks, a monthly restart of the compressors, daily checks for oil leaks and faults, and that this work is safe, non-invasive computerised work. The Respondent employs one refrigeration mechanic who performs more intrusive or invasive work, and this person is entitled to the allowance. The Respondent contracts a third party to perform ‘almost all intrusive or invasive work on the compressors.’ Mr Pickering said that the work relating to the ammonia leak in Messrs Langdon, Taranto and Robertson’s evidence was rare, but would be considered ‘invasive work’.[4] In cross-examination, Mr Pickering said that the term ‘non-invasive’ work did not come from either the Agreement or the position descriptions of maintenance employees but came from his own interpretation which was to mean regular and routine checks that did not require physical interference with the compressor.
The second witness for the Respondent was Ms Lucy Dare, People Partner at the Colac site. Ms Dare’s evidence included describing the bargaining negotiations for the Agreement, relevantly that the replacement of the word “fire person” with “maintenance person” in clause 22.1.9 was made at the request of the AMWU at a very late stage and that the Respondent agreed to the change because it understood it to be an inconsequential change with no monetary consequence. Ms Dare provided an email from the AMWU requesting the change to clause 22.1.9 and six other clauses in the draft agreement. The AMWU’s request included no explanation for the requested change to that clause, and the Respondent’s reply email simply noted that the amendment to the clause was agreed to. Ms Dare’s evidence was also that the allowance had not ‘generally’ been paid by the Respondent and that it has not been paid to any person, including either the refrigeration mechanic or the maintenance employees involved in the critical incident ammonia leaks described by the AMWU witnesses and that she did not know why this was.[5]
Submissions
The AMWU submits that all maintenance employees as defined in clause 4.2 are entitled to the allowance, subject to them ‘attending to refrigeration compressors’ in any given week. It submits that “attending to” should be given its ordinary meaning, being a broad term that encompasses the work of maintenance employees such as fixing breakdowns or faults and conducting checks and monitoring equipment.[6]
In support, the AMWU says that:
(a)the Agreement is entirely different to the 2017 Agreement which included the production workforce whereas the Agreement only applies to maintenance employees;
(b)while the 2017 Agreement had a corresponding entitlement in clause 23.3.6, that entitlement was payable to firepersons and not maintenance employees;
(c)as the allowance payable to maintenance employees is entirely new, there is no role for an examination of custom and practice, and any attempt to do so is essentially seeking to re-write the Agreement so that ‘maintenance worker’ is changed to ‘fireperson’; and
(d)there is no reason to look beyond the clear definition provided in the Agreement.
The Respondent submits that:
(a)the words ‘attending the refrigeration compressors’ should be given a narrower construction, namely that it only applies to those employees performing intrusive or invasive work on the compressors, and that the allowance is not intended to apply to employees who perform simple tasks such as checking the compressor’s levels on computer screens;
(b)that this construction is consistent with the ordinary meaning of the word “attending” and the industrial history of the provision; and
(c)that the resolution of this question resolves the dispute, without the need to determine the remaining agreed questions.[7]
The Respondent acknowledges that the refrigeration mechanic is entitled to receive the allowance as are maintenance employees who perform invasive work such as the work concerning the ammonia leak described by the AMWU witnesses set out above, although this has not actually been paid.[8]
The Respondent contends that the allowance is not an ‘all purpose’ allowance, but an extra payment intended to compensate for work that is ‘out of the ordinary’, ‘unpleasant’ or ‘hazardous’. Having regard to its ordinary meaning, ‘to apply oneself to; to take care or charge of’, something more than passive engagement such as observing levels on a computer screen is required to attract the allowance.
The Respondent submits that there is nothing in the 2020 Award or the history of the allowance that suggests it is payable for passive or simple tasks. Originating from the Metal Engineering and Associated Industries Award 1998 (the 1998 Award) the allowance was payable only to an ‘engine driver’ or ‘fireperson’, and not paid to all maintenance workers. The definition of those two classifications identified that the allowance was payable under the 1998 Award to persons with specialised skills capable of performing specialised and substantive work, and not payable for minor matters.
