Employees of AWX Pty Ltd v AWX Pty Ltd T/A AWX

[2013] FWC 5128

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Employees of AWX Pty Ltd
v
AWX Pty Ltd T/A AWX
(AG2013/5788)

Meat Industry
COMMISSIONER SIMPSON	BRISBANE, 9 AUGUST 2013

Application for termination of the AWX Pty Ltd Employee Collective Agreement - Meat Industry Employees 2006-2009 - Authority to Act - Economic Impact - Validity for Ballot Process - Employers Other Industrial Arrangements - Evidence concerning support and resettlement of employees on Humanitarian Visas - Application Granted

BACKGROUND

[1] On 26 March 2013 an application was filed listing 28 applicants and the Australasian Meat Industry Employees Union (AMIEU) as their representative made under subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 as it applies under item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“TPCA Act”) for approval for termination of the AWX Pty Ltd Employee Collective Agreement - Meat Industry Employees 2006 - 2009 (“the Agreement”). The Agreement was made under the repealed Workplace Relations Act 1996. It was lodged with the Employment Advocate on 22 December 2006 and it nominal expiry date was 23 December 2009. The Agreement continues to operate as a collective agreement-based transitional instrument pursuant to Item 2(5) (c)(v) of Schedule 3 of the TPCA Act.

[2] The matter was listed for a directions hearing on 22 April 2013. I adjourned the matter for a time on that day in order to give the parties an opportunity to confer and seek to reach agreement on a set of directions. The Respondent raised concerns in regard to logistical issues arising from the particular circumstances of this case where the Commission is required to consider the views of employees in regard to the application, and the employees are predominantly refugees under humanitarian visas, some with limited or no English language and who are engaged by an employer who is a labour hire company who does not have control of the worksites where they are employed as they are controlled by the ‘host employer’. 1

[3] The AMIEU argued that a postal ballot would be the most efficient way to assess the views of employees in circumstances where the workplace was spread across a range of sites across the country as compared to stand up ballots at each site. 2 The parties agreed to have a ballot agent conduct a ballot and to provide to the ballot agent respective yes and no cases to be reduced to 400 words. The only area of disagreement was whether the ballot be a stand up or postal ballot.3 I ruled that the ballot proceed as a secret postal ballot.4

[4] I included at point 5 of the initial directions a requirement that the Respondent notify the Applicant of any meetings it intended to hold, which were not conducted on a Teys owned or operated site, with employees for the purpose of explaining the ballot process and its position on the ballot, and that the Applicants be given a reasonable opportunity to participate in such meetings and explain to employees its position on the ballot. The genesis of the inclusion of this point in the directions was that the Respondent indicated its preference for holding discussions at a local level with employees and referred to right of entry issues the AMIEU had been having with the site owner and a preparedness of the Respondent to have off-site meetings on employee’s days off. 5

[5] The AMIEU did not support the making of directions that included a requirement for the conduct of site meetings but requested that if the employer intended to hold such meetings they be notified and given an opportunity to be involved. 6 This issue is relevant because the Respondent raised in the course the hearing that meetings subsequently conducted by an AMIEU official with employees of the Respondent without the participation of a representative of the Respondent were a breach of the spirit of the directions order. I do not accept this as for reasons set out above the direction on that point placed an obligation on the Respondent because of its stated intention to hold such meetings, not the Applicants.

[6] On 26 April 2013 I proceeded to issue directions setting out a process for a secret ballot and the filing of statements and submissions. On 8 May 2013 the Respondent wrote to the Commission advising that the proposed ballot agent, being the Australian Electoral Commission would be unable to post out the relevant material in keeping with the timetable and an issue had arisen between the parties regarding the Respondents statement. I listed the matter for 10 May. Some delay and greater cost in conducting the ballot occurred on the basis that the parties were unaware that in order to protect the integrity of the process the AEC insists on conducting its own language translations of material. 7 The appointment of the AEC and amended directions were settled by agreement between the parties at this hearing and I issued amended directions on 13 May8 to accommodate requested changes for further time for the conduct of the ballot and the filing of statements and submissions.

[7] On 7 June 2013 the Respondents sought an extension for the filing of material. An extension was granted and the Respondents material was to be filed by Wednesday 12 June, and the Applicants by Thursday 27 June. On 28 June the Respondent sought orders requiring four persons to attend which were granted, although the Respondent later advised the Commission it only required 1 of those four to attend and give evidence.

[8] The matter was listed for hearing of the substantive matter on Thursday 4 and Friday 5 July 2013. At that hearing the Applicants were represented by Mr Dalgleish of the AMIEU and the Respondents by Mr Murdoch Queens Counsel. At the commencement of the hearing the Respondents raised three preliminary matters. Firstly, a matter concerning the 28 authorities of persons named as the applicants and the standing of those persons. Secondly, the Respondent advised that it had requested an adjournment from the Applicants representative in order to obtain from an economist expert evidence to respond to material put in the statement of Mr Norris. Thirdly, the Respondents raised concerns regarding the Declaration of Results from the Australian Electoral Commission ballot. I will deal with each of these points in turn below.

CONSIDERATION

[9] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[10] Subdivision D of Division 7 of Part 2-4 of the Act reads as follows;

Subdivision D—Termination of enterprise agreements after nominal expiry date

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

Authorities to act

[11] Attachment LGN 4 to the statement of Lee Norris 9 was said by him to be the authority of the AMIEU to act on behalf of 28 individuals applicants named as such in the application. The attachment LGN 4 actually included copies of 31 forms titled ‘Authority to Act’. The first six of those included a handwritten date above where the form had been signed. The Respondent criticised the authorities as they were not witnessed, there was no notation as to whether an interpreter had been engaged for the purpose of interpreting the document, and most of them were undated. The Respondent called for the original forms to be provided.10 The Applicants representative provided a bundle of documents to the Respondent, some of which were originals and some not. The bundle did not correlate completely with the forms at Attachment LGN 4. Mr Dalgleish advised that the authorities had been completed by employees at the Tamworth and Wagga Wagga sites.11 He advised the forms were collected by Mr Mark Perkins from the New South Wales Branch of the AMIEU, and Mr Grant Courtney and Hongling Ji, both from the Newcastle Branch of the AMIEU.

[12] The Respondent provided a document setting out five tables listing the 28 persons named as applicants in the application, a comment whether they were still employees had resigned or were ever employed, their nationality, native language and view about their level of English. 12 I made a ruling that I was satisfied to proceed on the basis of submissions and material available at that point that the Applicants representative had at least one authority to act in the matter and the position concerning all of the authorities could be dealt with in the course of the matter.13

[13] Mr Dart gave evidence that the Afghani names provided on the authorities were from the Wagga Wagga site, or at least the majority of them. 14 Mr Dalgleish foreshadowed on Thursday 4 July that the Applicants would be calling AMIEU Organiser Mr Mark Perkins to give evidence about the meetings he conducted with a translator in order to obtain the authorities.15

[14] Meg Giles, the Workplace Relations Manager of the Respondent gave evidence that of the 28 employees named as applicants 5 of those were no longer employed by the Respondent, and that there was no record of 3 others having worked for the Respondent. 16

[15] Mr Norris was asked why he did not make provision on the form for it be witnessed. He said he didn’t think it was necessary. 17 Mr Norris was asked why the dates on many of the forms were left blank and he said he was advised they were done more or less on the same day.18 Mr Norris said he understood Mr Perkins was involved in obtaining the bulk of the Hazari Afghanistani authorities.19 Mr Norris said he received the authorities through the mail and typed the names that he had on hand from authorities received in the mail and lodged the application.20

