“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Unilever Australia Trading Ltd T/A Streets Ice Cream, Minto
[2023] FWC 2582
•3 NOVEMBER 2023
| [2023] FWC 2582 |
| 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
Unilever Australia Trading Ltd T/A Streets Ice Cream, Minto
(C2023/2419)
| COMMISSIONER MCKENNA | SYDNEY, 3 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the “AMWU”) is in dispute with Unilever Australia Trading Ltd T/A Streets Ice Cream, Minto (“Unilever”) about the operation of the Unilever Australia Trading Ltd (trading as Streets Ice Cream, Minto) Enterprise Agreement 2021 (the “Agreement”). At its core, the dispute involves the proper construction of the Agreement in relation to the question of whether certain employees who work at Unilever’s site at Magnum Place in Minto, New South Wales, are entitled to the payment of a heavy vehicle driving allowance (“HVDA” or “allowance”) via the interaction of the Agreement and clause 20.2(c) of the Food, Beverage and Tobacco Manufacturing Award 2020 (“Food Award”). The HVDA under the Food Award is, the submissions indicated, presently $1.31 an hour. Unilever does not pay the HVDA to the relevant employees, has not paid it in the past and submits there is no entitlement to payment. The AMWU submits that the employees are entitled to be paid the HVDA and that it should have been paid to relevant employees in the past at the requisite rate under the Food Award.
The dispute about the HVDA has been brought before the Commission by way of an application under s.739 of the Fair Work Act 2009 (the “Act”). It is common ground that the Commission is empowered to deal with the dispute by operation of the dispute settling procedure set out at clause 20 of the Agreement. As to that, the parties put forward an agreed question for determination in the proceedings. The parties also put forward an agreed statement of facts, together with other evidence adduced in the proceedings and the submissions made. Moreover, the AMWU seeks certain orders going to, in effect, the calculation and redressing of alleged underpayments of the HVDA.
The agreed question
The parties have agreed that the following question is appropriate for determination:
“In the circumstances of the application, and having regard to the Agreed Statement of Facts and the Agreement, are employees who are required to operate a heavy vehicle entitled to payment of the Heavy Vehicle Driving Allowance, as prescribed by clause 20.2(c) of the Food, Beverage and Tobacco Manufacturing Award 2020?”.
The agreed statement of facts
The parties’ agreed statement of facts sets out some framework matters. It reads as follows:
“1. The Unilever Australia Trading Ltd, (Trading as Streets Ice Cream, Minto) Enterprise Agreement 2021 (the Enterprise Agreement) has application to Unilever Australia Trading Limited with respect to employees at the Minto NSW Site who fall within the scope of the Enterprise Agreement (subclause 2.1.3).
2. Employees of Unilever at the Minto Site who are employed pursuant to the terms and conditions of the Food Beverage and Tobacco Manufacturing Award 2020 (the F&B Award) are within the scope and are covered by the Enterprise Agreement.
3. Employees who are covered by the Enterprise Agreement as a result of the Application of the F&B Award, perform production duties at the Minto Site (Production Employees).
4. Suitably qualified and licensed Production Employees of Unilever employed at the Minto Site are required by their manager to operate one or more of the seven forklifts described as Counterbalance Forklifts or Standup Forklifts (the Forklifts). Depending on the particular role of the relevant Production Employee, they operate Forklifts from time to time, or it constitutes their predominant role.
5. The Forklifts vary in Gross Vehicle Weight (GVW), but the GVW for each Forklift is above 3 tonnes.
6. The F&B Award does not cover employees covered by the Manufacturing and Associated Industries and Occupations Award 2020.” (Bold in original)
The AMWU adduced evidence from Matthew Campbell, who has been an employee of Unilever since c.2008. Unilever adduced evidence from Cassandra Piccinin, HR Business Partner. Their statements of evidence were admitted into evidence without objection and without cross-examination.
