Greg Rogowsky; Nigel Willis; Donald Hill; Bradley Quick
[2020] FWC 1116
•28 FEBRUARY 2020
| [2020] FWC 1116 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Greg Rogowsky; Nigel Willis; Donald Hill; Bradley Quick
(AG2018/5604)
Meat Industry | |
DEPUTY PRESIDENT BEAUMONT | PERTH, 28 FEBRUARY 2020 |
Application for termination of the WAMMCO International (Katanning) AMIEU Processing Agreement (2013) – views of employees – veracity of petition – non-English speaking employees – reliance on information when forming views.
[1] On 5 October 2018, Messrs Rogowski, Will and Quick (the Applicants) applied under s.225 of the Fair Work Act 2009 (Cth) (Act) to have the WAMMCO International (Katanning) AMIEU Processing Agreement (2013) (Agreement) terminated under s.226 of the Act. The Agreement had passed its nominal expiry date.
[2] The matter is perhaps somewhat unusual. Applications under s.225 are generally brought by employers, but in this case three employees of Western Australian Meat Marketing Co-operative Limited T/A WAMMCO International (Wammco) saw fit to make the application and in doing so were supported by Australasian Meat Industry Employees Union (Union).
[3] The employees all work at Wammco’s abattoir in Katanning. The abattoir is a single species plant, 1 meaning, it kills sheep and lambs.2 Stock are in-loaded into the stockyards where they are ‘yarded’, ready for slaughter.3 As the process moves along, the stock move up through the yards until they come to the slaughter floor.4 Just before being slaughtered they are stunned using an electric stunner.5 There is usually a slaughter person on shift, who, because of the ‘Muslim markets’, is usually a ‘Muslim Registered Slaughter Man’.6 The Slaughter Man cuts the throats of the sheep or lambs.7 And, thereafter the stock is shackled by the shackler, who shackles the legs and attaches the carcass to the chain – and so the process goes on.8 The process requires Wammco to have several positions that are variously classified under the Agreement.
[4] Wammco provides a bonus payment for head of stock processed by the slaughtering team beyond 4350 head in a day. The plant operates four by eight hour days and a six hour day on a Friday. 9 The slaughtering conveyor normally operates at 8.5 lambs per minute or 8 mutton a minute.10
[5] Wammco, it should be said, has adopted a neutral view on whether the Agreement should be terminated. Nevertheless, it has assisted the Commission with filing of various materials, as directed.
[6] The Union are not a party to the application, but I considered that their view carried weight for several reasons. There was no controversy over the Union’s prominent, if not exclusive, coverage of employees who work in the meat industry. Unsurprisingly then, it is involved in the negotiations with Wammco for a replacement regarding the Agreement and had assisted with the preparation of this application. That assistance included the circulation of a petition amongst employees to enable them to express their view on the termination – the Union having explained the impact the termination would have on terms and conditions of employment. In addition, whilst involved in an application under s.185 to have a proposed agreement approved (the relevant application was later discontinued in March 2018), the Union had prepared a detailed analysis comparing the Agreement with the Meat Industry Award 2010 (Award). Further, the Agreement was, at cl.1.2.2, said to bind the Union. Suffice to say on receipt of an application under s.590 of the Act, I considered that the Union’s input would be of great assistance and decided to hear from it.
[7] The application has been on foot for some time. When the application was initially made under s.225, it was dismissed. However, following a successful appeal to the Full Bench, the matter was remitted for re-determination. In view of the time that had passed from the initial hearing of the application, the parties filed further witness statements, submissions, and with due respect to the parties, rather baffling and voluminous excel spreadsheets drawing comparisons between rates of pay under the Agreement and the Award.
[8] It was extraordinarily difficult to compare the spreadsheets provided on behalf of the Applicants with those of Wammco, and in addition compare both with the Award. A large part of the problem was that the classifications in the Agreement were not easily matched with the Award. Wammco was directed several times to assist the Commission with the provision of classification matching, modelling and submissions. It was not the case that Wammco was being unhelpful, to the contrary, the classification matching was just very challenging.