Finally, the Respondent submits that during the negotiations for the Agreement, the change to the application of the allowance was never discussed and that the Respondent accepted the proposed change from “fireperson” to “maintenance person” in good faith as it believed it would have no impact on the application of the Agreement nor any monetary consequence. There has been no change in the work performed by maintenance employees under the altered language of clause 22.1.9. Further, relying on the following passage in Glover v Tip Top Bakeries,[9] it submits that reliance on the way a provision has been applied in predecessor industrial instruments is relevant to the construction.
“ ... where a provision has appeared in an award or succession of awards for a lengthy period of time and been acted upon without challenge by parties in a certain manner, then if the award is reasonably capable of bearing such a meaning the court ought, in the normal course, to adopt it as its proper meaning (O’Donnell v Walter Buchanan Ltd [1947] NZLR 906 at 910). In the course of this case Fair J accepted the dictum contained in the earlier decision of Butler v Lepperton Co-operative Dairy Factory Co Ltd [1946] NZLR 434 to the effect that – ‘It has been held repeatedly by this court that if a custom is proved which is not necessarily inconsistent with an award, such award may be treated as having tacitly sanctioned the custom, and should be interpreted in the light of the custom...”
Principles in construction of an enterprise agreement
The principles to be applied in construing an enterprise agreement are settled. As set out by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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 (references omitted).
In AMWU v Berri Pty Ltd[10]a Full Bench of the Commission relevantly held that:
…
2.The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3.The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
…..
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstances will be admissible to aide the interpretation of the agreement.
…
Further, as the Full Court in King v Melbourne Vicentre Swimming Club Inc[11] said in the context of construing an award:
The circumstances may lead the court to conclude that a clause in an award is a product of history; in such circumstances it may be possible to discern the purpose of the award only by reference to its history. But there are limits to that; as the primary judge said in the present case (at PJ [128]‑[129]), the texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non-compliance with an award can expose a person to pecuniary penalties. (references omitted)
The same observation is also apposite to the construction of an enterprise agreement, where the employees covered by the agreement should be able to understand it from the language of the agreement, without knowing the industrial history of a term.
The observation of the Full Court in Target Australia Pty Ltd v SDAEA[12] is also instructive:
Further, even if the exercise of construing an enterprise agreement was far more like construing the meaning of a statute, a mere inconvenience or the mere existence of tension as between entitlements would not displace the ordinary or natural meaning of the text. In the absence of an absurdity, or at least a very seriously anomalous result, a departure from the plain text of the enterprise agreement would not be justified (references omitted).
Consideration
The starting point is to ascertain whether the Agreement has a plain meaning. Clause 22.1.9 relevantly reads “A maintenance person attending to refrigeration compressors shall be paid ….”. The language has a plain meaning. A ‘maintenance person’ means a ‘maintenance employee’ as defined in clause 4.2 set out above. The Respondent does not contend otherwise.
The phrase “attending to refrigeration compressors” also has a plain meaning. The Macquarie Dictionary[13] defines “attend to” as:
(a)to apply oneself to: to attend to one's work.
(b)to take care or charge of: to attend to a task.
“Attending”, the present participle of the verb “attend”, has the identical meaning. And ‘applying means “putting to use; devoting to some specific purpose”.
The ordinary meaning of ‘attending to’ does not connote any particular level of application, complexity or invasiveness of the attendance involved. “A maintenance person attending to refrigeration compressors ….” covers the performance of work on a refrigeration compressor, whether invasive or not. When maintenance workers perform work on a refrigeration compressor, they are attending to it; they are applying themselves to and taking care of the task they are required to perform. That is so, whether or not the task they are responsible for is routine and ‘non-invasive’ such as the tasks described by Mr Pickering of performing required checks to ensure that compressors are working and operating at appropriate temperatures, monthly ‘power flicks’ to restore and restart the compressors, visual diagnostics required for oil leaks and faults and confirming whether there are high levels of ammonia in the accumulator.