[16] Mr Norris said a Memorandum was sent from Mr Crawford the Secretary of the Queensland Branch regarding the Agreement. 21 The Applicants tendered the minutes of the Federal Executive of the AMIEU held on 7 and 8 March 2013 which recorded a report that Mr Courtney had provided authorities from the Tamworth site to support the application, and that Mr Perkins was intending to meet with employees of the Respondent at Wagga for the same purpose.22

[17] Mr Dalgleish presented a copy of the list of applicants with numberings in order to reconcile that list with the authorities provided in the attachment to the statement of Mr Norris. He conceded that the first, second and fourth fifth and sixth authorities of Karem Bakhash Alizadah, Mohummad Juma Rajabzeda, Wei-Rong Liao, Lai-Pin-He or Chen Chi Fei were not pressed as they were never on the list of applicants and they were included in the bundle of authorities by Mr Norris in error as these authorities were provided after the application had been filed. 23

[18] Mr Dalgleish explained that the authorities provided by Chien Ting Chao, Chou Chin-Huan and Ng Hon Wang were not in the bundle attachment to the statement of Mr Norris but were in the material provided that day. 24

[19] Mr Norris provide a copy of an email dated 18 February 2013 to Mr Donzow and Mr Perkins attaching a copy of the authority he was seeking assistance from the New South Wales and Newcastle Branch officials in having completed by employees of the Respondent. 25 He said other discussions occurred with officials about the issue before and after the sending of the email.26 A further email was provided from Mr Courtney of the Newcastle Branch to Mr Norris dated 4 March 2013 attaching copies of signed authorities.27 Mr Norris said he had held extensive discussions with Mr Courtney and Ms Hongling Ji, (who he said spoke four languages) in January 2013 about obtaining authorities.28 He said Ms Hongling targeted the Tamworth site.

[20] Mr Norris agreed the other authorities came from Mr Perkins. 29 Mr Norris said he had verbal advice from New South Wales Branch officials that they had a successful meeting and authorities were on the way which came in one batch in the mail.30

[21] Mr Norris conceded that the authority marked with the name ‘Asmatali’ should not have been included in the bundle. 31 Whilst many of the authorities are undated it is clear that with a few exceptions the Applicants representative accepted should be excluded, they were provided to Mr Norris before the application was filed on 26 March 2013.

[22] Mr Perkins, an organiser with the New South Wales Branch of the AMIEU gave evidence that he was responsible for members at the Teys Australia plant at Wagga Wagga. He said in early March 2013 he was contacted by Daniel Harris from the Wagga Muilticultural Centre concerning migrants working for the Respondent at the Teys plant who had approached him about their employment conditions. 32

[23] Mr Perkins said a meeting was arranged for a Saturday morning. Subsequent to the discussion with Mr Harris he said he spoke to Mr Crawford and Mr Norris of the Queensland Branch and was made aware of the application to terminate the Agreement and the need to get employees to provide authorities in order for the AMIEU to bring the application. 33 It was put to him during cross examination that he had received an email on 18 February from Mr Norris concerning the application. He said he did not do anything about it at the time because he had no contacts at the site at that time.34

[24] Mr Perkins described a meeting he attended on Saturday 16 March at the Multicultural Centre which was also attended by Daniel Harris and an interpreter called Naseem who he was told could speak Farsi and two Afgani languages. He said there were about 40 in attendance. He said Naseem interpreted for him at the meeting as he spoke to the workers including an explanation of the application. He said he distributed the authorisation forms. He said he was asked questions which he answered. He said many of the workers signed the authorities, some took them away and others asked for a form for their friends. 35 He said he personally saw the majority of the forms signed.36

[25] Mr Perkins said after the meeting he took the authorities back to the Sydney office and forwarded the signed authorities to the Queensland Branch. 37 38

[26] I have considered all of the evidence going to this matter, particularly that of Mr Norris and Mr Perkins and I am satisfied that despite some deficiencies in the manner in which the authorities were provided (many forms were undated and were not witnessed) the AMIEU was given authority to act on behalf of 24 employees of the Respondent prior to filing the application. I have excluded from that number authorities provided by Karem Bakhash Alizadah, Mohummad Juma Rajabzeda, Wei-Rong Liao, Lai-Pin-He or Chen Chi Fei and Asmatali for reasons set out above. I have included in the 24 authorities provided by Chien Ting Chao, Chou Chin-Huan and Ng Hon Wang as the evidence was that they had provided authorities to the AMIEU, although this was not initially provided in an attachment to statement of Mr Norris. I have excluded persons named in the application that Ms Giles said she could find no record of them ever having been employed by the Respondent. I have included in the number employees who resigned after the date of filing the application.

Economic Evidence

[27] The Respondent said at the commencement of the hearing day on 4 July that it wanted to bring its own expert economic evidence in response to the economic evidence in the statement of Mr Norris contained in paragraphs 101 through to 142. The Applicants representative rejected the Respondents request for an adjournment before the hearing. The amended directions order required that the Applicants statements and submissions be provided to the Respondent by Monday 24 June 2013. The directions were amended again following a request from the Respondent for more time. This led to a consequential extension for the Applicants to Thursday 27 June which was complied with by the Applicant.

[28] I ultimately agreed to allow the Respondent to file further material on a limited basis that it was only in response to the economic arguments in the statement of Mr Norris, and on the basis that the hearing proceed as scheduled with the further material to be filed within two weeks. I accepted the Respondents submission that the manner in which the directions were settled (as agreed between the parties) required the Respondents to file their material first which gave them a limited opportunity before the hearing to raise the matter of responding to the Applicants economic evidence which was provided the week before. 39

[29] Paragraphs 101 to 142 of the statement of Mr Norris are the relevant parts of his statement for the purpose of the additional material filed by the Respondents which was in the form of a nine (9) page report prepared by Dr Selwyn Helibron, a Director of SG Helibron Pty Ltd who specialise in economic and policy consulting. The report was titled “Economics of the meat industry - review of the extract from Statement of Lee Norris” and was admitted into evidence. 40

[30] Mr Norris said contrary to popular themes the industry is not shrinking and pointed to statistics that the national slaughter of cattle and calves is predicted by the Australian Bureau of Agricultural and Resource Economics (“ABARES”) to increase. 41 Mr Helibrons report discussed the constraints on Australian meat processors who depend on export markets in being able to pass on increases in costs, and pointed to variability and contractions in the value of exports measured in Australian dollars.42

[31] Mr Norris referred to significant productivity improvements achieved in the industry through rationalisation of plants in the 1990’s and gave the example of the daily kill level at the JBS Australia Pty Ltd plant at Dinmore compared to the early 1990’s delivering returns on fixed assets, reduced unit costs and economies of scale.

[32] Mr Norris said the economies of scale were one of the reasons Australian meat processors can offer processed beef more cheaply than for example the local Indonesian market, which makes a myth of the argument that Australia cannot compete due to labour costs. He also referred to the United States processors that have access to a free trade agreement with Korea providing an advantage against Australia however the U.S processors are still unable to compete with Australian pricing. Mr Norris also said any gains in labour costs for Australian producers would be lost by accelerated tariff and quota barriers. Dr Helibron said price competitiveness can reflect many different factors and can change from time to time. He pointed out that the comparisons made by Mr Norris did not compare like with like in that U.S beef is almost entirely grain fed. He also said the argument of Mr Norris concerning trade barriers swallowing up any labour cost competitiveness did not take account of beef trading partners being members of the World Trade Organisation, which means tariffs and quotas are generally bound.

[33] Mr Norris also referred to the Australian industries “clean and green” image compared to its competitors in regard to issues such as Foot and Mouth disease, and BSE (Mad Cows disease). Dr Helibron indicated this advantage only applied in relation to markets that demand freedom from these diseases, and such freedom can be lost and regained intermittently.

