Fosters Group Limited T/A Carlton and United Breweries v United Voice

[2013] FWC 1085

[2013] FWC 1085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Fosters Group Limited T/A Carlton and United Breweries
v
United Voice
(C2012/5713)

(C2012/5954)

COMMISSIONER GREGORY MELBOURNE, 12 MARCH 2013

Alleged dispute concerning Workplace Rosters and Manning.

Introduction

[1] This matter concerns two applications filed by Carlton and United Breweries (the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act). They seek to have the Tribunal deal with the related disputes in accordance with the disputes settlement procedure in Clause 9 of the Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 (the Agreement). The Respondent is United Voice (the Respondent).

[2] The first application was filed on 20 October 2012 and concerns a dispute in regard to a proposal by the Applicant to reduce the manning on the B1 Labeller in the Packaging Department from three operators to two across each of the three shifts. The second application was filed on 12 November 2012 and involves a dispute relating to a proposal by the Applicant to remove the Powder Man role from the filtration area in the Brewing Department by incorporating those duties into the remaining four filter room roles. The Tribunal subsequently agreed to a request from the Applicant to have the matters joined and dealt with together.

[3] The provisions in the Agreement relevant to the dispute are Clause 6 - Commitment; Clause 40 - Rosters; Appendix I - Manning; and Appendix J - Manning Tables. Appendix I provides, in particular, at dot point 8:

“At any time during the life of this Agreement the Company may initiate discussions with the Union to discuss manning arrangements to take into account changes in technology or operational requirements. The Union will not unreasonably withhold their consent to changes in manning numbers to take into account changes in technology or operational requirements.”  1

[4] It also provides for work trials to be conducted, where required, prior to any changes in manning being implemented.

[5] Similar issues were dealt with by Senior Deputy President Kaufman in late 2011 under similar provisions in a previous Agreement between the parties. The proposed changes were opposed by United Voice at that time. The Respondent is also opposed to the changes the Applicant now wants to implement.

[6] The dispute was initially dealt with in conciliation on 2 November but was unable to be resolved at that time. It was subsequently dealt with in hearings on 18, 19 and 20 December 2012. The parties were previously required to file and serve an outline of submissions and any witness evidence they sought to rely upon. It was also subsequently agreed the parties could have until 10 January to review the transcript of the proceedings and provide any further submissions in response. Both parties took up that option and provided additional submissions in accordance with that agreed procedure.

The Issue to be Determined

[7] Clause 6 - “Commitments” of the Agreement states in part -

“6.1 The parties to this Agreement are committed to the belief that the success of Foster’s Australia Limited as a business is fundamental to the best interests of all people covered by it.

6.2 The intent of the Agreement is to facilitate the ongoing development of the Abbotsford site in a manner that assures sustainable business success and provides all Employees who work at these sites with a secure and safe workplace, development opportunities, and fair rewards.” 2

[8] Clause 40 - “Workplace Rosters and Manning” states as follows -

“40.1It is the intention to provide rosters as early as possible for as long as practical, to each Employee at least two weeks in advance. These may be subject to change.

40.2Shift roster changes require 48 hours notice to be provided to the Employee.

40.3Appendix I sets out the relevant principles that will apply in determining manning levels in Packaging.

40.4The manning levels that existed at the date of the commencement of this agreement (which may be varied during the life of this agreement in accordance with Appendix I) are shown at Appendix J.”  3

[9] Appendix I - “Manning” states as follows -

“The parties recognise that manning numbers may need to change from time to time.

  In order to facilitate discussions on this issue the parties have agreed that the following principles will apply in these discussions:

• At all times production lines will be run in a safe manner.
• Operators will be fully trained in the tasks they are assigned to do.


• Up to date standard operating procedures will be available and operators will have easy access to such documents.


• Operators will work as directed and perform the full range of tasks within their relevant classification levels to ensure the proper performance of their work.


• Packaging lines will operate on a continuous running basis or a non continuous running basis within the scope of manning numbers, unless otherwise agreed


• Operators will be given rest and meal breaks in accordance with this Agreement. Flexibility in the timing and duration of breaks will be allowed but is not to be abused.


• Operators will not be directed to operate multiple machines except in accordance with the relevant classification description and these guidelines.


• At any time during the life of this Agreement the Company may initiate discussions with the Union to discuss manning arrangements to take into account changes in technology or operational requirements. The Union will not unreasonably withhold their consent to changes in manning numbers to take into account changes in technology or operational requirements.


• Work trials will be conducted prior to any on going changes being implemented, unless it is agreed by the operators in the work area that a trial is not required. The manner in which the work trial will be conducted will be discussed in the work area and with the relevant Union representative.


• Reclassifications or new pay grades may be introduced by agreement in accordance with Clause 23 of this Agreement.



The following tables set out the Packaging manning levels at the time this Agreement was established.” 4

[10] Appendix J - “Manning Tables” is not set out in full in this decision, however, it contains detailed information about the manning levels in place in Packaging

“...at the time this Enterprise Agreement was established.” 5

[11] However, as indicated, Appendix I allows for those manning levels to be changed during the life of the Agreement in accordance with the process set out in the Appendix.

[12] The Applicant initiated discussions with the Respondent indicating it wanted to make the changes to manning arrangements that are now the subject of this dispute. Work trials have been conducted in each case. The Applicant is of the view the work trials were a success. The Respondent remains opposed to the changes being introduced.

[13] The issue to be determined is accordingly whether the Respondent is in breach of the provisions in Appendix I by now unreasonably withholding its consent to the manning changes proposed to be implemented by the Applicant.

The Submissions and Evidence

[14] The Applicant submits the natural and ordinary meaning of the words contained in Appendix I and Clause 40 are clear. It is able to propose changes to manning requirements. When doing so it must consult with employees and the Union. Unless agreed otherwise a work trial must be conducted prior to any changes being implemented. The Union must then not unreasonably withhold its consent to the changes.

