Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nestle Australia Limited T/A Nestle

[2019] FWC 2089

[2019] FWC 2089

FAIR WORK COMMISSION

DECISION

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); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Nestle Australia Limited T/A Nestle
(C2018/3539; C2018/3543)

COMMISSIONER MCKINNON MELBOURNE, 29 MARCH 2019

Alleged dispute arising under an enterprise agreement – whether change to overtime arrangements contravenes enterprise agreement – whether implied contractual terms.

Introduction

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have applied to the Commission under section 739 of the Fair Work Act 2009 (Act) for assistance in relation to a dispute under the Nestle Australia Limited – (National Framework) Agreement 2015-2018 1(the Agreement).

[2] The dispute is about whether the Agreement permits Nestle Australia Limited (Nestle) to require maintenance employees at its Campbellfield factory (Campbellfield) to work Saturday overtime over a span of 8.5 hours with a 30 minute unpaid meal break. Employees currently work Saturday overtime over a span of 8 hours, including two 20 minute paid crib breaks (“the Straight 8”).

[3] The AMWU says the Straight 8 forms part of the employees’ contracts of employment and is thus preserved by clause 3.5 of the Agreement, which provides for “existing over Award conditions” to continue to apply unless varied by the Agreement or by negotiation and subsequent agreement.

[4] In the alternative, the AMWU says clause 8.1 of Appendix 2 to the Agreement preserves the Straight 8, because it provides that existing hours of work arrangements in place at the time the Agreement was made are to continue unless varied by agreement.

[5] Nestle says the Agreement expressly requires and permits Nestle to make the proposed changes. It says clause 3.5 operates subject to other express terms of the Agreement. It also says the Straight 8 is not a term of employee contracts of employment and nor is it an “over Award condition” covered by clause 3.5. It rejects the argument that clause 8.1 of Appendix 2 to the Agreement can be relied on to preserve the Straight 8 on the basis that clause 8.1 deals with ordinary hours of work, not overtime.

[6] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. Clause 13 of the Agreement provides a mechanism for dealing with disputes in relation to matters arising under the Agreement, the National Employment Standards or “any other matter in writing that has been agreed to by the parties explicitly providing for this dispute resolution procedure”.

[7] Under the Agreement, disputes can be referred to the Commission for conciliation. If conciliation fails to resolve the dispute, clause 13 empowers the Commission to resolve the dispute by arbitration. Issues arising under clause 12 of the Agreement “Process of Change” can also be referred to the Commission at any stage. The Commission’s power to arbitrate matters arising under the Agreement is “limited to the specific interpretation, application or process of implementation of a term or terms under the Agreement”.

[8] It is agreed that the Commission can deal with this dispute as a matter arising under the Agreement and that it can do so by arbitration under clause 13. The question for determination is as follows:

“Would Nestle contravene the Agreement by requiring that maintenance employees working under the terms of the Agreement at Campbellfield cease to work Saturday overtime over 8 hours with no unpaid midday/mid-shift break and instead work such overtime over 8.5 hours with a 30 minute unpaid midday/mid-shift break?”

Agreed facts 2

[9] Nestle produces a variety of chocolate based products on different lines at Campbellfield.

[10] Until about May 2018, about 33 maintenance workers engaged at Campbellfield were engaged through a labour hire/contractor arrangement and 15 were employed by Nestle. In about May 2018, Nestle completed an "insourcing" process that saw 16 of the labour hire/contractor employees commence employment with Nestle under the terms of the Agreement.

[11] At the time of the hearing, there were 43 maintenance workers at Campbellfield including 29 fitters, 3 trades assistants and 11 electricians. Of these, 32 were directly employed by Nestle.

[12] About 28 workers are on non-rotating day work, while about 12 are on a non-rotating afternoon shift and 3 are on non-rotating night shift.

[13] Campbellfield generally runs production over 5 days per week, Monday to Friday, over 24 hours. From time to time, production will also run on Saturdays on various lines. Infrequently, production occurs on Sunday.

[14] Before the Agreement commenced, it was typical for some maintenance employees and their labour hire/contractor counterparts to carry out repairs or maintenance on Saturdays as overtime. Also, from time to time, when production occurred on Saturday, employees would be required to assist production employees with breakdowns, adjustments or repairs.

[15] The penalties paid to employees for Saturday overtime are time and a half for the first 3 hours and double time thereafter.