Agreement and award clauses
Clause 2.5 of the Agreement includes the following definition as to certain modern awards for the purposes of, relevantly, clause 2.6:
“‘Awards’ means the Manufacturing and Associated Industries and Occupations Award and the Food Beverage and Tobacco Manufacturing Award 2020.” (Bold in original)
Clause 2.6 of the Agreement describes the relationship of the Agreement and the two nominated modern awards (and the National Employment Standards). It reads as follows:
“2.6 Relationship to the Modern Awards and the National Employment Standards (NES)
2.6.1 To the extent that there is any inconsistency between this Agreement and the Awards then the provisions of this Agreement will apply. Where this Agreement is silent then the relevant Award(s) will apply. Where this Agreement is silent and where the Award(s) differ on conditions, the industrial parties will resolve the issues and add into the Agreement at its next review.
2.6.2 There will be no use of facilitative provisions during the life of the Agreement without the agreement of the parties.
2.6.3 This Agreement will be read in conjunction with the terms and conditions of the NES. Any additional benefit or entitlement provided by this Agreement will apply.” (Bold in original)
The Agreement refers to payment and non-payment of certain allowances. First, clause 10 (Meal Allowance) of the Agreement deals with rights and obligations concerning a meal allowance/voucher. Second, clause 15.4 (Rates of Pay – Apprenticeship) sets out a table of pay rates, with asterisked text which reads: “* Apprentices are not entitled to receive the tool allowance.” (Appendix E to the Agreement otherwise separately identifies that, as to apprentices, “A Tool allowance is not applicable and the company will supply and replace the tools required”). Third, clause 15.5 (Allowances) sets out a table which addresses how six identified allowances are to be calculated and paid over the life of the Agreement, and the money amounts thereto. Fourth, clauses 15.5.1 to 15.5.7 comprise additional text elaborating matters concerning seven allowances:
· Tool Allowance (15.5.1) (albeit this clause identifies, for the avoidance of doubt, that “… all Maintenance Levels are inclusive of tool allowance” - rather than specifying, for example, a discretely-identified money amount for this particular allowance in the table in clause 15.5);
· First Aid Allowance (15.5.2);
· Cold Allowance (15.5.3);
· Line Co-ordinator Allowance (15.5.4);
· A Class Electrical Licence Allowance (15.5.5);
· Restricted Electrical Licence Allowance (15.5.6); and
· Refrigeration Allowance (15.5.7).
Unilever submitted that:
· there is inconsistency (within the meaning of the first sentence of clause 2.6.1 of the Agreement) “in that the 2021 EA contains the Six Allowances at clause 15.5 (plus the Meal Allowance) whereas the Food Award contains a range of different allowances, including the Award Heavy Vehicle Allowance (which is the subject of this Dispute). Accordingly, if there is inconsistency on Allowances, then the 2021 EA applies, not the Modern Award”;
· the 2021 EA is not silent (within the meaning of the second sentence of clause 2.6.1 of the Agreement) “as to Allowances that are operative and payable at the Minto Site”; and
· if the Agreement is found by the Commission to be “silent” on the HVDA, then this perceived difference (in a condition) is not settled by requiring Unilever to make payment of the HVDA to employees. Correctly interpreted, the Agreement simply requires resolution of the issue and inclusion in the enterprise agreement at its next review and there is no requirement to pay any differing condition that gives rise to any difference.
Turning first to the “inconsistency” point, I do not accept Unilever’s submissions which were to the effect that clauses 10 and 15.5 the Agreement constitute an “exhaustive set of conditions” or a “stand alone” package of entitlements pertaining to the allowances payable at the Minto site and that any other allowance contained in the Food Award has no effect, for example, in circumstances where the Agreement does not make any reference to “any other (or more generous) award benefits” such as to apply to the exclusion of any modern award. This is because the Agreement itself, in mandatory language, says at clause 2.6.1 what “will apply” where it is “silent”; and while the Agreement addresses various matters concerning allowances across clauses 10, 15.4 (and Annexure E) and 15.5, it is silent in relation to an HVDA as would otherwise apply under the Food Award. That is, the Agreement does not contain either an HVDA or, for example, any other analogous or broadly-analogous allowance or payment identified as being referable to providing remuneration to employees who undertake heavy vehicle driving. Unlike what the Agreement says about the tool allowance in relation to maintenance levels and apprentices, for example, there is no identification in the Agreement that an HVDA is subsumed into some other rate or payment in the Agreement, or that it excluded. In such respects, the AMWU submitted:
“10. … cl.15.5.1(a) expressly provides that maintenance levels are inclusive of the tool allowance (which is derived from the [Manufacturing Award]). Similarly, cl.15.4 and Appendix E displace the tool allowance for apprentices. If the Agreement exhaustively listed all the allowances payable, there would be no need for the above clauses. Instead, the parties turned their minds to the fact that, if the tool allowance was not expressly displaced by the Agreement, it would otherwise be payable by virtue of the Manufacturing Award.