[34] Mr Norris said livestock prices accounted for 70% of the operational expenditure of meat processing companies and this was one of the most significant factors affecting competitiveness. This can be affected by climatic conditions. He referred to ABARES forecasts that indicate it is expected livestock prices will continue to remain favourable. Dr Helibron acknowledged cattle prices were a major proportion of total processing costs but said this was a factor beyond the control of processors and that a confidential survey covering more than half the industry indicated more than 45% of non-livestock costs were attributed to labour costs.

[35] Dr Helibrons report concluded as follows:

“Fundamentally, the fact that livestock prices have been depressed in recent months as a result of drought conditions, that world prices for beef have been reasonably firm in foreign currency, and that profitability of processors might have increased accordingly, does not warrant a conclusion that this situation is sustainable longer term.

Given the inherent volatility in livestock prices and all the other factors that can serve to adversely impact the profitability of meat processing (notably including exchange rates), and given the perpetually low margins prevailing in the industry, processors would be justified and economically prudent to save the benefits of short term positive margins for a return to adverse conditions.

This could be said to reflect not acceptance and perpetuation of a ‘doom and gloom’ scenario, but rather a prudent and rational perspective on the fundamental conditions prevailing in the industry.”

[36] To some degree the evidence of both Mr Norris and Dr Helibron seek to make predictions of potential future economic circumstances the industry may be confronted with based on various sources of evidence drawn from economic and statistical reports. I have given consideration to the evidence of Mr Norris and Dr Helibron concerning economic factors affecting the meat processing industry but I do not believe it necessary to discuss all of that material here. Mr Norris generally suggests the industry is perpetually seeking to paint a gloom and doom scenario which is not borne out by the facts.

[37] The report of Dr Helibron warns of the need for caution, and presses the view that it cannot be assumed current levels of profitability are sustainable in the longer term given volatility in factors that can impact on meat processors and that it is rational and prudent for meat processors to be prepared for less favourable times.

[38] I accept that the meat processing industry is more exposed to potential for volatility caused by external factors than many other industries. However I am satisfied the economic evidence regarding the current state of the meat processing industry, and potential for future fluctuations in it, does not give rise to such a level of concern that it would be contrary to the public interest for me to terminate the Agreement because of that evidence.

Result of Ballot

[39] The declaration of results issued on 3 June by the AEC were that 59 people returned ballots out of a total eligible 475 employees, of which 41 voted yes. Ballot papers returned undelivered for the AEC ballot were 53, and ballot papers not returned were 359. The ballot turnout was 12.42%. The Respondent claimed the process was a failure. 43 I made a ruling in the course of the matter in response to the raising of the low number of ballots cast as a preliminary point by the Respondent, that I did not intend at this late stage to revisit this matter by allowing further time for parties to go back out to gain further information in regard to the requirements of s. 226(b)(i) in so far as it related to the views of employees.

[40] My ruling was on the grounds that the approach that had been adopted in the matter of arranging for the conduct of a secret postal ballot by the Australian Electoral Commission independent of both parties at considerable expense that included the provision of language translations of both the competing ‘yes’ and ‘no’ cases in the many different languages of the employees was sufficient, and to further delay the matter would be inconsistent with my obligations under s.577 of the Act.

[41] I compared the submission of the Respondent with the approach adopted by the Commission for the purpose of approval of enterprise agreements that involves the daily and routine approval of enterprise agreements where the ballot result demonstrates a majority of employees voting yes satisfied the requirement at s.182 (1) for the making of an agreement despite that majority who voted regularly being a minority of employees. 44 It is worth noting that Subdivision D of Division 7 of that Act falls with Part 2-4. The requirement for the making of an agreement and its subsequent approval in Division 4, or for variation or termination of an in-term agreement in Division 7 does not require the support of a majority of employees; only a majority of those who vote subject to other legislative requirements for proper consultation. I do not accept that the ballot as conducted by the AEC was a failure based on the number of ballots returned.

[42] Mr Norris also gave evidence that of the 475 employees balloted in respect of the application, he estimated only approximately 260 are actually supplied to host employers under the strict terms of the AWX Agreement. 45 The Respondent conceded that employees covered by the AWX agreement, at Teys Australia in Central Queensland and Brismeats were being paid site or award rates rather than the Agreement rates.

[43] Meg Giles, the Workplace Relations Manager of the Respondent said in her statement that on or around 13 May the Respondent notified its employees that a vote would be taking place regarding the Agreement and most employees were informed face to face as they were entering or existing work. She said translators were on hand to ensure employees understood what was happening, and a handful of employees were contacted by phone. 46

[44] She said further that on 22 May the Respondent followed up with all employees on the issue of the vote, either by telephone or email. She said the majority of Korean and Taiwanese employees prefer to be contacted by email so emails were translated into relevant languages for those employees. She said on 21 May the AEC sent out envelopes containing the Respondents Statement of Support, the Union’s Statement and the ballot paper. 47 Translations of the information were provided in Korean, English, Simplified Chinese, Traditional Chinese, Filipino, Japanese, Burmese, Sinhalese, Tamil, Hazaragi, Dari, Farsi, Urdu, Malay and Hindi.

[45] Mr Norris also gave evidence that according to material he obtained from the Office of the Fair Work Ombudsman at the time the Agreement was approved it only covered 42 employees, 30 of whom did not have English as their first language which means that more people voted in the ballot to terminate the Agreement then the total number of employees who were employed under it at the time the Agreement was first made in late 2006.

[46] The Respondent in submissions referred to Section 226(a)(i) and the mandatory requirement to have regard to the views of employees. The Respondents referred to a decision of Commissioner Lee in Victorian Canine Association T/A Dogs Victoria 48and particularly paragraph 31 of that decision. The circumstances the Commissioner was addressing in that part of his decision dealt with an individual employee who would be disadvantaged in their terms and conditions by the termination of an agreement and who opposed the application. Those circumstances can be distinguished from this case in that there is no evidence before me that any employees will be at a disadvantage in their terms and conditions of employment compared to those applying under the Modern Award should the application be successful. His ultimate decision to decline the application to terminate was also based on a concern that it would alter the status quo in bargaining. No such concern exists in this case as no bargaining is taking place.

[47] The Respondents also referred to Skye Mitchell & Ors v Skilled Communications Personnel Pty Ltd 49 where only 4% of employees supported the application. In that matter there were approximately 430 employees to whom the Agreement applied and these employees worked at 19 sites, one of which was the site at which 10 individual applicants who supported the application were employed. Commissioner Roe dismissed the application for termination in that matter for reasons including that the 10 employees represented less than 4% of employees. His decision does not refer to any other evidence before him concerning the views of the remainder of employees across the other 18 sites. He also took into account the views of the union party to the Agreement the NUW, and of the Employer who both opposed the termination of the Agreement. Further he took into account submissions from the NUW and the Employer that new collective agreements had been negotiated for some of the employees previously covered by the agreement in question and that there was an intention and a commitment to negotiate new collective agreements for the remaining employees including the 10 applicants. The circumstances in Skye Mitchell can be distinguished from this matter for these reasons and also because, unlike in that matter, all the employees affected in this matter have been given an opportunity to participate in an independently run secret ballot conducted by the AEC.