[15] The Applicant submits the concept of “unreasonableness” should be considered in the light of the commitments contained in Clause 6 of the Agreement. It states the Tribunal should make an objective assessment of the words “unreasonably withhold consent” and notes the Macquarie Dictionary includes in the definition of reasonable “endowed with reason” and “agreeable to reason or sound judgement”. 6 It makes reference to the a decision of Commissioner Asbury in AWU v. Mt Isa Mines Ltd7 when the Commissioner states:

“It is not sufficient for the party refusing the introduction of a proposed roster to simply maintain that because there is opposition, the roster does not meet health and safety, business needs or employee needs. The relevant consideration is whether the grounds for refusal to work the roster are on an objective basis, reasonable, because the roster does not meet health and safety, business needs or employee needs. Thus the fact that there may be genuine opposition to working a particular roster will be a matter for consideration by the Commission but will not by itself be determinative.” 8

[16] It submits the work trials indicate the changes proposed are reasonable and based on management decisions taken with proper regard for the needs of the business. It submits the Respondent has prejudged the outcome of the work trials and opposed the changes consistently without any reasonable basis for doing so. It submits it has done so in the face of evidence the changes are essential to the sustainable business success of the Abbotsford site, and are important measures to ensure efficiency in production at a time of declining demand for the Company’s products. There are, accordingly, genuine operational requirements that provide the rationale for the changes proposed. It also submits the changes have been trialled with utmost regard for the safety of employees and it has clearly identified safe alternate work methods in both the Packaging and Brewing Departments.

[17] Mr Simon Cousins is employed by the Applicant as the B1 Packaging Manager and has been employed by the Applicant for eight years. He is responsible for 51 operators working across three shifts. He initiated discussions in June 2012 with the Union site delegates about a proposed work trial in respect of the B1 labeller. After a series of discussions in that month with delegates, union officials and company representatives, including a two hour stop work, it was finally agreed the work trial would commence on 2 July and continue until 19 July. He stated the trial was run in accordance with the Respondent’s Work Trial Principles which aim:

“(a) to identify issues of concern and improvement,

(b) to determine the most effective way of operating in the trialled environment; and

(c) to maintain productivity and quality and provide a positive, health and safe working environment for employees.” 9

[18] The trials were conducted with a cross functional team comprising a Work Trial Manager, Observer, Operators, Health and Safety Representative’s (HSR’s) and United Voice representatives. Mr Cousins stated on the evening of 2 July he conducted a briefing session with relevant operators to emphasise, in particular, the commitment to safety during the trial. He stated:

“No safety concerns were raised at that point. The only issue raised by the team included a concern about an increase in their workload by reason of the manning reduction, and a query whether they would receive an increase in remuneration if the changes were implemented.” 10

[19] He stated during the first week of the trial an operator sustained a small cut to his finger after handling a damaged label tray, but in his opinion this was not associated with the changes to the system of work involved in the work trial. A range of issues emerged in that week including flying labels, which describe the situation when part of a label does not adhere to a bottle, but again he did not believe these issues were a consequence of the changed work arrangements involved in the work trial. In week two of the trial another operator injured his shoulder clearing a jam in machinery using a metal pole, which is an unauthorised method of clearing a jam. There was also poor performance in that week due to reliability and set up issues.

[20] He stated no safety issues were reported in week three of the trial and the lines ran with minimal problems. He said:

“Based on my experience in this area, the data, observations and feedback received from the work trial reports, the work trial in the B1 Labeller was successful. This is coupled with the fact that the operators already currently run the three labellers to allow for breaks. Further, there were no new hazards observed or introduced, or incidents that occurred, due to the reduction in manning.” 11

[21] In regard to how he came to the view the work trial was successful Mr Cousins stated:

“So I used the data of the business performance of the three weeks. So we didn’t notice any significant change in the performance of the line running the work trial for the three weeks compared to two lots of three weeks beforehand. So again we just used the data. There was no significant – or there were no hazards raised due to the running of the work trial. So by running an extension of what we currently run we didn’t introduce any new hazards into the line. The quality didn’t change across the line. We do have blow-outs where we have issues with flying labels from time to time. We didn’t see an increase in quality concerns.” 12

[22] On 27 July Mr Cousins met with Mr Koder, Mr Thorne and Mr Medved to discuss the outcome of the work trial. Mr Cousins responded to the concerns raised by stating:

“(a) The end of week clean of the B1 Labeller had only been carried out once during the work trial, and it was deemed unnecessary to trial any further as typically a worker from another area within B1 assists with the clean;

(b) The quality of the product was the concern of management and did not pose any risks to the safety of the employees;

(c) The reliability of the machines was also a concern for management, and all issues in this regard, specifically the flying labels, were rectified; and

(d) The labellers are currently operated by two people during breaks and as such there the proposed changes are simply an extension of a practice that already occurs during break periods, and therefore there is no increase in duties nor any justification for a remuneration increase.” 13

[23] Mr Cousins stated in his view three labellers can be run by two operators safely and the changes should be implemented on a permanent basis. He also indicated during the four years he was Production Controller on the line the prevailing practice was for employees to take breaks of up to one hour at a time. This typically meant for around six hours out of eight on a shift the machines were only being operated by two operators.

[24] Ms Margaret Weir is the Brewing Operations Manager at the Abbotsford site and has been employed by the Applicant for 27 years in a variety of roles and locations. She is responsible for the Brewing Production Coordinators, who are employed on a six day roster. She said the Brewing Department is primarily responsible for the production of beer prior to it being sent to the packaging department. The Filtration Room is part of the Brewing Department and the filter room in that department is staffed by five people per shift - two filter operators, two bright team members and a powder role. Each person rotates through all five rostered positions.