…
13. … if the mere mention of allowances as a subject matter in the Agreement rendered allowances prescribed by the underlying modern awards inutile, why did the parties deem it necessary to expressly displace the tool allowance in the Manufacturing Award? The only available answer to that question is that, in circumstances where the Agreement is silent as to the tool allowance, it would nonetheless be payable as a result of the Manufacturing Award. The parties could have taken the same approach to displacing the HVD allowance yet elected not to do so.”
The Agreement does not contain any form of an HVDA or an HVD-type allowance, and the following is my reading of the text of clause 2.6.1 of the Agreement.
· The first sentence of clause 2.6.1 reads: “To the extent that there is any inconsistency between this Agreement and the Awards then the provisions of this Agreement will apply.” As I read the Agreement, there is no “inconsistency between this Agreement and the Awards” such that “then the provisions of this Agreement will apply” in relation to (effectively excluding) entitlement to payment of the Food Award’s HVDA.
· The second sentence of clause 2.6.1 reads: “Where this Agreement is silent then the relevant Award(s) will apply.” The Agreement, as a matter of textual fact, “is silent” on the matter of an HVDA. As a consequence of the Agreement’s silence on the matter of an HVDA, “then the relevant Award(s) will apply”. In this case, the result is that the Food Award applies in relation to the HVDA given the operation of clause 2.6.1 concerning what is identified in the clause heading as being the “Relationship to the Modern Awards and the National Employment Standards”. The wording in the Agreement is distinguishable from what was considered in Ricegrowers Limited T/A SunRice CopRice Feeds and Australian Grain Storage Pty Ltd v United Workers Union[2022] FWCFB 205 (“Ricegrowers”). In Ricegrowers, the Full Bench had before it an enterprise agreement which identified at clause 6 the “Application of the Agreement” in terms of the incorporation of the Food Award and the Manufacturing Award and, at clause 11.1(a), that “The wage rates and allowances during the term of this Agreement are set out in Schedule A”. Specifically, the Full Bench in Ricegrowers concluded (at [51]) that “… clause 11.1(a) has a plain meaning. It specifies that the allowances are set out in Schedule A and leaves no room for allowances in either the Food Award or the Metals Award to be incorporated into the Agreement through the operation of clause 6.” The words in the enterprise agreement considered by the Full Bench in Ricegrowers are, reasonably self-evidently, operatively and contextually different in meaning from what is before me in the scheme and structure of the Agreement.
· The third sentence of clause 2.6.1 reads: “Where this Agreement is silent and where the Award(s) differ on conditions, the industrial parties will resolve the issues and add into the Agreement at its next review.” Here, the Agreement “is silent” on the matter of an HVDA. As the Agreement and the Food Award “differ on conditions”, then, the Agreement further stipulates, “the industrial parties will resolve the issues and add into the Agreement at its next review”. The issues between the parties as to the payment of an HVDA have come before the Commission pursuant to the dispute settling procedure – which will “resolve” the issues via the dispute settling procedure agreed by the parties in the Agreement. Relevantly, the Agreement’s dispute settling procedure specifies as follows as to referral to the Commission if the matter remains “unresolved” after the different stages of Agreement-specified discussions:
“20 DISPUTE SETTLING PROCEDURE
20.1 …
20.2 …
20.3 …
20.4 If the matter remains unresolved, either party will have the right to notify FWC to conciliate and, to arbitrate on matters dealt with by this agreement.
20.5 No party will be prejudiced as to the final settlement by the continuance of work in accordance with this Agreement.
20.6 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.
