Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fonterra Australia Pty Ltd

[2014] FWC 7814

[2014] FWC 7814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Fonterra Australia Pty Ltd
(C2014/5447 and C2014/5449)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 NOVEMBER 2014

Alleged dispute regarding implementation of a drug and alcohol policy - submission of further material.

[1] This decision concerns a request made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 21 October 2014 for permission to submit further material as evidence after its primary applications had been heard by the Fair Work Commission (the Commission) on 16 and 17 October 2014 and a decision reserved.

[2] By way of background, the CEPU’s request concerns separate disputes notified under s.739 of the Fair Work Act 2009 (the Act) by the CEPU and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australia Manufacturing Workers’ Union (AMWU) in accordance with the dispute resolution provisions of the Fonterra (Maintenance Services; Cobden, Cororooke, Stanhope and Darnum) Union Collective Agreement 2013 1 and the Fonterra (Echuca) Agreement 2013 Part II2 (the agreements). The disputes concern the introduction by Fonterra Australia Pty Ltd (Fonterra - the Respondent) of a drug and alcohol policy which effectively provides that employees must not present for work with a blood alcohol reading of 0.02 or above. The CEPU and AMWU contend that the policy is inconsistent with the basis on which the availability allowance for maintenance and electrical employees in the agreements was negotiated and has operated since its introduction in the 1990’s.

[3] A conference was held on 28 October 2014 to discuss the CEPU’s request. At that conference, the CEPU indicated among other things that the material, which dates back to the early 1990’s, was only found after the proceedings had concluded and that it considered the material to be very probative in rebutting the evidence of Mr Eftiamades who gave evidence on Fonterra’s behalf. The AMWU did not add to the CEPU’s comments.

[4] Fonterra, in objecting to the CEPU’s request, described it as extraordinary. In doing so, it relied upon Commissioner Cribb’s decision in Modra v Yirara College of the Finke River Mission Inc 3(Modra) in which she was guided by a number of principles set out in her decision regarding the re-opening of a case once a decision had been reserved4. In addition, Fonterra described the material which the CEPU sought to introduce as not being of any probative value.

[5] The conference concluded on the basis that the Commission would consider the CEPU’s request and the parties’ views. At the conference, the parties agreed that a copy of the material would be provided to the Commission to assist it in its consideration.

[6] Having examined the material, considered the views of the parties and the principles outlined in Modra, I have decided not to accede to the CEPU’s request. In my view, the material does not assist me in determining the key issue I need to determine in the substantive disputes before the Commission, i.e. whether the introduction of the availability allowance was underpinned by an understanding that a blood alcohol reading of 0.05 was considered safe for employees to respond to a call out.

DEPUTY PRESIDENT

 1   AE408070

 2   AE402558

 3   [2010] FWA 2900

 4   Ibid at paragraphs [9] and [13]

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