The clause has a plain meaning and is not ambiguous. Evidence of the surrounding circumstances is accordingly not able to contradict the plain language of the Agreement. In my view, a reasonable person (including employees who voted to approve the Agreement) in reading the language the parties have used in clause 22.1.9, would understand it to mean undertaking maintenance work on the refrigeration compressor that they are required to perform, whether invasive or not.
In any event, the surrounding circumstances do not provide a basis for the narrow construction that the Respondent contends for, namely that the allowance is only payable to maintenance workers who undertake invasive work on refrigeration compressors.
As the AMWU submitted, the clause is new, and differs from the refrigeration compressor allowance payable under its predecessor. Under the 2017 Agreement, the allowance was payable only to a fireperson, not to all maintenance employees, as defined. As (other) maintenance workers were not firepersons, they were not entitled to the allowance when they attended to a refrigeration compressor. The Respondent’s submission that reliance on the way a provision has been applied in predecessor industrial instruments is relevant to the construction of the clause, does not assist.
In any event, whilst under the 2017 Agreement and the underpinning award/s from which the allowance derives, only firepersons and engine drivers were entitled to the allowance. That is because they were identified as the only employees entitled to it. The entitlement arose not because the work they performed was invasive such that they were only ‘attending to’ refrigeration compressors when performing work of that kind, but because they were the only classification of employees specified to be entitled to it.
The Respondent submits that there is nothing in the Award or the history of the allowance that suggests it is payable for simple or passive tasks. The allowance appears to have originated from the 1998 Award, which provided at clause 9.4.1 that:
“An engine Driver or fireperson engaged as specified below shall be paid the following additional amounts per week:
(a) attending to refrigerating compressors $26.80
(b) attending to electric generator or dynamo exceeding 10kW capacity $26.80
(c) in charge of plant (other than at Gordon Edgell Pty Ltd and
International Canners Pty Ltd $26.80”
……
An ‘engine driver’ was defined as: “… any person who operates or drives any engine or engines …. and includes any person who is called upon … to do Engine Driver’s work other than simply stopping or starting an engine under the supervision of an Engine Driver. A ‘fireperson’ was the equivalent of a ‘boiler attendant’ and classified in different ways depending on whether they were the sole employee in charge of a particular piece of plant.[14]
The Respondent submits that these classification definitions establish that it was not an allowance payable for minor matters but paid to persons who possessed specialised skills capable of performing specialised and substantive work. The definitions suggest that the work performed by a fireperson/boiler attendant and engine driver under the 1998 Award (and current underpinning Award) was not the same work as at least some of the ‘non-invasive’ work undertaken by maintenance employees under the Agreement. However, that does not mean that the language in clause 22.1.9 is ambiguous or uncertain. It ignores the agreed change in the language from ‘fireperson’ to ‘maintenance person’ in the Agreement. The work undertaken by maintenance employees in relation to refrigeration compressors is undoubtedly specialised and substantive work, in the sense of being necessary to ensure functioning of the compressors.
The Respondent’s submission that there is nothing in the Award or the industrial history of the allowance that suggests it is payable for passive or simple tasks, misses the point. The question is whether, what it describes as passive or simple tasks amounts to ‘attending to’ the compressors.
Unlike previous agreements and the awards, the Agreement provides for payment of the allowance to all maintenance persons. It seems clear that the Respondent agreed to the change in language from “fireperson” in the 2017 Agreement to “maintenance person” in the Agreement based on its understanding that it was an administrative change of no consequence. There is no evidence that a representation to that effect was made by the AMWU when requesting the change. The Respondent’s subjective belief was mistaken. As the AMWU submitted, the Respondent’s claim is essentially for the Commission to re-write the Agreement so that ‘maintenance person’ is changed to ‘fireperson’. However, the role of the Commission in construing an agreement is not to rewrite it to achieve what might be regarded as a fair or just outcome.