20.7 …
20.8 …”. (My underline)
Following from what is set out in the third sentence of clause 2.6.1, it appears that future steps will be expected to be taken by way of adding “into the Agreement at its next review” – although it may be the case that this aspect of the clause is, as Unilever submitted, “aspirational”. For example, given the swings and roundabouts of negotiations for any (potential) future enterprise agreement, I doubt that the third sentence of clause 2.6.1 of the Agreement could bind Unilever and its voting employees as to the particular form and content of any future enterprise agreement or particular clauses therein in relation to an HVDA. These will be matters for enterprise bargaining negotiations – despite the AMWU’s submissions that this part of clause 2.6.1 comprises “an express requirement mandated by the Agreement, not some aspirational motherhood statement” and that the “evident purpose of this clause is to ensure that, where possible, employees’ conditions of employment are spelt out in the Agreement to avoid the exercise of cross-referencing the underlying modern awards”.
To avoid doubt, given aspects of Unilever’s submissions, I do not consider that the non-payment of the HVDA properly could be, in effect, left in abeyance pending the making of any future enterprise agreement by the operation of the third sentence of clause 2.6.1 of the Agreement. Relevantly, as the AMWU submitted:
“16. Should the Commission find that the Agreement is silent with respect to the HVD allowance, Unilever contends that, pursuant to cl.2.6.1, no payment is required; rather, the parties must simply resolve the issue and add the HVD allowance into the Agreement at its next review. On Unilever’s construction, where the Agreement is silent, the Food Award would never have any substantive application at all. That interpretation is at odds with the express words of cl.2.6.1, which provides that ‘where the Agreement is silent then the relevant Award(s) will apply.’ As the Food Award applies, the parties are bound and the HVD allowance is payable.” (Italics and underline in original)
Either there is an underpayment for the purposes of the Agreement as it stands, or there is not. Non-payment obviously requires prompt rectification by Unilever rather than, for example, existing non-payment/underpayment somehow being put on hold pending the making of any successor enterprise agreement.
Previous industrial instruments at the Minto site
The Agreement is the latest iteration in a succession of industrial instruments that have governed pay and conditions at the Minto site since 1996. Apart from the Agreement itself, enterprise agreements made under the Act were identified as follows:
· Unilever Australia Trading Ltd (trading as Streets Ice Cream, Minto) Enterprise Agreement 2017 [2017] FWCA 6389 (the “2017 Agreement”);
· Unilever Australia Trading Ltd, (trading as Streets Ice Cream, Minto) Enterprise Agreement 2013 [2014] FWCA 2762 (the “2013 Agreement”, albeit approved in 2014); and
· Unilever Australia Trading Limited (trading Streets Ice Cream, Minto) Enterprise Agreement 2010 [2010] FWAA 9875 (the “2010 Agreement”)
(or, collectively, “the Earlier Agreements”).
Reference was also made to industrial instruments that pre-dated the Act. An industrial instrument from as early as 2004 referenced vintage “parent awards” including the Ice Cream Makers (State) Award and the Metal, Engineering and Associated Industries Award 1998. That is, a 2004 iteration of the certified agreement that applied at Minto contained text which read:
“2. SCOPE, APPLICATION & PARTIES BOUND
(i) …
(ii) …
(iii) …
(iv) …
(v) RELATIONSHIP TO AWARDS
To the extent that there is any inconsistency between this Agreement and the parent* awards then the provisions of this Agreement shall apply. Where this Agreement is silent then the relevant parent award shall apply. Where this Agreement is silent and where the parent awards differ on conditions, the industrial parties will resolve the issues and add into the Agreement at its next review.
There will be no use of facilitative provisions during the life of the Agreement without the agreement of the parties.
*Parent awards are recognised as being: Ice Cream Makers (State) Award Metal, Engineering and Associated Industries Award, 1998
Notwithstanding further reform of Awards, the Company is prepared to continue to honour the terms of the Metal, Engineering and Associated Industries Award 1998 and the Ice Cream Makers (State) Award.
Any previous agreement which has not been included with the Certified Agreement will be honoured.”
Skipping over a number of industrial instruments in the archaeological dig of what was before me in the evidence and submissions, the 2013 Agreement continued a largely familiarly-worded provision dealing with its interaction with the then-prevailing “parent awards”. For its part, the 2013 Agreement identified the Manufacturing Award and the Food Award in the following terms as an asterisked description of the “parent* awards”:
“*Parent awards incorporated by reference are: ‘The Manufacturing and Associated Industries and Occupations Award 2010’ and ‘The Food, Beverage and Tobacco Manufacturing Award 2010’.”