[48] Following a low turnout in the ballot Ms Giles instructed supervisors at the various sites to speak to employees and ascertain why a minority voted. She said when doing so each supervisor had each employee write in a table containing their name, position/level, location and reason for not voting. She attached to her statement the tables she received from the various work sites. The supervisors themselves were not called to give evidence. She conceded the surveys were not translated into employee’s languages for the employees and were completed in English. 50 51 She did say translators were present although there was no direct evidence from translators. It was put to her in cross examination that the surveys were unbalanced in the way they were framed, and that the questions were all leading questions with built in assumptions. When it was put to her that the survey was not confidential she said employees did not have to participate.52

[49] The first question in the survey stated “If I was unhappy with my terms and conditions I would have voted”. The second stated, “I did not care either way.” It is interesting to note that many of the survey responses appear to come from the Brismeats and Central Queensland Teys sites, at which according to the evidence the employees have not being paid under the Agreement since last year, but are being paid at under the Modern Award or site conditions in any event. Under the circumstances it may well be such employees formed the view that the outcome of this matter had no direct bearing on them as they were already receiving the outcome that the application sought.

[50] Mr Perkins said he held a meeting with employees of the Respondent on 25 May 2013 to update them on the application and to let them know about the secret ballot by the AEC. He agreed that he had asked Daniel Harris to arrange the meeting. 53 He said this meeting was held at the Multicultural Centre, was also attended by Daniel Harris and a different interpreter, Niamat Mehtes. Mr Perkins said he was told Mr Mehtes could speak Farsi and an Afghani language. He said he spoke to workers and answered questions and conducted a similar meeting that day at the local TAFE with employees of the Respondent which was also attended by the interpreter. 54

[51] Mr Perkins said in cross examination he extended an invitation to Meg Giles of the Respondent to attend the meeting. He accepted that he did not extend the invitation until 10.03pm by email the night before the meeting. 55 56 He also said he was not invited to any meetings with employees by the Respondent.57 Mr Perkins said a couple of employees had ballot papers with them at the meeting but that they did not fill them out in the meeting.58 The Respondent sought to criticise the conduct of Mr Perkins because he extended an invitation to Ms Giles to attend the meeting at the cultural centre at a time when he would have known she would be unable to attend at such short notice. Having read the email he sent to her59 and hearing his evidence I am not convinced his motivation was to prevent the Respondent being represented. The invitation was extended to anyone from the Respondent, and as the Respondent had a presence at the plant in Wagga Wagga it is conceivable he may have thought a local representative of the Respondent may have been available at short notice. In any event there was no compulsion on the AMIEU to extend an invitation to the Respondent. As discussed at paragraph five (5) in this decision the FWC directions including in regard to the conduct of the ballot placed a requirement on the Respondent not the Applicant for reasons dealt with earlier. Further there is no evidence the Respondent invited the AMIEU to be present when it arranged to speak to its employees on 13 May about the ballot on entering and exiting work.

[52] The criticisms levelled at the manner in which the survey was conducted by the Respondent by the Applicants representative during cross examination of Ms Giles are valid criticisms. They were summarised in closing submissions. 60 Based on those criticisms I do not intend to accord the survey significant weight as a basis not to rely on the ballot conducted by the AEC.

[53] The evidence indicates efforts were made by the AMIEU and the Respondent over and above the ballot process itself including the distribution of explanatory material in all of the relevant languages in order for employees to consider the competing arguments before voting. The Respondent had face to face discussions on 13 May with interpreters present as referred to above to explain the process. Ms Giles said the Respondent followed up employees by phone or email on 22 May. Certain employees were provided email based on their known preferences and the Union separately arranged face to face meetings at certain sites. Part of the explanation for the low number of ballots returned may well be as discussed above that the outcome of the ballot would have no direct bearing on the wages and conditions of many employees being balloted and hence saw no reason to participate. For all of the reasons set out above I am satisfied that the results of the secret ballot conducted by the AEC are sufficient for me to be capable of taking account of the views of the employees for the purposes of this application.

The Agreement

[54] The Respondent called Mr Cameron Dart, a Director of the Respondent who explained that the Respondent supplies labour to the meat industry but also to other industries. 61 He described the meat industry as a price taker not a price maker. He said the Respondent predominantly supplied labour to meat processing facilities in regional, rural and remote areas.62

[55] Mr Norris attached to his statement documents obtained through a freedom of information request to the Fair Work Ombudsman 63 that disclosed that 42 employees who were all casual were employed by the Respondent when the Agreement was first made, and that 30 of the 42 had a language other than English as their first language.64 He said that the Agreement was made at a time when it was possible under s.354 of the WR Act to completely exclude the operation of “protected” award conditions such as penalty rates and allowances.65

[56] Mr Norris said the AMIEU became aware of the existence of the agreement in August/September 2012 when industrial issues arose at both the Brismeats site at Ipswich, and the Teys Australia Central Queensland site at Rockhampton.

[57] The Secretary of the AMIEU Mr Crawford wrote on 14 November 2012 via email 66 to Mr Dart of the Respondent seeking a meeting for the purpose of discussing the entering of an enterprise agreement to replace the Agreement. Mr Dart responded via email67 indicating the Respondent was happy with their current industrial arrangements and had no intention to enter negotiations for a new agreement. A subsequent meeting occurred on Monday 26 November 2012 where Mr Dart’s position remained unchanged.68 69

[58] Mr Dart gave evidence in the hearing that he wanted the Agreement to continue but he was not sure for how long. 70 He agreed at the hearing his position on not negotiating a replacement agreement remained unchanged.71

[59] It was put to Mr Norris that the employees have available to them a number of powerful weapons including protected action. Mr Norris responded by saying that is so if employees are well organised and fully aware of what their rights are. 72 He indicated with this particular group of employees that would be difficult.73 Mr Norris said that the position to negotiate would improve if the employees could at least get to the Award.74

[60] It was put to Mr Norris that there was no provision in the Modern Award to specifically accommodate the training of persons who come in as adults and enter the meat industry needing total training. He rejected that proposition on the basis that the level 1 classification was for that purpose. 75

[61] Mr Dart gave evidence that the Respondent was able to provide a fixed quote to a meat processor regardless of when and under what conditions the labour is supplied because the 2006 Agreement allows this through its flat rate of pay for all hours. 76 He said when the Respondent supplies labour to a host employer the host employer usually looks for a certain fixed period, generally two years. He said the Respondent is currently half way through a contract with a large host employer.77 He said there is no real avenue to renegotiate the rates during the term of a contract.

[62] Mr Dart argued that backpackers want to work as many hours as possible and move on, and therefore prefer a flat rate to ordinary time and penalty rates as this restricts the ability of the employer to offer them certain hours. 78 There was no supporting evidence for him to draw this conclusion other than saying it was his experience.79

[63] Mr Norris responded to this by saying that the Respondent did not have the ability to quote a flat hourly rate of pay for all hours worked to all clients it supplied labour to based on the evidence concerning the number of industrial arrangements it had that included detailed prescriptions for hours or work, overtime, penalty rates and allowances. 80

[64] Mr Dart was referred to the audited accounts of the Respondent attached to the statement of Mr Norris 81 which stated that in the 2010/11 financial year the Respondent made a net profit after tax of $2,366,167 with a fully franked dividend of $925,000 paid to shareholders and in the 2011/12 financial year $2,720,950 with a fully franked dividend of $1,500,000 paid to shareholders. He said as a percentage of turnover this was in the range of 2 to 3%.82 He said he believed the Respondent was in the normal range of its major competitors, and the dividends distributed were well within the range of many reputable companies on the ASX.83 He agreed the Respondent was profitable but could be doing a lot better.84

[65] The Respondent did not put any qualitative evidence before me about the financial impact of changing the pay arrangements for its employees who are still paid on the Agreement. This has made it difficult to form a clear view on the extent of the impact on the profitability of the Respondent.

