Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU)vChristie Tea Pty Ltd

[2011] FWA 905

[2011] FWA 905

FAIR WORK AUSTRALIA

STATEMENT AND

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU)
v
Christie Tea Pty Ltd
(C2010/5546)

FOOD, BEVERAGE AND TOBACCO MANUFACTURING AWARD 2010
(ODN AM2008/37)  [MA000073]

Food, beverages and tobacco manufacturing industry
COMMISSIONER HAMPTON	ADELAIDE, 10 FEBRUARY 2011

Alleged dispute about matters arising under the modern award.

Introduction and background

[1] This matter involves an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) pursuant to s.739 of the Fair Work Act 2009 (the Act). The respondent employer is Christie Tea Pty Ltd (Christie).

[2] The application concerns a dispute regarding two aspects of the Food, Beverage and Tobacco Manufacturing Award 2010 (the modern award); being:

• Clause 13.4 Casual conversion to full-time and part-time employment (the casual conversion matter); and



• Clause 30.2 Ordinary hours of work - day workers (the hours of work matter).

[3] The matter was first heard in December 2010 and a Statement and Recommendations issued to the parties at that time (the December Statement). 1 The background and positions of the parties are outlined in the December Statement and I will not repeat the same here.

[4] The parties reported back to the Tribunal on 9 February 2011 and advised that the hours of work matter had been resolved. In that context, I note that the parties agreed that the issue would be the subject of fresh consultation with the employees with a view to confirming their views on the proposed modification to the ordinary hours of work. This was one of the options recommended in my earlier statement.

[5] It was agreed by the parties that the nature of the proposed change was such that under the terms of the modern award an agreement could be made with the majority of the employees. Following an agreed process, involving the provision of joint information provided by both management and the AMWU, a majority of the employees endorsed the change in hours of work. That process involved all employees at the workplace and given the nature of the workplace, the working and shift arrangements, and the potential impact of the change on all employees I consider that this was consistent with the intentions of the modern award.

[6] I also note that a copy of the agreement and the materials supporting it should be retained and kept as part of the time and wages records required by the Act, and in this case, clause 8 of the modern award.

[7] Despite further discussions, including during the resumption of the conference, the casual conversion matter has not been resolved. Without outlining the positions of each party, I observe that both retain their views largely as summarised in the December Statement.

[8] I have identified five options that would appear to exist as a result of the circumstances now present. They are as follows:

1. Resolve the matter by the employees accepting Christie’s refusal to allow the conversion.

2. Resolve the matter by Christie accepting the requested conversions to full/part-time employment as sought by the employees.

3. Undertake further discussions and exchange of information (concerning hours of work and production schedules etc) designed to reach an agreed outcome.

4. Submit the matter, by agreement, to Fair Work Australia for arbitration.

5. One or both parties to submit the matter to a Court of competent jurisdiction to determine whether the refusal to convert complies with the modern award requirements.

[9] Both parties have agreed to review their positions and to confirm a preferred approach with the other. I would observe that there remains some potential to advance option 3, perhaps on the basis that an Individual Flexibility Agreement as contemplated by clause 7 Award Flexibility of the modern award could provide some mutual flexibility on the operation of part-time hours so as to facilitate some or all of the conversions. 2  Any such agreement would of course need to operate within the parameters of that provision including the better off overall requirement.

[10] In determining their positions, I would urge the parties to have regard to the issues and considerations pertaining to the casual conversion matter as summarised in the December Statement.

RECOMMENDATION

THAT the parties consider their positions in the light of the above observations and confirm their positions to each other and Fair Work Australia at the earliest opportunity.

[11] Liberty to apply the have the matter relisted has been granted to both parties.

COMMISSIONER

 1   [2010] FWA 10121. This Statement was issued to the parties at the time and recently published by Fair Work Australia.

 2   During the conference Christie raised concerns as to the impact of clauses 12.3, 12.4 and 12.8 of the modern award dealing the ordinary hours and overtime provisions for part-time employees.

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<Price code A, MA000073  PR506673>