[16] The Straight 8 was the typical way in which employees worked their Saturday overtime. Employees worked 8 hours including two 20 minute paid rest breaks during the day, without taking an unpaid 30 minute meal break. This allowed them to leave 30 minutes earlier than production employees who work an 8 hour shift over an 8.5 hour span, with a 30 minute meal break.

[17] In about May 2018, around the time of the insourcing, Nestle indicated that it wanted to end the Straight 8 and instead have the 20 and 15 minute paid breaks taken around the middle of the first and second half of the day or shift respectively. It proposed a 30 minute unpaid lunch break taken at various times about the middle of the day or shift, as per the arrangement for working ordinary hours from Mondays to Friday. Meal breaks are intended to be staggered so there are always some maintenance staff working while production is running. The effect of the proposal is that employees would be present at Campbellfield for an additional 30 minutes on Saturdays.

[18] The employees and Unions oppose the end of the Straight 8.

The Agreement and the incorporated award

[19] The Agreement is a single enterprise agreement made by Nestle and employees at its Blacktown, Broadford and Campbellfield factories. The nominal expiry date of the Agreement was 24 November 2018. The AMWU and the CEPU (the Unions) are covered by the Agreement.

Terms in dispute

[20] Clause 3 of the Agreement deals with its application and operation. The Agreement incorporates all terms of the Food, Beverage and Tobacco Manufacturing Award 2010 3 (Food Award) and the Manufacturing and Associated Industries and Occupations Award 20104(Manufacturing Award) (together, the Awards). The Agreement prevails over the Awards in relation to wage rates (for all purposes) and the Agreement’s site specific appendixes prevail to the extent of any inconsistency with the Awards. Clause 39 of the Agreement also prevails over the Food Award to the extent of inconsistency. Where there is an inconsistency between the Agreement and a term of a site specific appendix, the site specific appendix term prevails to the extent of inconsistency.

[21] Clause 3.5 of the Agreement provides as follows:

“3.5 Existing over Award payments shall continue to apply. Existing over Award conditions of employment shall continue to apply unless varied by this Agreement or varied by negotiations and subsequent agreement between the Company and the Union. This provision does not restrict the use of Clause 12 “Process of Change” from being used to address productivity improvements. For the purposes of this clause, the scope of the application of Clause 12 will be in the same areas as it has been used since 1997 at each site.”

[22] Appendix 2 to the Agreement is a site specific appendix for Campbellfield. Clause 8 of Appendix 2 deals with hours of work at Campbellfield, as follows:

“8.	HOURS OF WORK
8.1	Ordinary hours of work at Nestle Campbellfield are based on a 36 hour week. This may be worked as a 36 hour week or averaged 36 hours by means of taking a rostered day. Existing arrangements in place at the time of this Agreement shall continue unless varied by agreement between parties to this Agreement. Existing arrangements at the time of this Agreement are a three-shift operation working an average 36 hour week with RDO’s.
8.2	The procedure for Rostered Days Off is at Attachment 2.”

[23] Clause 4 of Appendix 2 provides as follows:

“From the commencement of the 2003 Agreement the following shall apply:
4.1	Work hours will be changed to cater for staggered starting and finishing times for shift and/or day work employees.
4.2	Relief arrangements shall be altered as necessary to cater for these revised working hours and revised breaks.
4.3	Smoke breaks and lunch breaks shall also be staggered to allow equipment to operate at optimum efficiency. Where appropriate, smoke break shall be combined (to allow 2 x 10 minute breaks to be taken as 1 x 20 minute break). Staggered lunch breaks shall be introduced so that employees may be required to take that break before the customary time, however, no employee will be required to work more than 5 ordinary hours without a break for a meal without payment of a penalty as prescribed by this Agreement.
4.4	Discussions will be held between the parties to resolve the issue of shift coverage by tradespersons.
4.5	Where an employee works 2 hours overtime before normal start time and 2 hours after normal finish time on any one day i.e. for a total of 12 hours including overtime, they will be entitled to an extra rest break of 10 minutes. This 10 minute rest break will generally fall within the second period of overtime but may be taken as agreed between the employer and employee affected provided that the employer shall not be required to make payment in respect of any time allowed in excess of 10 minutes.”

Other terms dealing with Saturday overtime and rostering

[24] Clause 39.3.2 of the Agreement provides that an employee required to work overtime on a Saturday shall be paid at the rate of time and half for the first three hours and double time thereafter, for such work.

[25] Clause 33.6 of the Food Award and clause 40.7 of the Manufacturing Award deal with the rate of pay and minimum engagement for overtime worked on Saturdays by day workers. It is relevantly consistent with the Agreement in the scenario under dispute.