The 2017 Agreement, being the enterprise agreement which applied immediately before the Agreement that is now the subject of this dispute, read at clause 3(v):
“(v) RELATIONSHIP TO THE MODERN AWARDS AND THE NATIONAL EMPLOYMENT STANDARDS
To the extent that there is any inconsistency between this Agreement and the parent* awards then the provisions of this Agreement shall apply. Where this Agreement is silent then the relevant parent award shall apply. Where this Agreement is silent and where the parent awards differ on conditions, the industrial parties will resolve the issues and add into the Agreement at its next review.
In the event that the Modern awards are varied following the certification or approval of this Agreement, the parties agree that:
(a) any increase or improvement in the wages, entitlements or condition of employment of employees will also be incorporated into this Agreement; and
(b) Any [sic] reduction or removal of wages, entitlements or conditions of employment will not apply to employees to whom this Agreement applies.
To avoid doubt no employee shall suffer any loss of wages, entitlements, employment conditions or other benefit as a result of amendments to the Modern awards. The parties agree that the enterprise flexibility provisions in the parent awards will only be used by agreement of the parties to this Agreement.
There will be no use of facilitative provisions during the life of the Agreement without the agreement of the parties.
*Parent awards incorporated by reference are: ‘The Manufacturing and Associated Industries and Occupations Award 2010’ and ‘The Food, Beverage and Tobacco Manufacturing Award 2010’[.]
This agreement shall be read in conjunction with the terms and conditions of the National Employment Standards (NES). Any additional benefit or entitlement provided by this agreement shall apply[.]”
The Agreement does not refer to “parent awards” being “incorporated by reference”, although text to that effect was in the 2017 Agreement and the 2013 Agreement. Unilever’s submissions drew particular attention to this change as against what was contained in the precursor agreements.
It seems to me that the salient change as between the Agreement and its two predecessor agreements in relation to the relationship to the Food Award (and the Manufacturing Award) is the omission of the following text:
“In the event that the Modern awards are varied following the certification or approval of this Agreement, the parties agree that:
(a) any increase or improvement in the wages, entitlements or condition of employment of employees will also be incorporated into this Agreement; and
(b) Any [sic] reduction or removal of wages, entitlements or conditions of employment will not apply to employees to whom this Agreement applies.
To avoid doubt no employee shall suffer any loss of wages, entitlements, employment conditions or other benefit as a result of amendments to the Modern awards. …”.
Notably and saliently, the parties determined to retain the opening paragraph, with only minor changes in the Agreement. That is, the 2017 Agreement relevantly read:
“To the extent that there is any inconsistency between this Agreement and the parent* awards then the provisions of this Agreement shall apply. Where this Agreement is silent then the relevant parent award shall apply. Where this Agreement is silent and where the parent awards differ on conditions, the industrial parties will resolve the issues and add into the Agreement at its next review.”
In the Agreement, the meaning of the “Awards” (i.e., the two modern awards) is now contained in the clause 2.5 definitions clause (rather than having an internal asterisked note within the clause as to what is meant by “parent” awards). On my reading of the text of the Earlier Agreements and the Agreement, I do not consider that anything, or anything of consequence of the proper construction of the Agreement as it now stands, turns on the operative wording of clause 2.1.6 and its lack any “incorporated by reference”-type text as found in the two immediately preceding Earlier Agreements. This is so notwithstanding my consideration of Unilever’s submissions which placed emphasis on the changed wording of the Agreement as to the lack of reference to incorporation. I reiterate that, specifically and relevantly, clause 2.6.1 of the Agreement provides: “Where this Agreement is silent then the relevant Award(s) will apply”; and this provision of the Agreement does not pivot on, and nor it is contingent upon, references to incorporation by reference of the modern awards in question. I note that the formulation as to this particular aspect of the Agreement effectively has not changed since at least 2004 other than through the substitution of the references to certain “parent” awards with “modern” awards.
Common understanding
Unilever submitted that the common understanding between the parties was, and remains, that the allowances in clauses 10 and 15 are the only allowances that are payable. Unilever also pointed to the fact that an HVDA has never been paid and there was no evidence of two different methods of calculating allowances at the Minto site. The AMWU submitted there was no common understanding and that the highest the evidence could be taken was that the HVDA has not been paid and, on the AMWU’s further submission, the history or pattern of non-payment is insufficient to justify what was advanced by Unilever concerning the Agreement.