[9] While the Union had similarly attempted to model a comparison of the pay rates between Award and the Agreement, the modelling was of less utility. The Union relied on several assumptions and was not similarly positioned, as the employer was, to provide the level of assistance required to ascertain whether the termination of the Agreement would likely result in a decrease in pay rate for relevant employees. In the circumstances of this case, it was my view that this, being a decrease in pay rate, was a relevant consideration regarding the likely effect the termination would have on the employees, particularly in circumstances where there was no undertaking proffered by Wammco to safeguard, for a period, current rates of remuneration actually paid.
[10] Appreciating that the decision is not succinct, I note from the outset that the application to terminate the Agreement is refused and is therefore dismissed. My detailed reasons follow.
BACKGROUND
A replacement agreement
[11] Mr Bessell, Plant Manager for Wammco, gave evidence that he had been involved in negotiations with the Union for a replacement enterprise agreement, 11 which was ultimately voted up by relevant employees and lodged with the Commission for approval.12 According to Mr Bessell, during the approval process the Commission identified that some of the agreement content was said to be ‘discriminatory’. This, said Mr Bessell, was a major factor in Wammco’s decision to withdraw the application and to recommence negotiations with the Union.13 When questioned further about this point at hearing, it was apparent that the Commission had identified numerous issues concerning the proposed agreement that needed, according to Mr Bessell, to be renegotiated.14 Subsequently, the application for that proposed agreement was discontinued in March 2018.
The views of the employees and union about the termination of the Agreement
[12] During the first hearing and thereafter the one before me, some employees of Wammco saw fit to file statutory declarations, as did Ms Kennedy, Lead Organiser for the South Australian and Western Australian branches of the Union. 15 The employees did not give evidence at the hearing. However, I have considered their evidence, appreciating its veracity was unable to be tested, but nevertheless considering that it constitutes the view of that employee. Ms Kennedy did attend the hearing and gave a comprehensive account of the bargaining process to date, steps taken to assist the Wammco employees to apply to have the Agreement terminated, and her view of the effect that the termination would have.
Evidence of Ms Kennedy
[13] Ms Kennedy has been engaged in the negotiations for a new enterprise agreement with Mr Bessell. Mr De Silva, a Western Australian delegate, and various delegates from the Wammco site, have also been involved in those negotiations, which commenced on or about 17 April 2018 and continued until 24 September 2019. 16
[14] According to Ms Kennedy there have been several bargaining meetings since the Notice of Employee Representational Rights was issued on 9 June 2018. 17 Ms Kennedy stated she has had three telephone conference meetings with Mr Bessell on 27 June 2018, 23 October 2018 and 22 March 2019, and that the remainder of the meetings were in person at Wammco’s Katanning offices, on 5 June 2018, 28 August 2018, 27 November 2018, 4 April 2019, 11 June 2019 and 24 September 2019.18
[15] Ms Kennedy gave evidence that there are major areas of difference between the bargaining positions of Wammco and the Union’s members in relation to certain claims. As of the last bargaining meeting on 24 September 2019, those differences could be summarised as follows:
a) shift and penalty rates (in order to ensure that final enterprise agreement is BOOT compliant);
b) meal allowances – frequency, and whether they were paid or unpaid; and
c) range of non-compliance issues regarding Wammco’s running of the abattoir. 19
[16] According to Ms Kennedy, in the bargaining meeting of 24 September 2019, the outstanding issues (the differences) were unable to be resolved. 20 Mr Bessell is said to have proposed that the negotiations for a new enterprise agreement be suspended until the result of this application was known, at which time Wammco would recommence negotiations with a view to finalising the new agreement.21 Ms Kennedy said that the Union agreed to this approach.
[17] According to Ms Kennedy, she considered that the conclusion of the application would provide both sides with clarity as to the matters in dispute, therefore allowing an agreement thereafter to be finalised. 22 To expand, Ms Kennedy’s evidence was that the view of the members and Union was that the termination of the Agreement would allow the negotiations to be premised upon the Award rather than the old Agreement. The terms of the new agreement (having been based on the Agreement) had, according to Ms Kennedy, compliance issues regarding the better off overall test (BOOT). The termination of the Agreement would lay the compliance issues to rest, said Ms Kennedy.