[26] Clause 40.2 of the Manufacturing Award allows an employer to require an employee to work reasonable overtime in similar terms to section 62 of the Act, which also applies to employees covered by the Agreement. It provides that an employer must not require or request employees to work more than 38 hours per week unless those additional hours are reasonable. Employees can refuse a request to work unreasonable additional hours.

[27] Clause 40.3 of the Manufacturing Award and clause 33.2 of the Food Award provide that the assignment of overtime by an employer to an employee is to be based on specific work requirements.

Terms dealing with proposals for changes to hours of work

[28] A number of terms in the Agreement deal with proposals for changes to hours of work.

[29] Clause 6.2 of the Agreement provides for full time employment and states that:

“Working hours for full time employees shall be those existing at each local enterprise.

Arrangements for rosters will be developed by consultation in accordance with the agreed process.”

[30] Similarly, clause 6.5 of the Agreement provides for part-time employment, including that:

“Rosters for part-time employees shall be developed at each local site or existing arrangements established at individual sites shall continue. Changes to the roster shall only be made following consultation with and agreement of the employee and shall require one weeks notice in advance of the changed hours or days.”

[31] Clause 6.6 of the Agreement deals with shift work and provides that:

“Where the operations of a site require the introduction or variation of shift work or variation of hours of work such matters will be determined between the Company and its employees through the Employees Committee at each local enterprise.

Any difficulties arising from the implementation of this sub clause will be dealt with under Clause 12 Process of Change. Noting that Clause 12.3 can only operate where changes are permitted by the other terms of the NFA and the Award.”

Having regard to the title of the Agreement, I read “the NFA” as the (National Framework) Agreement.

[32] Clause 12 of the Agreement deals with the “process of change”. Under clause 12.3, changes proposed as part of continuous productivity improvement but not agreed between the parties can be implemented on a short term trial basis, “provided the changes are permitted by the terms” of the Agreement and the Awards.

[33] Clause 7 of the Agreement deals with wage increases and also provides as follows:

“During the period of the Agreement the parties agree to monitor each of the sites to ensure that continuous improvement in the site performance is occurring.

Evidence of this will be as follows:

(a) Positive movement in the site's KPIs.

(b) Agreement by all parties of changes required to improve the business.

(c) The resolution of issues through and by adherence to the disputes procedure.

(d) Satisfactory performance of the site training and consultative processes.

(e) Other issues that may be raised by Employees or the Company.”

[34] Clause 37 of the Agreement provides for “workplace flexibility”. It permits changes to the hours of work arrangements contained in the Agreement for award-covered employees to be made by majority agreement with relevant employees. Changes contemplated include changes to the starting and finishing times for shifts of work, and for maintenance employees, shifts of work that include weekend work. Any change made under clause 37 will “respect established site arrangements in relation to employee entitlements” and leave employees better off overall. Full consultation with relevant unions is required in developing and considering hours of work change proposals.

Terms dealing with meal and rest breaks

[35] Except in the site specific appendixes, the Agreement does not provide for meal breaks. Its only relevant contribution in this regard is clause 39.2 (providing for a meal allowance when overtime is worked) and clause 39.4, which provides as follows:

“Where an employee is required to work longer than 5 hours (6 hours by agreement) without a meal break, double time must be paid for all work done during meal hours and thereafter until a meal break is taken.”

[36] Appendix 2 to the Agreement deals with meal and rest breaks in clause 4 and in the context of the future introduction of 12 hour shift arrangements. I proceed on the basis that terms of Appendix 2 dealing with the “12 Hour Shift Arrangement” are not relevant to the dispute, because there is no evidence that any such arrangement has been introduced. However, clause 4.3 is relevant. Its terms are set out above.

[37] Clause 32 of the Food Award provides as follows:

“32.1

An employee must not be required to work for more than five hours without a break for a meal except in the following circumstances:

(a) in cases where canteen or other facilities are limited to the extent that meal breaks must be staggered and as a result it is not practicable for all employees to take a meal break within five hours, an employee must not be required to work for more than six hours without a break for a meal; or

(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the ordinary time rate without a meal break.”

32.2

The time of taking a scheduled meal break or rest break by one or more employees may be altered by an employer if it is necessary to do so in order to meet a requirement for continuity of operations. An employer may stagger the time of taking meal and rest breaks to meet operational requirements.