My consideration of the evidence and submissions, and the cases to which reference was made, does not lead me to the conclusion that there has been a common understanding of the type advanced in Unilever’s case. I accept the submission that the highest the evidence could be taken is that Unilever has not paid the HVDA in the Food Award, but, without more, that certainly is not conclusive as to the existence of a common understanding that the only allowances payable are those in clauses 10 and 15. Indeed, the material before me was indicative of a common understanding that the Food Award’s HVDA was understood to apply as an entitlement. That is, the Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (“Form F17”) for the Agreement, which was put into evidence after I called for it. Certain information was set out responding to questions in the Form F17 in the form’s Annexure A. Aspects of Annexure A were quite detailed in relation to comparative information about the terms of the then-proposed Agreement, as well as the Manufacturing Award and the Food Award. Shortly stated, Annexure A to the Form F17 comprised 15 pages of information directly responding to Questions 10-14, as follows:
· In response to Question 10 concerning terms or conditions of employment that were more beneficial than equivalent terms and conditions in the comparator awards, the Form F17 attached a table of comparative information about clauses in the Agreement identified as being more beneficial than the provisions in the comparator modern awards. Among other subject matters, the table referred to the Agreement’s clause 10 meal allowance and certain allowances in clause 15.5.
· In response to Question 11, which asked whether the Agreement provided in any entitlements that were not otherwise contained in the comparator awards, the Form F17 again attached a table of information about relevant clauses in comparator modern awards and the Agreement.
· Question 12 asked whether the Agreement contained any terms or conditions of employment that were less beneficial than equivalent terms and conditions in the comparator awards. The answer given was “Yes”, together with a table of information about cold work-related allowances – identifying that the money allowance in the Agreement was less per hour than under the comparator awards.
· Question 13 asked whether the Agreement omitted any entitlements provided by the comparator awards. The answer given was “No”.
· Question 14 asked whether the Agreement contained any terms or conditions of employment different to those under the comparator awards which had not already been identified in response to Questions 10-13. The answer given was “No”.
The submissions indicated that the AMWU, in its capacity as a bargaining representative for the Agreement, had lodged a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) in which it had (relevantly) agreed with the information in Unilever’s Form F17.
Unilever’s Form F17 and the AMWU’s Form F18 were statutory declarations by the relevant declarants. The effect of the responses in the Form F17 and its Annexure A is that Unilever proceeded in its application to the Commission for the Agreement’s approval on the basis that the entitlement in the Food Award to the HVDA had not been omitted – so much is evident from the response to Question 13 in the Form F17; and the AMWU proceeded on the same basis in agreeing in its Form F18 with the information in Unilever’s Form F17. I emphasise there was nothing before me to so much as even suggest that Unilever or the AMWU knowingly gave false or misleading information or knowingly produced a false or misleading document to put before the Commission in support of the application for the approval of the Agreement.
I proceed on the basis that the information in the Form F17 was correct in this respect, and the information was understood by both Unilever and the AMWU to be correct, i.e., the common understanding of both Unilever and the AMWU, as the employees’ bargaining representative for the Agreement, was as indicated in the respective statutory declarations put before the Commission concerning the approval of the Agreement. While an enterprise agreement is made between an employer and its employees, nonetheless the AMWU was the only bargaining representative for employees identified in the approval decision. To the extent that the submissions were in contest about a common understanding, the evidence of the Form F17 and its Annexure A, and the submissions about the content of the AMWU’s Form F18, seem to put that to rest. It emerges from the parties’ documentation that the common understanding was that the HVDA was not omitted – presumptively because of the operation of clause 2.6.1 of the Agreement in as much as it indicates that “Where this Agreement is silent then the relevant Award(s) will apply”.
Payment of the HVDA
The AMWU submitted that in determining this dispute, the Commission is required to determine: (a) whether the HVDA is payable; and (b) if so, how and to whom the HVDA is paid. Unilever noted that this was not part of the agreed question and otherwise submitted that it would not be jurisdictionally appropriate or available for the Commission to purport to determine the operation of HVDA payments under the Food Award. Thus, there is disagreement between the parties as to how and when HVDA payments are engaged under the Food Award and whether that matter should be determined.