[25] Ms Weir said when SABMiller took over the Applicant company some packaged and draught beers were withdrawn from Abbotsford, which reduced volumes and led to the closure of the B2 packaging line. Certain ingredients which had been manually prepared were also removed from the brewing process, acting to reduce the workload in the filter room. After considering various options it was finally decided the duties of the powder role would be incorporated into the remaining roles in the filter room. Ongoing discussions took place with the Union between August 2011 and February 2012 about a proposed work trial, but were then delayed because of negotiations about the new enterprise agreement. In June 2012 a letter was sent to the Union proposing the trial, with the Union responding it wanted it to be delayed. It was finally agreed in discussions with the filtration personnel the trial proceed, and it was subsequently conducted over three weeks between 23 July and 10 August.

[26] Ms. Weir stated:

“In my view as Brewing Operations Manager, the work trials were successful. We were able to run filtration and complete tasks on time without interruption or production stoppages. Neither safety nor quality was compromised.”  14

[27] She also said following the trial United Voice raised a number of concerns. These matters did need to be addressed, but were operational issues and did not relate to the reduction in employee numbers. In her view the work trial was a success and demonstrated it is appropriate to eliminate the Powder role.

[28] She stated in cross examination that after the work trial was completed Mr Paul King told her the employees would like to accept the “50 cent allowance” 15. She also indicated it was not in her power to offer or promise a pay increase and was confident she did not give Mr King a document after the work trial setting out the allowance options.

[29] Mr Sebastian Siccita is the Packing Manager at the Abbotsford site and has been employed for approximately two and a half years. He is responsible for 170 employees working across six packaging lines. The B1 building houses two automated bottling lines, with both lines in parallel and similar machines in close proximity. It is manned by 17 operators on day shift and 16 on afternoon and night. Three operators currently work in the labeller area, with one on the A line and two on the B line in close proximity to each other. During routine production times there are three operators operating each labeller. During the relief period the operators are relieved by each other meaning that during these periods two operators operate three labellers. He stated the proposed changes involve reducing three labeller operators to two operating three machines, with barman relieving the two operators for breaks, being an overall reduction of three roles. He said he was aware of the discussions referred to in the evidence of Mr Cousins about the proposal to carry out a work trial and indicated in June 2012 he was of the view the Union was attempting to delay the work trials as they were refusing to speak with Simon Cousins about the proposal and were raising issues instead about previous trials, which had already been resolved. He stated in his view the trial was successful because it demonstrated three labellers could be run by two operators safely. No significant hazards were identified or introduced during the trial and no safety incidents occurred as a result of the changes to the system of work.

[30] In cross examination he indicated the current practice is for the operators to relieve amongst the group of three and in his experience in the labeller area:

“..most times I’ve seen two people there operating the labellers.” 16

[31] In September 2012 he attended a meeting with management representatives and two union delegates, Mr Medved and Mr Koder. He recalls expressing concern about the length of time taken to introduce the changes and the lack of clarity provided by the delegates about their concerns with what was being proposed, particularly when compared with similar changes that had been introduced at the Applicant’s Yatala site in Queensland. He stated:

“ln my view the work trials establish that the changes to the manning levels on the labellers in B1 can be undertaken safely or without increasing the risk to employees. The two employees who will be rostered to operate the three labellers will be undertaking work within their current classification that they already carry out for a significant period of each shift when the third employee is on a break. I am not aware of any reasonable basis for the employees or the union to withhold consent to the implementation of this change.” 17

[32] Mr Gary Woodburn is the General Manager, Southern Operations and has been employed by the Applicant for just over a year in that role. He was previously employed by Heineken UK as Brewery Manager. On commencing work with the Applicant he stated he was made aware of a series of proposed operational improvements involving changes to work practices that would impact on 50 existing roles at the Abbotsford site. Mr Woodburn said the Applicant considered the July 2012 work trial on the B1 labeller to be successful and subject to any legitimate concerns raised by the Union the changes should come into operation from August 2012.

[33] He attended a meeting with Company and Union representatives on 19 September 2012 at which he expressed concern about the delays in implementation. Stop work action then occurred on 26 September, leading to the Applicant obtaining an Order from the Tribunal to stop United Voice and its members from engaging in unlawful action. On 2 October he briefed all teams on site about the unlawful action and the events leading up to it. He was not challenged in any of those meetings about the information provided to employees. Further correspondence was exchanged between the Applicant and the Respondent in October about a range of issues, including the proposal to deman the B1 labeller. In correspondence dated 17 October from the Union it indicated:

“The Union does not consent to CUB demanning the B1 labellers because:

There are significant OH&S concerns created by CUB proposal to deman the B1 labellers

There are as yet unaddressed work value issues created by CUB’s proposal to deman the B1 labellers.’” 18

[34] A further meeting took place with the Union on 19 October but Mr Woodburn said the Union repeatedly refused to provide any details about the objection to changes to the B1 labeller manning. He stated:

“UV has presented no valid reason for refusing to share with CUB the basis upon which UV is withholding its consent to implement the changes. In my opinion, UV is intentionally frustrating and delaying the implementation of the changes and has no genuine basis for doing so.” 19

[35] He said the Applicant has estimated this delay has cost them approximately $360,000 and if further delays occur it was possible more volume will leave the site. Mr Woodburn was asked in cross examination how the Company determines where production is located. He indicated in response:

“It can be a number of variables. So how close you are to supply, the area that it’s sold and also cost and quality. So there is no significant difference in quality between the two major sites but one of the driving factors has been cost of production and efficiency and we’ve seen volume move from Abbotsford to Yatala over the last two or three years.” 20