32.3

Subject to clause 32.1, an employee must work during meal breaks at the ordinary time rate whenever instructed to do so for the purpose of making good any breakdown of plant or for routine maintenance of plant which can only be done while the plant is idle.

32.4

Except as otherwise provided in clause 32 – Meal Breaks and except where any alternative arrangement is entered into by agreement between the employer and the employee concerned, the rate of 150% must be paid for all work done during meal hours and thereafter until a meal break is taken.”

[38] Clause 38 of the Manufacturing Award is largely in the same terms, except that it also provides for an additional 10 minute morning tea rest break for technical field employees.

[39] Clause 33.9 of the Food Award and clause 40.10 of the Manufacturing Award each deal with rest breaks during overtime. An employee must be allowed a rest break of 20 minutes without deduction of pay after each four hours overtime worked if they are to continue working. For day workers working overtime on Saturdays, the first rest break must be paid at the employee’s ordinary time rate. The employer and employee may agree to any variation of the rest break provisions “to meet the circumstances of the work in hand”.

Consideration

Is the Straight 8 preserved by clause 3.5 of the Agreement?

[40] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 5, a Full Bench of the Commission set out the relevant principles to be applied in the construction of enterprise agreements. These principles were revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Limited.6 The starting point is to consider the ordinary meaning of the words used, having regard to their context and evident purpose. The search is for the objective common intention of the makers of the Agreement, having regard to the language used to give effect to their agreement.

[41] It is agreed that the Straight 8 will only be preserved by clause 3.5 of the Agreement if it falls into the category of an “existing over Award conditions of employment”. As Nestle rightly points out, it will also only be preserved in this way to the extent that the said condition has not otherwise been varied by the Agreement. There is no contention, and no factual basis for a finding, that the Straight 8 has otherwise been varied by agreement between the Company and the Union.

[42] Depending on the context, the expression “conditions of employment” is capable of more than one meaning. 7 It could refer to the various conditions of employment established for employees by the statutory framework of the Act, the incorporated Awards and the Agreement itself. Alternatively, it might mean only the terms of the contract of employment (express or implied) of a particular employee. It might even have a broader meaning, incorporating some form of unenforceable benefit that is incidental to the contract of employment, although no such contention was put before me and I am not persuaded that is the correct approach in this case.

[43] The parties contend that the expression is a reference to the contractual conditions of employment of employees, and in particular, to an implied term of the contract of employment arising from the Straight 8, which they agree is an established workplace practice.

[44] The expression “conditions of employment” is not a reference to the statutory and industrial instruments that underpin the Agreement, because what is preserved by clause 3.5 are ‘over Award’ conditions. The purpose of preserving those conditions is to protect certain existing arrangements that are not otherwise dealt with in the Agreement (including by the wholly incorporated terms of the Food Award and the Manufacturing Award). In that respect, it must also be taken to mean conditions of employment other than those set by the Agreement. The Agreement is made in a statutory context that prevents it from excluding the National Employment Standards while operating to the exclusion of other (unincorporated) industrial instruments as well as certain State and Territory laws. In clause 3.5, the meaning of “conditions of employment” is not those conditions provided for employees in a statute, modern award or enterprise agreement.

[45] Read in context, the reference to “conditions of employment” in clause 3.5 is a reference to employee’s contractual conditions of employment, over and above those provided for in the Award and the Agreement. It is consistent with a similar reference in clause 6.1 of the Agreement deals with “Contract of Employment” and requires the “terms and conditions of employment” of part time and casual employees to be no less than those contained in the Agreement. The task is to identify those conditions of employment that are preserved by clause 3.5, and in particular, whether the Straight 8 is one of them.

[46] The word ‘existing’ gives the point in time for the making of the assessment. Any “over award condition of employment” that did not exist at the time the Agreement was made on 6 May 2016 will not fall within the description. It follows that employees employed by Nestle after the Agreement was made cannot have had the terms of their contract of employment with Nestle preserved by clause 3.5. For those employees, no such contractual terms existed.

[47] For employees employed prior to 6 May 2016, the position is less clear. According to the agreed statement of facts, it was typical before the Agreement commenced for some maintenance employees to carry out repairs or maintenance by working the Straight 8 on Saturdays as overtime, and also to assist with production on Saturdays from time to time. Kingsley Rapiditse, a maintenance fitter at Campbellfield, gave evidence that since approximately 2010, he has worked the Straight 8 on Saturdays 8, but it is not clear whether that was the case every weekend or only when required. The Maintenance Manager, Dean Hogan, gave evidence is that it was “sometimes”, “depending on production requirements” and that a “typical Saturday” required between 0 and 12 maintenance workers.9 There is no reason to doubt either version of events. The evidence of Mr Rapiditse and Mr Hogan can be read sensibly together to arrive at a conclusion that Saturday overtime, when it occurred, involved the Straight 8, but that employees were not required to work overtime every Saturday.