[66] The Respondent claimed that if it were to cancel a contract because of a decision to terminate the Agreement it could potentially be sued by clients for breach of contract. The Respondent did not put into evidence any contracts that it was a party to with a host employer. 85

[67] Mr Norris said that the facts did not support this claim in that with Teys the Respondent paid site rates until June 2012, then the rates were paid as per the Agreement, and then in December 2012 it went back to site rates, and the same applied to Brisbmeats. 86 It was put to Mr Norris the Respondent was “taking the knock” for these changes.87

Other Industrial Arrangements of the Respondent

Country Choice

[68] Mr Dart was referred to an agreement the Respondent made which also covers the AMIEU and applies to employees of the Respondent supplied to the Australian Country Choice group of companies at their meat processing facility at Colmslie, Brisbane. Mr Norris gave evidence that a number of the employees at this site were on humanitarian visas and this agreement provided hours of work, overtime, penalty rates and allowances in similar terms to the Modern Award. 88 Mr Dart said those arrangements reflected their contractual arrangements with that host employer.89

Brisbmeats and Teys

[69] Mr Dart said in December 2012 the Respondent made an agreement with the AMIEU 90 to transition employees to the Modern Award and subsequently to the host employer rates due to a negative media campaign run by the Union. The agreement itself indicates that employees of the Respondents at the Rockhampton and Biloela sites of Teys Australia were transitioned to relevant Teys agreement pay and conditions on those site. The Respondents employees at the Brismeats Churchill site were transitioned to the Meat Industry Award. Mr Dart said that because of these changes the business was adversely affected, causing a reduction in the workforce at those sites.91 No specific evidence was provided by Mr Dart in support of this general evidence. He later confirmed this evidence concerning pay and conditions at these sites.92

[70] Mr Dart said that he was aware of competitors of the Respondent who deprive workers of basic entitlements such as superannuation and workers compensation through contracting arrangements. He said these entities avoid State and Federal Taxes such as Pay Roll Tax and PAYG.

[71] Mr Norris gave evidence that at the Brismeats plant which is an operation of Woolworths Ltd, the decision to replace an existing labour hire entity known as Queensland Recruitment Co whose workforce was mostly local workers from around the Ipswich area, with the Respondents workforce who were mainly sub-class 417 visa holders was taken around August 2012. 93

[72] Mr Dart accepted the majority of Queensland Recruitment Co’s workforce were locals 94 and that the Respondents workforce did take these roles over, however added those employees were offered employment with the Respondent.95 Mr Norris claimed the ability of the Respondent to undercut the conditions in the Modern Award was a major factor in the displacement of Queensland Recruitment Co.96 Mr Dart accepted that price would be one of the factors taken into consideration.97

Other Agreements

[73] Mr Norris referred also to the AWX Farming Employer Greenfield Agreement 2009-2012 which made provision for payment of overtime and penalty rates, and certain allowances. 98 Mr Dart said this agreement was no longer utilised.99

[74] Mr Norris also referred to the AWX Constructions Pty Ltd T/A X Partners in People and CFMEU Union Collective Agreement 2009 - 2011, an enterprise agreement made under the Fair Work Act which included penalties and allowances, “site uplifts” site allowances, travel allowances, penalty rates for overtime of the choice of 68% “all-up” loading. 100

Other Awards

[75] Mr Norris also gave evidence that in terms of the expressed business activities of the Respondent potentially eight different Modern Awards would apply which all provide prescriptions for hours of work, overtime, and the payment of allowances. 101 Mr Dart accepted that the Respondent also supplied labour to the construction, landscaping, aged care, mining, manufacturing and hospitality industries. Mr Dart said most employees were covered by site EBR’s. He could not give particulars on those Agreements but agreed they would pay equal to or higher than the Modern Awards.102 It was put to him that 70% of his business is covered by arrangements including prescribed hours, overtime, penalties and allowances. He estimated that it was maybe 50%.103 He also said these employees were very much local employees.104

Casual Employment

[76] Mr Dart said the Respondent had a high turnover of staff as most casual employees transition to the host employer and this is a significant expenditure. 105 He said the refugee workers want to work as many hours as possible because they arrive with little or no income and also wish to send money home to their families.106

[77] Mr Dart gave evidence that the Respondents choice is to use casual employment as it assists in managing the ups and downs of the industry. 107 Mr Norris gave evidence that the Meat Industry Award 2010 allows the flexibility for an employer to utilise employment arrangements that include weekly fulltime, regular daily hire or casual employment, and the flexibility exists under the Modern Award for the Respondent to deal with the exigencies of the industry.108 Mr Dart accepted that the Modern Award allows for casual employment,109 110 and it could suit his business needs in certain cases.111

Support for Resettlement and Training

[78] Mr Dart said the Respondent has a number of translators on site to assist employees in up-skilling and training. These translators also help with other issues to help workers integrate in the community. Mr Dart said the Respondent had partnered with Multicultural Development Association (MDA) over the past 5 years to supply training, employment and long term career prospects.

[79] Mr Dart said the Respondent finds the employees and their families’ accommodation, processes their pre-employment requirements (e.g fitness testing) ensures they are connected to the local migrant community and provides them with pre-employment skills, training in workplace health and safety and conducts inductions. Mr Dart referred to a ‘Private Business Award’ the Respondent had received for services in the area. 112 He said that the Respondent met all the costs of the resettlement process which can be around $2,800 per person.

[80] Mr Dart also said the Respondent invested a significant amount of time and money in training both before and after an employee is placed with a host employer. 113 He said it usually takes 6 to 9 months for an employee to get up to speed on all of the particular aspects of the role, and that an employee’s productivity improves over time. He said most employees work for the Respondent on a casual basis for 8 or 9 months and after that period of time the employee will generally have sufficient training, skills and experience to obtain direct employment with the host employer.

[81] He said AWX has not been very successful at recruiting local labour in towns where meat processors are located. He said they generally supply two types of workers to host employers, backpackers, and refugees from foreign countries. 114 He said the Respondent dealt with 23 different nationalities.115 He said in regard to refugees that as they tend to settle in urban areas they lack the skills and experience for employers however the Respondent can offer them on the job training and work in meat processors in regional areas which allows them to gain meaningful work and a career in the meat industry.116 117

[82] Mr Norris claimed that some meat processing companies in rural and regional areas of Australia are experiencing labour shortages, including for semi-skilled and unskilled labour, and that if the Respondents Agreement were terminated this demand would still have to be met. Mr Dart agreed that if the Agreement was terminated demand for labour would still exist. 118

[83] Mr Norris said a number of Australian government funded services assist in the resettlement process for workers on visas such as those employed by the Respondent, the principal grant program being the Humanitarian Settlement Services which includes interpretation services, settlement grants, an adult English program and complex case support. He gave an example of a non-government organisation accessing this funding to assist humanitarian entrants take up employment with Teys Australia in Biloela and Rockhampton.