[36] In regard to the changes in the filtration area Mr Woodburn was aware two options regarding additional allowances were put to the Union in December 2011 to progress the Brewing Powder role position. However, in the subsequent enterprise bargaining negotiations the Company decided to increase its pay offer and this superseded any previous discussions regarding payments to Brewing Department employees. The work trial in the filter room subsequently took place in August 2012. Mr Woodburn said:

“From the company’s perspective, and in my opinion, the work trial was successful as there were no delays or issues that arose. It was clear that following the work trial the powder role could be reduced.” 21

[37] He was asked in cross examination whether he had been told after the work trial in the Brewing Department the employees would accept the change if the 50 cent allowance was paid. He stated in response:

“Not at that time. There had been a clear position made back in February, from my understanding, that we’d put a full and final offer on the table which had been rejected. In between that we then had EA and during that EA we’d improved the company’s offer based on a request from United Voice to recognise the changes that had been proposed in May 2011 which we duly did. So there was a full and final offer on the table that had been rejected and then in between we had an EA where there had been a request to recognise the changes that had been announced in May and we duly did that. We communicated that back to the site.” 22

[38] Mr Woodburn also rejected a suggestion the Applicant was not committed to safe work practices. He stated:

“I don’t agree with that strongly. I struggle to understand where that viewpoint would come from because of the work that we’ve carried out on safety so far and the amount of capital that we’ve spent on safety concerns as well. So somewhere around about 40 to 50 per cent of our cap ex has been spent on safety improvements.” 23

[39] He indicated that amounted to around five million dollars each year.

[40] The Respondent does not consent to the changes in manning proposed by the Applicant. It provides two principal reasons in support of this position. It submits the Applicant has failed to follow the steps required under the Act to vary an agreement. Secondly, it has “reasonable reasons” for withholding its consent to the changes proposed.

[41] In regard to the changes in the Brewing Department it does not submit the work trial was unsuccessful. However, it submits the Applicant has reneged on an offer to provide an additional allowance to the employees and it is open to the Tribunal to find the Union can withhold consent to the changes until that offer is reinstated.

[42] In regard to the B1 Labeller dispute the Respondent submits Division 7 Subdivision A and B of the Act set out the requirements that apply to vary an Agreement. It submits the Applicant has not complied with those provisions and therefore the Tribunal cannot vary the Agreement as the Applicant requests. This submission derives from the fact Appendix J - “Manning Tables” contains details about agreed manning in the Packaging department. The Respondent acknowledges manning levels can be varied during the life of the Agreement. However, it submits the Applicant in the present matter has failed to follow the steps contained in the Act if an Agreement is to be varied. In this context it refers, in particular, to the provisions in the Act dealing with “Variation of Enterprise Agreements by Employers and Employees” and the provisions contained in ss.209 and 210 in terms of when a variation to an enterprise agreement is made and then approved by the Tribunal. In making this submission the Respondent acknowledges it was not raised at the time when other manning changes were considered by Senior Deputy President Kaufman during earlier proceedings in 2011 dealing with similar provisions in a previous agreement between the parties because:

“...we were unaware of the jurisdictional issue at the time of Kaufman's decision we are now alert to it and the Tribunal needs to be alert to it as well.” 24

[43] It accordingly submits the manning tables in Appendix J are “hard numbers” that constitute an employment condition at the site. It submits the Tribunal is, in turn, being asked to vary the Agreement by making the orders sought by the Applicant. In this context it refers to the provisions of s.207(3) which provides:

“A variation of an enterprise agreement has no effect unless it is approved by the Fair Work Commission under section 211.” 25

[44] The Respondent also refers to the provisions in Clause 6.4 of the Agreement which provides:

“Subject to the terms of the FW Act any change or alteration in existing pay or employment conditions set out in this Agreement can only occur by agreement between the parties to this Agreement, except where provided for in clause 23 of this Agreement.” 26

[45] It also submits the Union is withholding consent on two further grounds:

“a. That Union members have real concerns about the occupational health and safety of the workplace in the event that the company’s proposal is implemented without any consideration of existing hazards in the workplace.

b. That the company has refused to discuss compensating the workers who remain behind for the productivity improvement the company will get from them if the B1 Labeller manning levels are varied. ” 27

[46] In support of this position it submits the Company managers are not objective observers for the purpose of deciding whether the Union is being reasonable or not. It submits the Union is being reasonable in opposing the changes in circumstances where its members have real, documented, unaddressed health and safety concerns in the workplace, and are not being adequately compensated for productivity improvements sought by the Company.

[47] Mr Brett Thorne works in the B1 plant which fills the packages with beer. He is currently employed as a machine operator and has worked as a forklift driver in the past. He is also the Health and Safety Representative on his shift and a workplace trainer able to assess other employees working on the various machines he has been trained on. He stated his primary duty is to keep the machine running by maintaining its supply of raw materials. The main duties are to monitor the in-feed and the outgoing product, monitor the quality of the labelling process, feed the machines with raw materials to ensure they run continuously, set up and pack raw materials, and cleaning upkeep for assured quality, where possible. He stated the B and C labellers are manned by individual operators, except during breaks when one operator will man the two machines.

[48] He stated the worst time for a machine operator is when the machines are having problems. This situation was manageable now because one operator can deal with the problematic machine whilst the third operator keeps the machine running.