The Respondent submits that the word “attending” requires something more than observation of levels on a computer screen or other passive engagement with the refrigeration compressor. This work is said not to constitute ‘applying oneself to’ or ‘taking charge of’ the refrigeration compressor. It submits it requires employees to be leading or having primary responsibility for the performance of a particular task.
As can be seen from clause 9.4.1 of the 1998 Award (which remains in essentially the same terms as clause 30.3 of the 2020 Award) there is a distinction between “attending to” and “being in charge of”. This distinction in the Award between ‘attending to’ and ‘being in charge of’ does not support the Respondent’s contention that the phrase “attending to” should have a more confined meaning in the Agreement.
Whilst I have not taken this into account in construing the provision, I note that practical difficulties would also ensue under the Respondent’s preferred construction. The Respondent’s construction requires the Commission to read “intrusive or invasive work” into the words “attending to.” Absent any definition of invasive work, it is difficult to draw a line as to when the allowance applies. This difficulty was illustrated during the hearing when counsel for the Respondent in describing a situation where a maintenance employee is assisting the refrigeration mechanic undertaking invasive work on refrigeration compressors, submitted that the maintenance employee’s entitlement to the allowance would depend on if they were providing ‘meaningful’ assistance.
In some circumstances subsequent conduct may be relevant to the interpretation of an industrial instrument, if it shows that there has been a meeting of the minds. It appears that no complaints have been raised by employees prior to the genesis of the present dispute. However, absence of a complaint or common inadvertence is insufficient to establish a common understanding. The Respondent acknowledges that it should have (but has not) paid the allowance to the refrigeration mechanic and the maintenance employees when performing invasive work or providing ‘meaningful’ assistance for this work. In this context there is no basis to conclude that there has been a meeting of the minds in relation to the application of the allowance.
Conclusion
It seems from the industrial history of the allowance, that it was only payable to a fireman/fireperson and/or engine driver. However, that is not what the terms of clause 22.1.9 of the Agreement provides. The Respondent may not have appreciated the impact of altering the wording from ‘fireperson’ to ‘maintenance person’, but that is the effect of the change.
The answer to Question 1 is as follows: In clause 22.1.9 of the Agreement what does “attending to” mean in relation to payment of the allowance? The performance of required maintenance work on a refrigeration compressor.
The resolution of this question resolves the dispute, as the Respondent submitted, and the remaining questions fall away.
DEPUTY PRESIDENT
Appearances:
Mr Wainwright, Industrial Officer for the Applicant
Mr Minucci of Counsel for the Respondent
Hearing details:
Friday
19 May 2023 via Microsoft Teams
[1] Exhibit AMWU1, Witness Statement of David Taranto, Digital Hearing Book (“DHB”) p.72.
[2] Exhibit AMWU3, Witness Statement of Jason Langdon, DHB p.69.
[3] Exhibit AMWU4, Witness Statement of Dale Robertson, DHB p.66-67.
[4] Exhibit R1, Witness Statement of Dayne Pickering, DHB p.90-93.
[5] Exhibit R2, Witness Statement of Lucy Dare, DHB p.103 and oral evidence.
[6] Applicant’s Outline of Submissions at [8]-[11], DHB p.10.
[7] Respondent’s Outline of Submissions at [3]-[4], DHB p.83-84.
[8] Ibid at [10], [20].
[9] (1984) 8 IR 308 at 311.
[10] [2017] FWCFB 3005 at 114.
[11] [2021] FCAFC 123 at 43.
[12] [2023] FCAFC 66 at 56.
[13] (8th Edition).
[14] Respondent’s Outline of Submissions at [21]-[27], DHB p.87-88.
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