Clause 20.2(c) of the Food Award provides that “An employee who is required to drive a vehicle of more than 3 tonnes Gross Vehicle Weight (GVW) must be paid while they are engaged on such work”. The AMWU submitted that any Minto employee who is required to drive a forklift, whether it be from time to time or as part of his or her predominant role, is unambiguously entitled to receive the HVDA for all hours worked (and the fact that an employee does not drive a forklift on a particular day does not disentitle the employee to payment of the allowance). In so submitting, the AMWU made submissions including the following:
· This construction conforms with the underlying purpose of the HVDA, namely, to compensate employees for having the requisite skills and training, and maintaining the qualifications, to operate forklifts as required.
· This interpretation is supported from a contextual perspective, because the HVDA: (a) is not confined to any particular classification in the Food Award; and (b) the HVDA has been grouped with the leading hand allowance and boiler attendant allowance as the only all-purpose allowances contained in the Food Award, i.e., the leading hand allowance and the boiler attendant allowance are payable for all hours worked (e.g., not just the periods that, for example, a boiler was operated).
· An examination of the original provisions of the Bread Industry (State) Award, the submissions in the award modernisation process, the award review process, and the final form of the HVDA arrangements in the Food Award lead to the conclusion that the Food Award unambiguously requires that the HVDA be paid to employees required to operate a forklift, whether it on a regular or occasional basis, for all hours worked.
The AMWU also submitted that an approach to payment of the HVDA other than in the way it contended “would lead to industrially unsensible outcomes. For example, Unilever would be required to log the minutes (or, indeed, seconds), that an employee drove a forklift to ensure correct payment” – “in a dynamic environment whereby forklifts are operated at multiple junctures throughout any given day.” Further, as the HVDA is payable for all purposes, it must be paid to employees during periods of annual leave under the Food Award.
Unilever submitted that the Food Award “does not bow to the interpretation suggested” by the AMWU. The two relevant elements are that: (a)employee must be required to drive a vehicle; and (b) the employee, so directed or required by his or her manager, must be paid the allowance “while they are engaged on such work”. As such, the HVDA payment attaches to circumstances where the direction is given (to make use of the vehicle) and the employee is then engaged on such work, with the words “such work” being referrable only to the work of operating the vehicle under the direction of the manager within the context of a shift. No amount of alleged perceived or contemplated industrial realities of the type to which the AMWU referred can overcome the plain and ordinary meaning of the words in the Food Award. Having regard to the evidence and submissions, Unilever submitted that the Commission would not “express a view to the effect that the Allowance is, under the terms of the 2021 EA, payable to an employee who simply holds a forklift licence.”
I do not understand the AMWU’s submissions to contend that the HVDA should be payable to a Minto employee simply because he or she holds a forklift licence. Rather, the submissions of the AMWU essentially are that relevant employees who undertake HVDA-eligible work at Minto (relevantly, those who are required by Unilever to drive/operate the forklifts) should be paid the allowance on an all-purpose basis – and it could not be the case that the HVDA would be paid only on a “stopwatch”-type basis recording the specific minutes, hours or days in any given pay period in which the employee was engaged and/or not engaged in such work.
I consider that the submissions made by the AMWU constitute the correct construction concerning payment of the HVDA in relation to this dispute – and it is necessary to say that given: (a) my acceptance of the AMWU’s submissions that the Agreement references the Food Award applicability in relation to the HVDA; and (b) the disagreement between the parties about whether entitlement to payment of the HVDA is engaged only temporarily for the time spent physically engaged in driving/operating one of the forklifts or, alternatively, as an all-purpose allowance for those who engage in such work as part of their job at Minto.
As to the power to arbitrate on this aspect of the dispute, I again note that the dispute settling procedure in the Agreement provides that “If the matter remains unresolved, either party will have the right to notify FWC to conciliate and, to arbitrate on matters dealt with by this agreement.” The relationship between the Agreement and the modern awards is specifically referenced/dealt with by the Agreement, and the parties’ disagreement about what payment entitlement flows from that relationship is a matter which necessarily falls for determination in resolving the dispute.