[49] Mr Thorn stated he both observed and worked as an operator during the work trial. He told Mr Cousins after the third week of the trial it had failed for the following reasons:

“a. Week two was a disaster. Every labeller had problems. It was impossible to handle with only two operators. All of the workers told me that they found it impossible that week.

b. Workers were unable to properly complete quality checks during week two. This increases the stress on workers because they can be held accountable for poor quality product leaving the site.

c. There is no way to confidently ensure that all of the product leaving the three labellers is ok with only two operators.

d. A worker suffered a significant injury in the second week of the trial. He was injured because he did what we always did to clear a reject bottle jam. The technique he used I have used, as has every other worker. We had raised this bottle jam issue with the company in October 2011 and they had refused to fix the problem. He injured himself because they refuse to maintain the workplace. Now attached and marked with “BT-2” is a copy of the safety investigation into the injury suffered by the worker.

e. In one part of the trial, the company tried to run one of the B and C labellers at 1,000 bottles per minute. This resulted in lots of bottles exploding at the exit of the labeller because the machine which rejects faulty bottles couldn’t handle that many bottles per minute.

f. We were unable to keep the floor clean to a safe standard during the work trial. The bottom line is that at the moment the third man can do the cleaning. If we go to two men, we will not be able to do any cleaning at all. If we can’t maintain a clean workplace, it becomes really dangerous with wet floors from, spilt beer, excess water runoff, yeast product build up on the floor which becomes slimy and slippery. Without enough time to clean the floors, they become very slippery and real hazard in the work place.” 28

[50] He stated the employees documented many of these issues but the Applicant did not respond about how it was going to deal with them. He said reductions in manning will put workers at risk because they will be unable to keep up with the work they have to do. He also said current manning levels give employees security about their work and about their share of the workload.

[51] Mr Daniel Koder is also a machine operator in the B1 plant and has been employed at the site for 27 years. He is also the HSR for his shift, a workplace trainer, and a union delegate. He acted as an observer during the work trial and met with Mr Cousins after it was completed. He said Mr Cousins indicated the trial was a success and it was time to implement the changes. Mr Koder said he questioned how it could be said to be successful when a man had been injured. Mr Cousins replied that could have happened regardless of the trial taking place. In Mr Koder’s opinion the:

“...accident happened because of the increased workload. The worker was denied line of sight to his machine while unjamming the reject conveyor. Any worker would be worried about running out of labels and quality issues getting through while he is away from the machine. His mind would not have been on the job.” 29

[52] He also said the third operator does most of the cleaning, and the existing manning levels are in the Agreement to ensure the workers have a safe workload.

[53] In cross examination Mr Koder disagreed in the past it had been common for operators to take breaks of up to two hours each shift. He stated:

“On occasion it might have, yes. But as a regular basis for many a year, well, that just didn't happen.” 30

[54] Mr Dominic Fountain has worked at the Abbotsford site for more than thirty years and has been a union representative at the site for almost all that time. He described the recent EBA negotiations as the least confrontational and quickest in terms of reaching an outcome in memory. It was also considered to be fair outcome:

“...in light of beer sales and the economy in general.” 31

[55] However, the members consistently refused to have an agreement without manning numbers and the negotiating team was instructed to not accept any changes to manning that had not been previously agreed or arbitrated by this Tribunal.

[56] Mr Mladen Medved is also a machine operator and has been employed at the plant for more than twenty five years. He is also an HSR, workplace trainer and union delegate. He was a union observer during the work trial meaning he viewed the trial and took notes. He described the trial as a “farce” for several reasons. Firstly, managers were supervising the work to a greater extent than normal and it was not a test of ordinary working conditions as a result. There were also additional employees on hand when the process changed from one product to another. He also said the trial was physically demanding even though it was not conducted during summer when the plant can get very hot. The new owners of the business have also implemented new checks and controls and these can increase the workload and pressure on the operators.

[57] In regard to the injury sustained by Mr Paul Young he said this issue had been raised some time ago but had not been addressed and that was why the injury occurred.

[58] Mr Paul King works in the filtration area of the Brewing Department and has worked at the Abbotsford site for more than 25 years. He has been a delegate for United Voice and was involved in the recent negotiations in a temporary role. He said he was told by the previous delegate that if the work trial was successful the employees would get an additional allowance. He stated the employees voted to do the work trial on the basis they could claim the allowance at the end of it, and if they rejected the trial they could face an application to the Tribunal and be required to make the changes without receiving any additional allowance.

[59] Mr King said the trial was conducted in good faith. A number of concerns were noted and forwarded to management to assist in the work reorganisation. He said at this time he was given a document by Ms Weir setting out the Company’s position. It included details of the allowance discussed at an earlier point. He subsequently advised management the employees would be accepting the offer of the additional 50 cent allowance. Mr King also stated he had never said the work trial was not successful. He said:

“My concern is not about the Work Trial itself, but the backflip by CUB management, the denial of the offer being valid and the unprofessional and discourteous manner in which CUB has dealt with this matter at the local level.” 32

[60] Ms Laura Stevens is a Senior Industrial Officer with United Voice and has been in this role since 2007. She had joint carriage of the negotiations regarding the new enterprise agreement at the Abbotsford site and attended around 13 meetings before the Agreement was concluded. On 17 May 2012 the Company and the Union held a joint meeting with employees at which the Company offer was outlined. She said:

“At this meeting Mr Woodburn conducted a presentation that explained the process of coming to the current offer. In this presentation he said words to the effect that the wage offer reflected a base position of CPI and included recognition of the productivity gained through improvements to clause 26 of the Agreement and productivity gained through the changes to manning that have actually taken place.” 33

[61] Mr Paul Young has worked in the B1 warehouse since commencing work at Abbotsford in 2003 and has worked on the labellers for the past six years. He stated when the machines run at full pace an operator is kept busy. He said there is more pressure when employees are covering for another employee taking a break. The first break occurs two hours into the shift and the next five hours into the shift. There is an hour and a half between breaks when all staff are working. He stated the workload increases by 50 per cent during breaks but the employees can cope because of the hour and a half recovery time they have in between breaks.

[62] Mr Young participated in the work trial and was injured whilst trying to clear a jam with the use of a metal pole. He stated the bar got caught in an exposed pinch point that had not been covered with a guard. He repeated the incident when attempting to demonstrate how it occurred. He stated if the changes were introduced his workload would increase by 50 per cent for the entire 8 hour shift.