[18] In the proceedings prior to the appeal, and the hearing regarding these proceedings, Ms Kennedy gave evidence concerning the views of relevant employees. The content of Ms Kennedy’s Statutory Declaration signed on 5 October 2018, 23 provided a detailed account of the process undertaken to have the relevant employees complete a petition. In short, Ms Kennedy provided the following candid account:
a) in advance of her visit to the Wammco site on 27 and 28 August 2018, Ms Kennedy sent flyers to the workforce (distributed on 24 July 2018) that were designed to show the employees the difference between the Award conditions and those provided for in the Agreement;
b) on her site visit she spoke to the employees about the petition and briefly explained that the purpose of collecting signatures was to demonstrate support for terminating the nominally expired Agreement, and that signing was voluntary. Ms Kennedy stated that she encouraged the employees to read the petition heading, which was on the top of each page of the petition;
c) the employees were, in Ms Kennedy’s view, keen to sign the petition albeit a small minority declined;
d) she made sure to keep control of the petition at all times to enable her to verify the signatures;
e) as she was aware that a number of the employees were non-English speaking, she made sure to identify employees who could translate – but in the skin sheds she was unable to locate an employee translator so did not ask those employees to sign; and
f) over the course of two days, Ms Kennedy and another Union permit holder collected 140 signatures. However, Ms Kennedy said that she was aware that there were approximately 290 employees on site and so she asked a Union delegate to obtain a few more signatures in her absence (the Union delegate obtained ten more signatures). 24
[19] At hearing, Ms Kennedy elaborated on the process she undertook at site over the period 27 to 28 August 2018. Ms Kennedy stated to the effect that the Union stayed at the site for the two days doing a top and tail of the Act. Reference was made to the different flyers and documents that had been distributed leading up to that point. Ms Kennedy emphasised that all employees who had signed the petition did so voluntarily.
[20] Ms Kennedy stated that the Union was happy to negotiate a new agreement with Wammco and the termination of the Agreement did not affect that view. 25 It was the view of the Union that the effect of the termination would be to provide the relevant employees access to more favourable provisions under the Award.26
Evidence of Mr Smith
[21] Mr Smith is the Federal Secretary Treasurer of the Union. 27 Prior to holding that position he was the South and Western Australian Branch Secretary of the Union.28 Mr Smith gave evidence that there appeared to be no issue between the parties that the establishment in question was a meat processing plant for the purposes of award coverage and the application.29
[22] Mr Smith noted he had prepared various information to assist the Commission in understanding the Union’s objections to the continued operation of the Agreement – including an ‘Excel workbook’ that calculated the various advantages and disadvantages of the Agreement to compare for overall financial outcomes. 30 Further, Mr Smith had provided a summary analytical document which compared various clauses of the Agreement to the Award, and included the Union’s observations on whether the clause was advantageous or disadvantageous when compared to what would apply if the Agreement did not exist.31
[23] Mr Smith stated that the Agreement provided for wage increases in line with the national minimum wages adjustments for the six years of its continued operation. 32 Because of the timing of the adjustments under cl. 1.4 of the Agreement, it had been common for the Agreement rates to fall below the Award rates, triggering s.206 of the Act. It was the Union’s view that whilst the Act provided protection to the employees in this event, the fact that the Agreement fell below the Award from time to time was disadvantageous to the employees.33
[24] In relation to the Union’s modelling of rates of pay, Mr Smith gave evidence that the modelling had been based on known factors of the Agreement, along with factors that were possible under the Agreement and therefore must be considered when assessing whether the employees would be better off overall under it. 34 Mr Smith provided a detailed analysis of the Union’s comparisons between the rates of pay under the Agreement and the Award.35
[25] Mr Smith stated that cl. 3.2 of the Agreement allowed for discretionary grading (Mr Smith was referring to the classifications) of the employees including the ability to downgrade employees as a disciplinary process. 36 Concerning the classifications, Mr Smith’s evidence was that he was working on the assumption that the indicative tasks mentioned in each of the levels in cl. 3.3 of the Agreement was matched to the appropriate level of the Award.37 Mr Smith acknowledged that the classifications between the Agreement and the Award did differ on a large number of the stated tasks.38 However, based on the Union’s calculations, the Wammco rates of pay did, in the majority of cases, provide a higher than Award hourly rate.39
[26] At hearing, Mr Smith made a pertinent point concerning the difficulty with drawing comparisons between rates of pay under the Agreement and the Award with respect to the classification system:
Counsel: Right. So do you agree that that has been, for the purposes of these calculations, has the slaughter floor classification for the comparison been appropriately described by the employer when preparing this previous calculations chart?---