[48] I do not rule out the possibility that the Straight 8 became an implied term of employee’s contracts of employment prior to the making of the Agreement, such that it was preserved by the operation of clause 3.5 of the Agreement. The difficulty is that none of the relevant contracts of employment are in evidence. On the material before me, there is no sufficient basis from which to form a conclusion that there was such a term, either express or implied.

[49] I am not satisfied that the Straight 8 is preserved by clause 3.5 of the Agreement.

Is the Straight 8 preserved by clause 8.1 of Appendix 2 to the Agreement?

[50] Clause 8.1 of Appendix 2 to the Agreement is set out above. It is headed Hours of Work. It sets the ordinary hours of work for Campbellfield, “based on a 36 hour week”. It permits ordinary hours of work to be worked either as a 36 hour week or an averaged 36 hour week, including a rostered day off, and provides that “existing arrangements in place at the time of the Agreement shall continue unless varied by agreement” between the parties to the Agreement. The phrase “existing arrangements” is defined as a “three shift operation working an average 36 hour week with RDO’s.”

[51] Clause 8.2 of Appendix 2 provides context for the interpretation of clause 8.1. It deals with the procedure for rostered days off, by reference to Attachment 2 to the Agreement. Clause 1 of Attachment 2 sets out the ‘rotational’ system of rostered days off, where days off are taken during the Monday to Friday working week when ordinary hours would otherwise be worked.

[52] A separate part of Appendix 2 deals with the introduction of 12 hour shift arrangements “over 6 days working ordinary time” from Monday to Saturday. If the 12 hour shift arrangement is introduced, Nestle has agreed to retain employees seeking to remain on the 8 hour, Monday to Friday, shift roster. In a similar vein, clause 37.2.1 of the Agreement contemplates future changes to hours of work for maintenance employees for “shifts of work that cover more than five day, Monday to Friday, period, and may include either Saturday or Sunday or both.”

[53] In my view, clause 8.1 has a plain meaning and deals only with ordinary weekly hours of work. It preserves a three shift (8 hour shift) operation at Campbellfield, worked over an average 36 hour week with rostered days off from Monday to Friday. That arrangement can be varied, but only by agreement between the parties.

[54] Clause 8.1 does not deal with the working of Saturday overtime under the Agreement. It does not preserve or preclude the working of the ‘Straight 8’.

Does the Agreement otherwise require Nestle to maintain the Straight 8?

[55] There is nothing in the body of the Agreement or Appendix 2 that deals expressly with how weekend overtime hours are to be arranged. The incorporated Awards contain some guidance, by permitting Nestle to require maintenance workers to work reasonable overtime and to assign overtime based on “specific work requirements”.

[56] Clause 6.2 of the Agreement provides that “working hours for full time employees shall be those existing at each local enterprise” and that “arrangements for rosters will be developed by consultation in accordance with the agreed process”. The evident purpose of clause 6.2 is to provide for, and define, full time employment. It sits alongside terms providing for part-time employment, casual employment and temporary employment, as well as shift work, crib breaks for overtime worked before the start of a shift, labour review processes relevant to the mode and method of employment as well as minimum rates of pay for apprentices and maintenance contractors.

[57] What constitutes “each local enterprise” for the purposes of clause 6.2 is not defined and while the Agreement only applies to one enterprise (Nestle) it applies at three separate sites. In my view the reference to ‘each local enterprise’ in clause 6.2 is plainly a reference to each of the three sites covered by the Agreement. For present purposes, it means Campbellfield.

[58] Clause 6.2 provides that working hours for full time employees will be those existing at each local enterprise. Again, the word “existing” points to the preservation of arrangements in place at the time the Agreement was made. The phrase “working hours” might encompass both ordinary hours of work and overtime. In the context of clause 6.2, however, it has a particular meaning because its purpose is to seek to preserve a certain way of working at the relevant time. It is necessarily general because it applies in different ways at each of the three separate sites. The actual hours of work at each site are set out in the relevant site specific appendix. Read in that way, clause 6.2 refers to the working hours defined and preserved by the appendixes. Just as Appendix 2 deals with hours of work and breaks at Campbellfield, Appendix 3 deals with hours of work and meal breaks at the Broadford site as Appendix 4 does for the Blacktown site.