Consideration

[63] This dispute involves a number of employees who have long periods of service at the Abbotsford site. Several of the Respondents witnesses are clearly influential in their workplace with several being the elected Health and Safety Representatives, Union site delegates, and workplace trainers. They are understandably concerned about the impact of changes to long standing manning arrangements. At the same time the evidence provided on behalf of the Applicant emphasises the situation confronting the Abbotsford site, not just from other brewers, but also breweries within the SABMiller Group. The brewery at Yatala in Brisbane was referred to particularly in this context. The evidence of the General Manager, Southern Operations of CUB, Mr Gary Woodburn, referred to the differences in costs of production between sites and decisions made as a consequence about where to source production. The Abbotsford site has already, in recent times, had to close one packaging line because of a decision by the Applicant to shift production to Yatala.

[64] I have had regard to all of the submissions and evidence in coming to a decision in this matter. The Applicant submits the situation confronting the Abbotsford site provides a clear and evident operational requirement for making the changes in manning in the packaging and brewing areas now proposed. Production has already been recently relocated from the site due to comparative production costs. The evidence of Ms Weir also points to changes in the brewing process, introduced by the new owners, that has reduced some manual processes and the overall workload in that area. The Respondent on the other hand emphasises that changes should not simply be about productivity improvement through reduced manning.

[65] The Applicant submits the existing Agreement enables it to make the changes proposed, although this is contested by the Respondent. The Applicant points to Clause 40 which states manning levels in place at the commencement of the Agreement can be varied during its life in accordance with Appendix I in the Agreement.

[66] Appendix J is clear in indicating it refers only to:

“Agreed manning levels for Packaging at the time this Enterprise Agreement was established.” 34

[67] That explanation is reiterated at the foot of Appendix I which states:

“The following tables set out the Packaging manning levels at the time this Agreement was established.” 35

[68] Appendix I also contains the statement:

“Manning numbers may need to change from time to time. In order to facilitate discussions on this issue the parties have agreed that the following principles will apply in those discussions.” 36

[69] As indicated, the Respondent submits this is not the end of the matter. It acknowledges changes in manning can occur through the processes set out in Appendix I, but if they result in changes to the manning numbers set out in Appendix J then change can only be implemented if the process for varying an agreement under the Fair Work Act has been followed. The Respondent refers to the decision in John Holland Group Pty Ltd v. AMWU and Ors 37 in support of this submission, however, that matter quite clearly dealt with the proposed variation of an enterprise agreement, in that case the nominal expiry date of a Greenfields agreement, which is very different to the situation in the present circumstances.

[70] I am not persuaded by the Respondent’s submissions in this regard. I note, firstly, they were not pursued by the Respondent when a similar dispute was dealt with by Senior Deputy President Kaufman, although I also note the explanation as to why that was the case. Regardless, it did not prevent the Senior Deputy President finding he was able to deal with the matter, and able to make the decision he subsequently handed down, without an application pursuant to s.210 being required to give effect to that outcome. Presumably Senior Deputy President Kaufman had satisfied himself the proposed changes did not involve a variation to the Agreement and he had jurisdiction to make the decision he did.

[71] Secondly, I am satisfied the changes being proposed by the Applicant are not changes to the existing Agreement; they are instead changes to existing manning proposed in accordance with the provisions of the existing agreement. Appendix J exists in accordance with the provisions of Clause 40.4 of the Agreement, which states:

“The manning levels that existed at the commencement of this Agreement (which may be varied during the life of this agreement in accordance with Appendix I) are shown at Appendix J.” 38

[72] Appendix I in turn exists in accordance with the provisions contained in Clause 40.3 which states:

“Appendix I sets out the relevant principles that will apply in determining manning levels in Packaging.” 39

[73] The principles of Agreement construction are well understood and known. The decision of Madgwick J. in Kucks v CSR Limited 40 (Kucks) has been referred to often in this context, including by each of the parties in the present matter. It dealt with the interpretation of an award provision. Madgwick J. stated:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 41

[74] Whilst made in the context of an award the approach in that decision has also been adopted in relation to the construction of an industrial agreement. In Australian Meat Industry Employees Union v. Coles Supermarkets Australia Pty Ltd 42 Northrop J stated:

“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J., sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.” 43

[75] These decisions indicate ordinary and well understood words are, in general, to be given their ordinary or usual meaning. I am satisfied the words in Clause 40.4 and in Appendix I do not lack clarity or can be said to be ambiguous. In both cases they state clearly manning levels in Packaging may be varied during the life of the Agreement. Further, any such change made as a consequence cannot be said to be a variation of the Agreement because of Appendix J. Again it is clear what Appendix J is. As the opening paragraph states Appendix J is simply a reflection of agreed manning arrangements in Packaging as at the time the Agreement between the parties was “established.” Clause 40 and the consequent Appendix I provide, in turn, for those arrangements to be varied in accordance with the procedure set out in Appendix I. Nothing in that process or any consequent variation in manning requires the Agreement to be varied. The Respondent has provided an explanation as to why this line of argument has not been pursued in similar previous proceedings. Its pursuit could also be a device to endeavour to otherwise unreasonably withhold consent to the changes in manning proposed. Suffice to say I am satisfied on the basis of the usual or ordinary reading of the relevant provisions in the Agreement the proposed changes to existing manning in Packaging, if implemented, do not constitute a variation of the Agreement.

[76] The Applicant relies on the outcome of the work trials conducted in July in Packaging and August in Brewing in support of its submissions the Respondent is unreasonably withholding its consent to the changes in manning proposed. In this context it should be noted the Respondent does not submit the work trial in the Brewing Room was not a success.