[84] Mr Norris challenged Mr Darts’s evidence of a cost figure of $2800 per person for resettlement on the basis that he had viewed payslips of employees of the Respondent that made deductions for accommodation if arranged by the Respondent. He also said the Respondent made deductions for Q Fever vaccinations of up to $300. He said induction and pre-employment training must be met for all employees. 119 Mr Dart accepted this, and that induction and pre-employment was generally done in unpaid time however the language issues increased the amount of time required.120

[85] Mr Dart said sometimes the Respondent recovers the cost to it of travel, and in other cases it may be funded by Job Services Authority. 121 He said costs included a flight, short term accommodation, medicals, drug and alcohol test and translation.122 Mr Dart said in locations like Rockhampton the Respondent would pay the bond for a property and furnish it and then the employee would have the use of the property and to replay the employer costs over a period of time.123 Mr Dart confirmed in cross examination the Respondent does make deductions for accommodation costs from employees and also for Q fever vaccinations.124

[86] Mr Norris said that the practical training times to teach an employee doing unskilled and semi-skilled labouring work in the meat processing industry was very short. He said tasks are repetitive, some employees rotate through tasks and others do not. He maintained most labouring tasks could be taught in a day or two. 125 Mr Dart indicated the time taken would vary. He said some jobs could be taught in a day, others may not.126 Mr Dart agreed the jobs are very repetitive.127

[87] Mr Norris indicated training was performed on the job and the time spent by an employee standing back whilst receiving instruction was minimal, he suggested perhaps 30 minutes at most. The employee is then expected to keep pace as normal work is performed. 128 Mr Dart accepted training is conducted as the employee performs the task,129 however translation requirements would extend this time.130

[88] The example of an employee given the task of making up cartons was put to Mr Dart as an example of a task that would take 10 minutes in order to be productive. He accepted that most likely at the end of a day that would be true but that is not what happens. 131 He accepted an employee packing in the boning room could learn to pack a particular cut in couple of hours.132 He said it would take maybe two or three days to learn to remove horns and hocks.133

[89] Mr Norris said skilled labouring positions such as packers in the boning room, operators or cry-o-vac machinery, and knife hands on the kill floor take a little longer but the process is similar as is the case for unskilled and semi-skilled labour. It was put to Mr Dart in cross examination these highly skilled roles of slaughtering, boning and slicing take between two weeks and three months to learn. Mr Dart thought it would be three months to learn one cut. 134

[90] It was Mr Darts’s evidence that it usually takes 6 to 9 months for a person to get up to speed on all of the particular aspects of the role which effects productivity. 135 Mr Norris categorically disagreed with this evidence.136 He said in areas where employees are being trained additional staffing is not provided.137 Mr Norris said even in the more highly skilled roles a person who took longer than three months to learn would be considered inherently unsuitable for the position.138

[91] Mr Shamsul Alam gave evidence for the Respondent. His own language was the Rohingya dialect. An interpreter was made available by phone to assist him in giving evidence however the Respondent advised that Mr Alam had some English and was content to proceed on that basis. 139 He said he came to Australia on a Humanitarian Visa in 2012 and that he came via a detention centre. He said it was difficult to live on the government assistance he received and he found it difficult to find employment. He said his case worker referred him to the Respondent and he secured work almost immediately with the Respondent.

[92] He said the Respondent helped him to move to Rockhampton and an onsite interpreter assisted him in the workplace. He later indicated however it was the Red Cross that paid for his travel. 140 He indicated he had a Q fever injection for which he paid through a deduction of $280 from his first weeks pay.141 He said he paid for his own accommodation.142

[93] He said after nine months employment with the Respondent he moved over to Teys Australia which he said occurred on 5 May 2013. 143 He said Teys have their own interpreter. 144 He said he still works as a janitor at the Rockhampton site in the boning room, which is the same position he started in.145 146 147 Mr Alam said he took English classes in the detention centre for six months.148 He said he could also speak Hindi, Malaysian and Bangali which assisted with interpreting. He indicated he was shown how to do his job and after one week he did it himself.149 150

[94] His evidence indicated it was the Multicultural Development Association that assisted him in finding housing and completing a rental agreement. 151 In terms of completing pre-employment health and safety inductions and paperwork he said assistance was received from an interpreter working in the office who spoke Hindi who could translate for the Burmese employees.152 He said induction was paid time and lasted for four, four hour days.153

Section 226(a) - Public Interest

[95] I am required to be satisfied it is not contrary to the public interest to terminate the Agreement. Matters of public interest refer to matters that affect the public as a whole, distinct from the interests of the parties. (See BHP Coal Pty Ltd Gregory Mine CFMEU Enterprise Agreement). 154The public interest test is not one restricted to the immediate parties, but must be broadly applied. (See Kellogg Brown & Root Pty Ltd and others v Esso Australia Pty Ltd).155

[96] The key arguments relied upon by the Respondent in regard to public interest were the profile of the employees covered by the Agreement, the locations they work and the nature of their work. 156 Mr Dart said the Respondents business would contract if the Agreement was terminated and as a result so to would the ability for the Respondent to be able to continue to provide opportunities for refugee workers. 157 The Respondent submitted it would be contrary to the public interest to terminate the Agreement as it would hinder access to training and employment opportunities that enable refugees to learn skills and gain competencies which will assist them in gaining employment. 158

[97] The practical effect of the application if granted would see a proportion of employees of the Respondent not already paid wages and conditions as good as or better than the Meat Industry Award 2010 lifted to that minimum standard. This is would be consistent with both the objects of the Act and the modern awards objective.

[98] The evidence indicated in the case of the Brisbmeats labour hire contract that one of the reasons that the labour hire company Queensland Recruitment Co was replaced by the Respondent was that the Respondent could offer labour to Woolworths Ltd at a lower price than Queensland Recruitment Co. I acknowledge that Mr Dart gave evidence that workers employed by Queensland Recruitment Co were offered employment with the Respondent, but it is of concern that it appeared from the evidence that one of the factors that favoured the Respondent in the contest for that work at Brisbmeats was that the Respondent was competing at a labour rate below the Modern Award safety net. The evidence was also that following some disputation concerning the matter the Respondent lifted the conditions for employees at Brismeats to site rates.

[99] The Respondent sought to draw a link between the circumstances of this case and decisions made by the Tribunal in Metro Velda Pty Ltd Peterborough Enterprise Agreement 2009 159and Black Crow Organics Organics Enterprise Agreement 2009 160to exercise power under s. 189 to approve an enterprise agreement that did not pass the no disadvantage test, because of exceptional circumstances that made approval not be contrary to the public interest.

[100] In Black Crow the Commissioner found exceptional circumstances existed justifying approval despite the agreement containing a voluntary extra hours clause, based on the seasonal nature of the fruit and vegetable industry causing peaks and troughs in available work for casuals and that casuals employees supported the arrangement as it allowed them to accumulate savings. The Commissioner said other similar agreements in the industry had been approved under the existing legislation before a Full Bench Decision in Bupa, and the agreement would only operate for two years allowing a transition to the Modern Award. Many of the circumstances relied upon in that matter are not present here to justify retention of an agreement as opposed to approval in that case. There was no clear evidence regarding peaks and troughs in labour hours for casual employees as appeared to be relied upon in Black Crow as a basis for finding exceptional circumstances in the fruit and vegetable industry. Unlike in Black Crow where employees supported approval, the evidence in this case is that employees support termination and not retention of the Agreement. The decision in Metro Velda is distinguishable for similar reasons. The agreement was supported unanimously by employees, and further the Commissioner indicated he believed the agreement did pass the better off overall test in any event, but if he was wrong he would conclude it should be approved based on the employer’s intent to continue to operate despite fierce competition from Europe in the particular industry.

[101] The evidence does not support a finding that it would be against the public interest to terminate the agreement because of the impact termination would have on migrant employees generally. The Respondents business is one of many operating in the meat processing industry. It is not contrary to the public interest for employees to be receiving wages and conditions in line with what is now the Award safety net. This would be in keeping with the objects of the Act and the Modern Award objectives.

Section 226(b)

[102] As set out above I adopt the results of the secret ballot for the purposes of taking into account the views of employees which is to support termination. The Respondent has made clear its opposition. There is no employee organisation covered by the agreement.