Mr Smith: Look, from this spreadsheet it's almost impossible to give an answer to that because you actually need to know what tasks they're performing and I am aware that there is other background information that the employer has used for this calculation where they know all of these numbers here line up, I think, with actual people performing tasks. So I - from looking at this spreadsheet I don't actually know what tasks they're doing. The employer might but I don't so it's hard to say whether they're level 4 or level 6 would be the appropriate task. 40
[27] In giving his evidence Mr Smith explained that the spreadsheet attached to his witness statement was originally treated as a BOOT assessment noting ‘this spreadsheet wasn't designed for this particular hearing, this was designed for the original BOOT assessment, we give value to those things that we know that you can give value to’. 41 Evidence was provided about meal breaks. In this respect Mr Smith explained:
In effect, because they don't get a paid 10-minute afternoon break, effectively they are performing 10 minutes more work than they would do under the award. So whilst we accept that if we were working under the award it is likely that no monetary change would happen because they would simply get, you know, a 10-minute break that's part of paid time, under the agreement they've actually performed 10 minutes more work than they would have under the award and so we think it's fair to give a value to that work given that the employer's making a profit out of that time, we say that it's fair to give a value and the value we've treated as an overtime situation… 42
[28] Mr Smith highlighted the importance of entitlements other than the rates of pay. Continuing with his evidence concerning meal breaks, Mr Smith stated:
In the meat processing facility such as the abattoirs the people are basically tied to a conveyor line and if they want to go to the toilet, clean their hands, sharpen their knives, whatever else they need to do, then they - unless the chain is actually stopped, that they need to get someone to cover for them and that may take some time. So effectively - and of course you've got to find the people to do that. Obviously it's not ideal to stop the chain because one person going to the toilet means that at a chain speed of about nine carcasses a minute or eight and a half carcasses a minute obviously a lot of production is lost while someone goes to the loo and so these breaks - we need to stop every now and again during the day, we actually need to stop the chain physically for, you know, five or 10 minutes at a time during the day to allow everyone to go and do all of those things. 43
[29] Mr Smith stated that cl.2.1.2 was problematic and contrary to the Award because it authorised Wammco to require an employee to transfer from full time employment to casual employment to suit production requirements and to take account of livestock supply. 44 On this point Mr Smith stated, that daily hire provisions were specifically inserted into the Award in the early 1960s and have remained for the purpose of catering for the types of fluctuations - assumedly those referred to in cl. 2.1.2.45 Under the Award, daily hire carried a 10% loading for employees so engaged, and therefore, according to Mr Smith, the Agreement could defeat the application of this loading, or alternatively, the requirement for Wammco to continue to pay wages during those periods of fluctuation.46
[30] Clause 2.1.9.2 of the Agreement refers to the ability to stand down employees for periods referred to as ‘unavailability of suitable raw material for processing’. Mr Smith gave evidence that except in very limited circumstances, it was not possible under the Award to stand down permanent full-time employees without pay. 47 He said this was particularly the case when the stand down was for a commercial reason.48
[31] Clause 2.1.11.1(f) of the Agreement regarding termination of employment, permitted the termination of employment with one weeks’ notice, irrespective of length of service, if it was only ‘temporary because of slackness of trade’. 49
[32] Mr Smith continued with his very detailed analysis of the disadvantageous clauses in the Agreement. 50 Mr Smith drew attention to the issue of overtime rates of pay, noting that if the intent of the Agreement (which he questioned) was to provide overtime at the rate of time and a half, this was less than the Award overtime rate of double time after three hours.51
Evidence of Mr Rogowsky
[33] While Mr Rogowsky did not give evidence at hearing, he had provided a statutory declaration 52 expressing that it was in the public interest for employees to receive no less than the ‘minimums contemplated by the applicable Modern Awards’ – hence why he considered the termination of the Agreement was not contrary to the public interest.53 Mr Rogowsky outlined a number of conditions he considered were less beneficial than those provided by the Award, they were:
a) transfer from full-time permanent employment to casual employment (and vice versa) on one weeks’ notice (cl. 2.1.2);
b) unpaid stand down provisions (cl. 2.1.9.2);
c) unpaid periods such as those provide in cl. 2.1.9.2 which affected service and leave accruals;
d) ‘temporary’ termination of employment with only one weeks’ notice (cl. 2.1.11.1(f));
e) wide span of ordinary hours of work (cl 2.2.1.2);
f) all overtime paid at only time and a half (cl 2.3.1 and 3.1);
g) exclusion of allowances such as cold temperature and first aid allowances (cl.4); and
h) leave conditions less than the safety net, including lower accruals, no leave loading and no additional week of leave for shiftworkers (cl.5).