[77] The work trial on the B1 Labeller was conducted over three weeks with differing outcomes. Week 2 was described as a difficult week. By contrast week 3 generally ran smoothly. One employee also sustained a shoulder injury in week 2 when attempting to clear a jam. The Applicant submits these outcomes were not a result from the work trial, but simply outcomes of normal operating. It strongly objects to any suggestion the trial exposed employees to any additional safety hazards, and emphasised significant recent capital expenditure on various safety initiatives to demonstrate its commitment in this regard. Evidence was also led, and witnesses cross examined, about past practices in the packaging room where employees took extended breaks meaning for almost three quarters of the shift, on occasions, the labeller was operated by two operators only. The evidence about the length of these breaks and how often they occurred was contested. The Applicant has in any case clamped down on the practice in the past 12 months. However, I am satisfied the labellers have often been run for extended periods in the past with two rather than three operators.

[78] The Respondent submits it has not been unreasonable in withholding consent in the circumstances. It highlights work health and safety issues and refers to the sensitivities around this issue at the Abbotsford site. In this context it refers particularly to the evidence of Mr Thorne in regard to the hazards associated with the operation of the labellers. It submits until these risks have been addressed its members are entitled to withhold their consent to any demanning. It submits in the alternative it is only once those issues identified in Exhibit BT 3 have been addressed that any demanning occurs. BT3 is a draft document entitled “A Hazard Identification and Risk Assessment” and involves a series of reviews of production processes being carried out by seven people drawn from both management and employees. It contains various headings including “Hazard Identification”, “Hazard Description”, “Current Controls” and “Proposed Controls or Improvements (if none indicate no change.)” In a number of cases “No Change” is in fact indicated as being the outcome required. It is not clear the evidence in these proceedings indicates the work trials exposed employees to any additional work health and safety risks. Various Work Trial Observation Sheets were also tendered in evidence in Attachment BT2 to Mr Thorne’s witness statement. Several of the witnesses participated in the work trials either as operators or observers. The Applicant submits the only safety issues referred to in those Work Trial Observation Sheets were those noted by Mr Koder. However, a review of those Observation Sheets in Exhibit BT3 does indicate references to safety are made on a number of occasions by the Observers. The following are a summary of those observations:

• 3/7/12 Afternoon shift - whilst Mr Thorne is working as an operator the Observer notes “Safe steps in area need to be looked at as some of them have lost their grip on top and bottom.” 44



• 3/7/12 Night Shift - Mr Koder is the Observer and notes, “A proper platform must be installed at the A Labeller discharge as operators are using a safety step to get the required height to remove bottles that are faulty but that have not been taken out from the rejector (Very unsafe)!!!” 45



• 5/7/12 Afternoon shift - Mr Thorne is the Observer and notes, “Hot water retractable hose is unsafe. Does not lock therefore could take an eye out.” and “A safety screen needs to be put up at rejector.” 46



• 12/7/12 Night Shift - Mr Koder is the Observer and notes, “Bottles falling off conveyor above head height right above hose station. Operators have said it has been reported many times but has not been guarded. It can also potentially cause serious glass injuries as operators on C labeller have stated that they have been hit by shattering glass as the bottle hits the concrete. Only luck so far has averted an injury from shattered glass. Needs urgent attention!!!!” 47



• 13/7/12 Night Shift - Mr Koder is the Observer and notes, “Bottles jamming still a concern as now the operator needs to put their hands into the jammed fallen bottle area as well as their face. Danger of exploding hot bottle causing cuts and lacerations.” 48

[79] Clearly some safety issues were identified during the work trial by the Observers. However, it is not evident these issues were a result of the work trial. Certainly none of the comments by the Observers suggest the issues identified were a result of the work trial. The Applicant also submits any safety issues identified were attended to immediately.

[80] I am not satisfied it is appropriate to impose a condition upon the Applicant that it commit to make the changes identified in what is only at this stage a draft Hazard Control Improvement document. However, at the same time I have no reason to doubt the commitment by the employees to maintaining a safe and healthy working environment. On balance I am satisfied the evidence does not indicate the work trial created any additional work health and safety issues for the employees involved. This is not to ignore the unfortunate injury to Mr Young which appears to have been due to a combination of factors, including the exposed pinch point and use of a metal bar or pole to clear the jam. Mr Young inadvertently repeated the incident when demonstrating how it occurred. The evidence indicates further engineering has occurred since that time to limit similar bottle jamming occurring. The Applicant has also acted to enforce the removal of unauthorised objects being used by operators, particularly in clearing jams that occur on the line. Again the evidence did not indicate the injury was attributable to the work trial occurring at the time.

[81] The Respondent also submits it is reasonable to refuse to agree to the changes in the Brewing Room because the Applicant has reneged on the offer of payment of an additional allowance conditional upon that change. Mr King, who took over as the acting delegate, gave evidence he was provided with a document setting out the allowances by Ms Weir after the work trial in August and subsequently informed her the “50 cent offer” was the preferred outcome. Ms Weir said she was confident she did not give Mr King the document referred to and in any case was not authorised to make wage or other offers to employees. It was also submitted Mr King was not aware union delegates had previously rejected the Company offer in negotiations earlier in the year.