[103] I have acknowledged above the evidence of Mr Dart that following agreements to increase pay and conditions at Brismeats and Teys Australia the Respondents business has contracted somewhat at those sites however it is still present at those sites. While Mr Dart complained about the impact of termination in circumstances where the Respondent is a party to fixed term contracts that are only partly completed the evidence indicates the Respondent has had to deal with adjusting its pay and conditions unexpectedly before and continues to operate at the sites where that has occurred.

[104] Further there is considerable evidence that the Respondents business is not exclusively dependant on the provision of labour hire in the meat processing industry. The evidence is that the Respondents business operates across a range of industries in which it provides industrial conditions for its employees at or in some cases considerably above Modern Award conditions. For these reasons I do not consider the circumstances of the Respondent, and the likely effect of termination of the Agreement on the Respondent is a basis to refuse the application.

[105] Further the evidence of Shamsul Alam was that he was able to obtain assistance from sources other than the Respondent including the Red Cross for travel and the Multicultural Development Association in settling into Rockhampton. He was not exclusively reliant on the Respondent. While there is no doubt Mr Alam initially gained employment through the Respondent and received assistance from the Respondent, particularly in regard to language issues he also paid the Respondent for some assistance including his Q fever injection. In relation to the matter of skills acquisition the evidence was inconclusive. There was a significant gap between the evidence of Mr Dart and Mr Norris concerning the time the Respondent commits to training and productivity it loses through that commitment.

[106] The only evidence from an employee performing the work itself was again from Mr Alam and it was his evidence he learnt to perform his role as a janitor within a week and essentially performed the same role until he transferred to direct employment with Teys where he still performs that same role. I do not find the training argument a compelling one to rely upon as a basis to reject the application.

[107] In contrast the circumstances of employees if the application were not granted would leave a situation where the Respondent has indicated a clear intention not to make a new agreement to replace the existing agreement that expired on 23 December 2009. The evidence of Mr Norris supports a conclusion that because of the nature of the workforce the employees have a limited capacity to achieve a sufficient level of organisation to bring industrial pressure to bear on the Respondent to force the issue.

[108] The evidence is the AMIEU had approached the Respondent to request that it agree to bargain. The Respondent has been critical of the AMIEU for not taking any of the formal steps available under the Act to seek to commence bargaining with the Respondent. Mr Norris was I believe direct and to the point in describing the challenges faced by the AMIEU in attempting to utilise some of the options available under the Act to bring an employer to the bargaining table given the nature of the Respondents workforce.

[109] Given the workforce is overwhelmingly casual with a reasonably high level of turnover, are working on various classes of humanitarian or other immigration visa, and predominantly speak limited or no English the practical challenges for the employees or their representatives in attempting to bring the Respondent to the bargaining table other than by agreement are such that I do not intend to find their failure to attempt to do so as a matter that should weigh against the granting of this application in these particular circumstances.

[110] The existing Agreement was made at a time when it was possible under s.354 of the WR Act to exclude the operation of protected award conditions. This situation was changed by the introduction of s.346M to the WR Act with effect from July 2007, but that was after the Agreement was approved by the Office of the Employment Advocate. A copy of the Agreement was provided with the statement of Mr Norris. 161 The Agreement provides at Clause 3;

“3. PURPOSE OF AGREEMENT

3.1 The purpose of this Agreement is to provide comprehensively the wages and conditions of employment for the work described in clause 1.

3.2 This Agreement will operate to the total exclusion of any Award either State or Federal. NOTE: Unless this Agreement expressly recognises the following “Protected Award Conditions” which are listed in the Act as Public Holidays; Rest Breaks including meal breaks; incentive based payments and bonuses; annual leave loadings; penalty rates and shift/overtime loadings; and monetary allowances, they shall not apply and are either expressly removed or where appropriate continued on by this Agreement by specific written reference the particular condition (Workplace Relations Act 1996).”

[111] The evidence was that where the Agreement is currently applied the Respondent observes the same hourly rate of pay as the Modern Award. The Agreement goes on to provide that all employees will be engaged as casuals. The Agreement provides casual employees can work up to 38 ordinary hours in a week or an average of 38 hours over a particular cycle and work up to 10 ordinary hours per day as ordinary time. Ordinary hours are to be worked over 5 consecutive days of the week, Monday to Sunday. Clause 7 provides daily hours can be worked between 3am and 12 Midnight with a maximum of 10 ordinary hours per day. However Clause 9 provides that all time worked in excess of ordinary daily rostered hours of work prescribed in Clause 7, will be deemed to be reasonable additional hours and will be paid the applicable hourly rate in Clause 5.2, which is the same rate payable for ordinary hours. Clause 11 provides public holidays will be paid at double the hourly rate.

[112] The effect of the Agreement in short is that a casual (all employees under the Agreement are casual) does not receive any additional payment for overtime, weekend work, shiftwork or certain allowances that would otherwise be payable under the Meat Industry Award if it applied. Further the spread of hours is much wider under the Agreement then the Award. Depending on the hours of work an employee is rostered to work under the Agreement the potential difference in earnings may be nothing, relatively small, or it may be very significant. Based on the overall likely effect termination will have on the circumstances of employees I consider it a factor favouring termination.

[113] In a decision of Watson VP in Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWA 2434 he said as follows at paragraphs 29 and 31;

“[29] In my view it is unreasonable to lock such an agreement in place indefinitely. The legislative scheme supports the ending of agreement obligations at or after the nominal period the agreement. Termination of the Agreement does not preclude further enterprise bargaining. Regular revisions and renewal of enterprise arrangements is desirable...”

..............................................

[31] The longer the time after the expiry of the nominal term the stronger the case for termination. This agreement passed its nominal expiry date almost ten years ago. Where the continuation of the Agreement could have detrimental affects on the operation and the level of consistency of terms and conditions of employment the case for preventing termination is further diminished. I find that this circumstance exists in this case.”

[114] Reasons expressed in the Energy Resources matter are relevant here. Whilst I acknowledge the length of time since the Agreement reached its nominal expiry is far shorter than was the case in Energy Resources it is still several years ago and the Respondent has made clear it has no desire to replace the Agreement. Further, in this case the applicants are not in a strong position to force the issue. It is also clear from the evidence the terms and conditions of employment for the Respondents employees are becoming increasingly inconsistent as far as its workforce in meat processing is concerned which can at least in part be attributed to the continued existence of the Agreement.

CONCLUSION

[115] For all of the reasons set out above I intend to grant the application to terminate the Agreement. The Respondent has argued that in the event I find for the Applicants that I should allow a considerable period of time before giving effect to the decision in order for the Respondent to take steps to make adjustments to its affairs. I do not think a lengthy period is appropriate in the circumstances of this case. Several months have elapsed since the filing of the application. A shorter period of several weeks is not unreasonable. I have determined that the AWX Pty Ltd Employee Collective Agreement - Meat Industry Employees 2006 - 2009 be terminated from Monday 2 September 2013.

COMMISSIONER

Mr Dalgleish - The Australasian Meat Industry Employees Union (AMIEU) for the Applicants.