Orders sought by the AMWU
The AMWU proposed that the Commission should make orders in the following terms (or, alternatively, that Unilever should give an undertaking that it would take the same steps as set out in the proposed order):
“1. Within 7 days of this determination, Unilever is to:
(a) conduct an audit of all amounts paid to employees covered by the Agreement in respect of the HVD allowance since the commencement of operation of the Agreement;
(b) produce to the AMWU a document separately identifying, in respect of each employee, amounts:
(i) that were paid to them;
(ii) that would have been paid to them if the HVD allowance was paid;
(iii) representing the difference between the two amounts above; and
(iv) representing interest on the difference, calculated at Federal Court rates, and the underlying information used to perform said calculations.
2. Within 7 days of receiving the document described above, the AMWU is to notify Unilever of any dispute about the calculations.
3. If any disputes arise, the parties are to confer within 7 days to attempt to resolve the dispute.
4. In the event that any disputes remain unresolved, the matter is to be returned to the Commission for determination in proceedings C2023/2419 and remitted to [insert] (sic) for this purpose.
5. Unilever is to make payment to each employee an amount of money representing the total of any amounts identified at [1](b)(iii) and (iv) above:
(a) in respect of amounts that are not the subject of a dispute under [2] above, within 24 hours of the date identified at [2] above; and
(b) in respect of amounts that are the subject of a dispute, within 7 days of the resolution of the dispute either following the conferral required by [3] above or by the Commission’s determination per [4] above.”
Relying on authorities including FreshFood Management Services Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and another [2023] FWCFB 97 (“FreshFood”), the AMWU submitted that the orders were necessary to fully resolve the dispute and within the Commission’s power as a private arbitrator. As to that submission, I note that FreshFood has very recently been cited with approval in Jonathan Dugald Mitchell v University of Tasmania[2023] FWCFB 160 at [121]-[122].
Regardless of whether the proposed orders may be within power, I simply would not, in the exercise of discretion, make orders in the terms proposed by the AMWU. Principal amongst my concerns, being a matter I flagged in the proceedings, is that the proposed orders would involve Unilever being required to provide to the AMWU information about all relevant employees’ earnings since the commencement of the operation of the Agreement (i.e., union members, non-union members and, potentially at least, former employees as well as current employees). This has the potential to raise serious privacy considerations as to what individuals have earned in their employment with Unilever; it is unknown whether any or all of those individuals would consent to the provision of their private financial/wages information to the AMWU. Another concern is that the timeline in the proposed orders is, in any event, impracticably short and/or quite unworkable given the magnitude of the payroll task that would be involved. I decline to make the proposed orders.
Conclusion
Three matters should be addressed in concluding the proceedings in relation to the dispute.
First, my answer is “Yes” to the question posed, namely:
“In the circumstances of the application, and having regard to the Agreed Statement of Facts and the Agreement, are employees who are required to operate a heavy vehicle entitled to payment of the Heavy Vehicle Driving Allowance, as prescribed by clause 20.2(c) of the Food, Beverage and Tobacco Manufacturing Award 2020?”.
Second, given the disagreement between the parties on the directly-related matter of payment of the HVDA under the Food Award, I determine that the payment to the relevant Minto employees correctly is to be made in a way that is conformable with the all purposes-type approach advocated by the AMWU rather than the narrower approach to payment entitlement advocated by Unilever. The relevant employees’ entitlements should be calculated and paid accordingly.
Third, I decline to make the orders proposed by the AMWU; they are inappropriate. In such respects, I otherwise note the comments in FreshFood which also seem apposite here:
“[123] We would however observe that whilst it may have been open to the Commissioner to make orders requiring remedial administrative and related actions that flowed from the Decision, it would not, in the present case, have been necessary for the Commission to make orders requiring the payments of outstanding amounts due under the Agreement, as this arises in any event from the force of the arbitrated outcome; that is, the determination and the operation of the FW Act itself. For the Commissioner to decline to make the orders sought by the Unions was an exercise of discretion and no error is established in this respect.” (My underline)
The proceedings are now concluded.
COMMISSIONER
Appearances:
J Martin of the Australian Manufacturing Workers’ Union for the applicant.
P Brown of Baker McKenzie for the respondent.
Hearing details:
2023.
Sydney:
October 6.
Printed by authority of the Commonwealth Government Printer
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