[82] The Applicant also submits these earlier negotiations about a specific allowance in the Brewery Department were overtaken by the enterprise bargaining negotiations. The wage offer put to employees in May 2012 encompassed all changes in manning foreshadowed since May 2011, whether yet implemented or not, and superseded any earlier discussions about payment of an allowance for the changes in the brewery room. Mr Woodburn’s evidence, in particular, was that the changes in manning proposed in May 2011 were encompassed within the increased 4 per cent pay offer. It had been increased to that level to recognise what had been achieved from the potential gains identified in May 2011. The evidence of the Union organisers involved in the EBA negotiations indicated a different understanding about the terms of the agreement between the parties. The evidence of Mr King, the acting delegate, also indicates an understanding the allowance was still “on the table.” 49

[83] It is possible to conclude there was some genuine misunderstanding about what the 4 per cent offer encompassed. Mr King in his role as acting delegate may not have been aware of how the earlier negotiations had concluded. There is no clear evidence the Applicant has reneged on any previous offer. In any case given the No Extra Claims clause in the Agreement it does call into question whether it is reasonable to withhold consent to the changes on the basis of a claim for an allowance the Respondent is precluded from pursuing by the terms of the Agreement it has entered into. Appendix I does foreshadow the possibility of reclassifications occurring and new Pay Grades in accordance with Clause 23. However, it has no provision for other forms of entitlement associated with changes in manning.

[84] A range of issues were also raised in evidence and submissions about the impact upon the employee’s workload of the changes in manning arrangements. The evidence did indicate the workload can fluctuate due to a range of factors, including the nature of the production run, faulty equipment or other malfunctions. The conditions in the room can also vary with evidence the working conditions are more oppressive in warmer weather. The evidence of both Mr Siccita for the Applicant and Mr Thorne for the Respondent pointed to the fluctuations that can occur with some weeks being described as “good weeks” and others as “bad weeks”. The work trial period demonstrated this situation with week two being described as a bad week whilst week three was generally viewed as being a good week with few incidents. The evidence has also been referred to of past practices when excessive breaks were taken by operators meaning for long periods in a shift the labellers were operated by two operators only. There was also some conflicting evidence about what was required in terms of the operators maintaining the raw materials required to keep the machines operating. However, there was limited evidence, on balance, about any excessive workload and it was not a significant issue highlighted in the work trial observations.

[85] The Respondent and the employees are understandably concerned about changes to manning which alter long standing arrangements. Clearly they are concerned about issues to do with job security, compensation and workload. That is accepted and acknowledged. However, they are also required to commit to what has been negotiated and agreed in the current Agreement entered into between the parties. The environment in which the Applicant is operating has also changed. It has already lost production volumes to another site. Significant redundancies have already occurred as a result. The evidence of Mr Woodburn, in particular, suggests the Abbotsford site continues to compare unfavourably with its main competitor within the group in Australia being the brewery at Yatala. The terms of Appendix I are clear:

“The Union will not unreasonably withhold its consent to changes in manning numbers to take account of changes in technology or operational requirements.” 50

[86] The Applicant is confronting changed operational requirements. The evidence of Ms Weir about the impact of those changes in the Brewing room and the evidence of Mr Cousins and Mr Siccita in Packaging is referred to, in particular, in this context. Mr Woodburn’s evidence also illustrates the challenges confronting the Abbotsford site, both from within the group as well as from external competitors. Much of that evidence also demonstrated a significant level of commitment and determination to make the Abbotsford site viable in the longer term.

[87] Despite the changes proposed operators in packaging and the filtration team will continue to work within their competencies, skill levels, classifications and training in the same way Senior Deputy President Kaufman found when dealing with changes to manning in Packaging in December 2011. In conclusion, having considered all of the evidence and submissions I am satisfied the Union has unreasonably withheld its consent to what the Applicant now proposes and I determine the Applicant can now proceed to implement those changes on a permanent basis. I direct the parties to confer about the terms of any orders required to give effect to this decision.

COMMISSIONER

Appearances:

J Tuck and S Clarke of Corrs Chambers Westgarth on behalf of the Applicant.

P Sutton and I Patin on behalf of the Respondent.

Hearing details:

2012.

Melbourne:

18 December;

19 December;

20 December.

Final written submissions:

Applicant filed final written submissions on 10 January 2013.

Respondent filed final written submissions on 11 January 2013.

 1   Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 at Appendix I

 2   Ibid at cl.6

 3   Ibid at cl.40

 4   Ibid at Appendix I

 5   Ibid at Appendix J

 6   Applicant Outline of Submissions at paragraph 21

 7   [2004] QIRComm 1; 175 QGIG 128  (5 January 2004) at page 9

 8   Ibid

 9   Exhibit T4 at paragraph 17

 10   Ibid at paragraph 23

 11   Ibid at paragraph 34

 12   Transcript PN626

 13   Exhibit T4 at paragraph 39

 14   Exhibit T5 at paragraph 40

 15   Transcript PN725

 16   Transcript PN323

 17   Exhibit T2 at paragraph 35

 18   Exhibit T1 at paragraph 55

 19   Ibid at paragraph 57

 20   Transcript PN94

 21   Exhibit T1 at paragraph 70

 22   Transcript PN173

 23   Transcript PN473

 24   Transcript PN1917

 25   Fair Work Act 2009, s.207(3)

 26   Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 at cl.6.4

 27   Respondent’s Outline of Submissions at paragraph 22

 28   Exhibit S5 at paragraph 42

 29   Exhibit S2 at paragraph 25

 30   Transcript PN1052

 31   Exhibit S6 at paragraph 14

 32   Exhibit S3 at paragraph 38

 33   Exhibit S1 at paragraph 21

 34   Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 at Appendix J

 35   Ibid at Appendix I

 36   Ibid

 37 [2010] VSC 322

 38   Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 at cl. 40.4

 39   Ibid at cl. 40.3

 40 (1996) 66 IR 182

 41 (1996) 66 IR 182 at page 184

 42 (1998) 80 IR 208

 43 (1998) 80 IR 208 at page 212

 44   Exhibit S5 at BT1 Part 2

 45   Ibid

 46   Ibid

 47   Exhibit S5 at BT1 Part 3

 48   Ibid

 49   Exhibit S3 at paragraph 16

 50   Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012 - 2015 at Appendix I

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