Mr Murdoch - Queens Counsel for the Respondent

Hearing details:

2013

Brisbane

22 April

10 May

4 July

5 July

29 July

1 Transcript dated 22 April 2013 PN 58 - 60

2 Transcript dated 22 April 2013 PN 72 - 75

3 Transcript dated 22 April 2013 PN 79 - 81

4 Transcript dated 22 April 2013 PN 84 - 86

5 Transcript dated 22 April 2013 PN 58

6 Transcript dated 22 April 2013 PN 75

7 Transcript dated 22 April 2013 PN 36

8 Email from FWC to parties dated 13 May 2013.

9 Exhibit 6 Statement of Lee Norris dated 27 June 2013

10 Transcript dated 4 July 2013 PN 188

11 Transcript dated 4 July 2013 PN 328

12 Table of names set out by AWX Pty Ltd

13 Transcript dated 4 July 2013 PN 353

14 Transcript dated 4 July 2013 PN 444 - 445

15 Transcript dated 4 July 2013 PN 538

16 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 2

17 Transcript dated 4 July 2013 PN 880

18 Transcript dated 4 July 2013 PN 894

19 Transcript dated 4 July 2013 PN 897

20 Transcript dated 4 July 2013 PN 898

21 Transcript dated 4 July 2013 PN 935

22 Exhibit 8 Minutes of meeting of Federal Executive Item 4 (c)

23 Transcript dated 4 July 2013 PN 1067 - 1081

24 Transcript dated 4 July 2013 PN 1082

25 Exhibit 9 Email from L Norris to Mr Donzow and Mr Perkins Dated 18 February 2013

26 Transcript dated 4 July 2013 PN 1187

27 Exhibit 10 Email from Grant Courtney to Lee Norris dated 4 March 2013.

28 Transcript dated 4 July 2013 PN 1201 -1206

29 Transcript dated 4 July 2013 PN 1249

30 Transcript dated 4 July 2013 PN 1255 - 1259

31 Transcript dated 4 July 2013 PN 1277

32 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 4

33 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 7

34 Transcript dated 4 July 2013 PN 1749

35 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 8 - 9

36 Transcript dated 4 July 2013 PN 1819

37 Exhibit 14 Statement of Mark Perkins date 5 July 2013 Paragraph 11

38 Transcript dated 4 July 2013 PN 1825 - 1827

39 Transcript dated 4 July 2013 PN 252 - 253

40 Exhibit 17 Report prepared by Dr Heilbron

41 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 105

42 Exhibit 17 Report prepared by Dr Heilbron page 3

43 Transcript dated 4 July 2013 PN 273

44 Transcript dated 4 July 2013 PN 277 - 291

45 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 46

46 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 4

47 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 8

48 [2013] FWC 4260, PR538397

49 Skye Mitchell & Ors v Skilled Communication s Personnel Decision paragraph 14 - 18

50 Transcript dated 4 July 2013 PN 781

51 Transcript dated 4 July 2013 PN 793

52 Transcript dated 4 July 2013 PN 800

53 Transcript dated 5 July 2013 PN 1836

54 Exhibit 4 Statement of Meg Giles dated 12 June 2013 Paragraph 15

55 Transcript dated 5 July 2013 PN 1841 - 1849

56 Exhibit 15 Email from Mark Perkins to Meg Giles dated 24 May 2013

57 Transcript dated 5 July 2013 PN 1968

58 Transcript dated 5 July 2013 PN 1896 - 1904

59 Exhibit 15 Email from Mark Perkins to Meg Giles dated 24 May 2013

60 Transcript dated 29 July 2013 PN 2993 - 2998

61 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 3

62 Exhibit 3 Table of names set out by AWX Pty Ltd Paragraph 10

63 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 attachment LGN 1

64 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 4

65 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 7

66 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 11 attachment LGN 2

67 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 12 attachment 3

68 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 13

69 Transcript dated 4 July 2013 PN 550

70 Transcript dated 4 July 2013 PN 544 - 545

71 Transcript dated 4 July 2013 PN 553

72 Transcript dated 4 July 2013 PN 921

73 Transcript dated 4 July 2013 PN 923

74 Transcript dated 4 July 2013 PN 926

75 Transcript dated 4 July 2013 PN 1635

76 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 13

77 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 16

78 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 20

79 Transcript dated 4 July 2013 PN 626

80 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 39

81 Exhibit 6 Statement of Lee Norris dated 26 July 2013 attachment LGN 5

82 Transcript dated 4 July 2013 PN 448

83 Transcript dated 4 July 2013 PN 452

84 Transcript dated 4 July 2013 PN 677

85 Transcript dated 4 July 2013 PN 586

86 Transcript dated 5 July 2013 PN 1642 - 1646

87 Transcript dated 5 July 2013 PN 1648

88 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 22

89 Transcript dated 4 July 2013 PN 455

90 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 38 Attachment D

91 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 39

92 Transcript dated 4 July 2013 PN 648 - 649

93 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 54 - 55

94 Transcript dated 4 July 2013 PN 474

95 Transcript dated 4 July 2013 PN 469

96 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 56

97 Transcript dated 4 July 2013 PN 472

98 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 23

99 Transcript dated 4 July 2013 PN 456

100 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 24

101 Exhibit 6 Statement of Lee Norris dated 26 July 2013 paragraph 26

102 Transcript dated 4 July 2013 PN 602 - 603

103 Transcript dated 4 July 2013 PN 607 - 609

104 Transcript dated 4 July 2013 PN 736

105 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 29

106 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 30

107 Transcript dated 4 July 2013 PN 459

108 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 37 - 38

109 Transcript dated 4 July 2013 PN 591

110 Transcript dated 4 July 2013 PN 664

111 Transcript dated 4 July 2013 PN 615

112 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 24 attachment B

113 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 26

114 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 19 - 21

115 Transcript dated 4 July 2013 PN 415

116 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 23

117 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 63 - 71

118 Transcript dated 4 July 2013 PN 555

119 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 74 - 76

120 Transcript dated 4 July 2013 PN 502 - 505

121 Transcript dated 4 July 2013 PN 497 - 499

122 Transcript dated 4 July 2013 PN 490

123 Transcript dated 4 July 2013 PN 494

124 Transcript dated 4 July 2013 PN 638 - 640

125 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 79 - 81

126 Transcript dated 4 July 2013 PN 509 -511

127 Transcript dated 4 July 2013 PN 683

128 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 83 - 84

129 Transcript dated 4 July 2013 PN 687

130 Transcript dated 4 July 2013 PM 512

131 Transcript dated 4 July 2013 PN 699

132 Transcript dated 4 July 2013 PN 701

133 Transcript dated 4 July 2013 PN 702 - 706

134 Transcript dated 4 July 2013 PN 708

135 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 27

136 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 88

137 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 90

138 Exhibit 6 Statement of Lee Norris dated 26 July 2013 Paragraph 91

139 Transcript dated 5 July 2013 PN 1979 - 1981

140 Transcript dated 5 July 2013 PN 2392 - 2393

141 Transcript dated 5 July 2013 PN 2397

142 Transcript dated 5 July 2013 PN 2411 - 2415

143 Transcript dated 5 July 2013 PN 2279

144 Transcript dated 5 July 2013 PN 2287

145 Transcript dated 5 July 2013 PN 2009 - 2010

146 Transcript dated 5 July 2013 PN 2189

147 Transcript dated 5 July 2013 PN 2201

148 Transcript dated 5 July 2013 PN 2116

149 Transcript dated 5 July 2013 PN 2193

150 Transcript dated 5 July 2013 PN 2426

151 Transcript dated 5 July 2013 PN 2154 - 2163

152 Transcript dated 5 July 2013 PN 2178 - 2187

153 Transcript dated 5 July 2013 PN 2446 - 2453

154 [1998] [PR904284]

155 [2005] AIRC 72].

156 Respondents submissions paragraph 18

157 Exhibit 1 Statement of Cameron Dart dated 12 June 2013 Paragraph 42

158 Respondents outline of submissions Paragraph 22

159 [2010] FWAA 2622, PR995663

160 [2010] FWAA 5060, PR999080

161 Exhibit 6 Statement of Lee Norris dated 26 July 2013 attachment LGN 1

Printed by authority of the Commonwealth Government Printer

[2013] FWC 5128

9 AUGUST 2013