[59] Clause 6.2 must be read together with Appendix 2, which prevails over substantive terms of the Agreement to the extent of inconsistency. Terms that prevail include clause 8.1 of Appendix 2, which for the reasons set out above, defines and preserves the method of working ordinary hours of work at Campbellfield at the time the Agreement was made.

[60] Clause 4 of Appendix 2 also prevails over clause 6.2 to the extent of inconsistency. It deals with shift operations and “working hours generally”. It provides for work hours to be changed to cater for staggered starting and finishing times from the commencement of the 2003 Agreement. The historical reference suggests that such changes may have already been introduced at the time the Agreement was made, but there is no evidence of that before me. Even so, the clause has continued operation in that hours of work are to cater for staggered shifts as well as staggered smoke and lunch breaks “to allow equipment to operate at optimum efficiency”. The introduction of staggered lunch breaks is mandated, and employees may be required to take their break “before the customary time”. Working for more than 5 ordinary hours without a break for a meal attracts a penalty. In this regard, Appendix 2 prevails over the Award prohibition on working more than 5 or 6 hours without a break for a meal.

[61] As noted above, the Agreement also contains various references to changes to hours of work being developed through consultative processes at the local level, applying the processes set out in the Agreement. Commitments of that kind in clauses 6.2 and 6.5 apply to the Straight 8 if Saturday overtime forms part of the established day or shift roster, but there is no evidence of that before me and I am not satisfied that it does. The commitment in clause 6.6 is relevant to the Straight 8 because it contemplates a process for dealing with any variation in hours of work for shift workers. Clause 7 of the Agreement contemplates that the parties will work cooperatively toward agreement on changes required to improve the business. In my view, clause 37 is not relevant to this dispute, because it applies to hours of work arrangements “as incorporated into” the Agreement and the Agreement does not prescribe hours of work arrangements for weekend overtime.

[62] In summary, the terms of the Agreement dealing with the working of Saturday overtime are these:

1. Nestle can require and assign reasonable overtime based on its specific work requirements. An employee can refuse to work overtime if it is unreasonable.

2. Working hours must cater for staggered start and finish times and staggered breaks to allow equipment to operate at optimum efficiency.

3. If overtime is worked, 20 minute paid rest breaks are to be provided each four hours. An employer and employee may agree to different rest break arrangements to meet the circumstances of the work in hand.

4. Nestle can determine the time of taking breaks. There is no term that specifies how long a scheduled meal break must be.

5. Penalties apply to work by an employee who is required to work more than 5 hours (6 hours by agreement) without a meal break.

6. Where site operations require the variation of hours of work for shift workers, such matters will be determined between Nestle and its employees through the Campbellfield employees committee. Any difficulties arising from the implementation of such variations are to be dealt with under clause 12, as has occurred in this case with the matter now before the Commission.

[63] Within these guidelines, there is no term of the Agreement that requires or prevents the working of the Straight 8, as long as paid rest breaks are provided each four hours and the requirement to work overtime is relevantly reasonable.

Conclusion

[64] For the reasons set out above, the answer to the question:

“Would Nestle contravene the Agreement by requiring that maintenance employees working under the terms of the Agreement at Campbellfield cease to work Saturday overtime over 8 hours with no unpaid midday/mid-shift break and instead work such overtime over 8.5 hours with a 30 minute unpaid midday/mid-shift break?”

is no, as long as the requirement is reasonable for the purposes of clause 40.2 of the Manufacturing Award and section 62 of the Act.

[65] The dispute is determined accordingly.

COMMISSIONER

Appearances:

B Terzic and A Thomas for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

L Izzo and S Cahill for Nestle Australia Limited

Hearing details:

2019.

Melbourne:

February 6.

Printed by authority of the Commonwealth Government Printer

<PR706355>

 1   AE419595

 2   Statement of Agreement Facts, 14 January 2019

 3   MA000073

 4   MA000010

 5   [2014] FWCFB 7447

 6   [2017] FWCFB 3005

 7   Public Service Association (SA) Inc v State of South Australia & Ors (2012) 113 SASR 49; (2012) 221 IR 298; [2012] SASCFC 66 at [49]-[50] citing T C Whittle Pty Ltd v T&G Mutual Life Society (1977) 138 CLR 650

 8   Exhibit 5

 9   Exhibit 6