[34] According to Mr Rogowsky, Wammco was receiving a competitive advantage when compared to other companies which paid in accordance with the Award. Mr Rogowsky considered that he would be better off under the Award, which would be the effect if the termination of the Agreement was to occur.
Evidence of other employees
[35] Ms Crockford, a day cleaner at Wammco, stated in her statutory declaration that she opposed the termination of the Agreement observing, ‘[T]his will mean a drop in my wages by the following amounts: Annually $4,941.87 Weekly $95.03. 54 Mr Antonio, a labourer and classer at Wammco, provided somewhat of an emotionally charged statutory declaration, opening with a sentence that read, ‘[T]hat I am appalled that the Australasian Meat Industry Employers Union can put forward a apppael [sic] to rid and terminate the Wammco Enterprise Bargaining Agreement to go to Federal Award where levels are lowered and pay decrease and uncertainty of a years full of work [sic].’ Mr Antonio concluded his declaration stating, ‘I am really upset that my work has become unsettled and uncertain because of the unionist ideas’.55
[36] Concerning the Union’s process to complete a petition, Ms Hamlin, a laundry worker at Wammco, expressed:
1. With reference to the Wammco Int (Katanning) AMIEU Processing Agreement (2013) I have grave concerns about the petition process organised by the AMIEU.
2. Wammco Int (Katanning) is an extremely unique meat works.
3. The majority of employees are of different ethnic backgrounds and hence English is their second language.
4. Some workers including English speaking people have stated that they did not understand what they were signing and feel betrayed and angry.
5. To remain fair and honest I believe the petition needs to be redone but with approved translators present.
6. The employees need to be fully informed of what they are signing and in a language they understand. 56
Wammco’s view of the termination of the Agreement
[37] Wammco neither consented to, nor opposed, the application to terminate the Agreement. 57 However, Mr Bessell’s concern was whether the relevant employees had been fully informed by the Union about the impact the termination of the Agreement would have on the current terms and conditions of employment that the relevant employees received.58
[38] Mr Bessell stated that it was his view that the information provided to the employees, addressed some conditions in the Award, in comparison to the Agreement, namely overtime rates, break entitlements and allowances, but that did not accurately take into consideration the advantages to employees under the Agreement. 59
Rates of pay
[39] Mr Bessell explained that he had directed Wammco’s Administration Manager, to prepare ‘calculations for the purpose of the hearing on 29 November 2019 as the calculations used previously were outdated’ as the rates of pay, in both Award and what Wammco was paying, had changed since the first hearing. 60
[40] The modelling compared rates of pay under the Agreement in comparison to those provided by the Award (referred to as the Previous Calculations), and in addition looked at the comparison between actual rates of pay that were paid in practice and the Award (Current Calculations). The modelling was undertaken based upon the employees’ rosters worked.
[41] In short, Mr Bessell’s evidence was that the Previous Calculations resulted in 223 employees being worse off under the Award when compared with the Agreement, both when overtime was included and when overtime was not included. 61 39 employees were worse off under the Award when compared to the Agreement when overtime was not included, and better off under the Award when overtime was included, and 18 employees were better off under the Award when compared with the Agreement both when overtime was included and not included.62
[42] While perhaps not so relevant as the Previous Calculations, on Current Calculations (actual rates of pay), Mr Bessell’s evidence was that 277 employees were worse off under the Award when compared to the Agreement, when overtime was not included and when overtime was included. Three employees were said to be better off under the Award when compared to the Agreement both when overtime was included and when overtime was not included. 63 Mr Bessell gave evidence that he thought that three employees were better off under the Award because the Agreement did not provide a ‘cold allowance’ and two of the employees started prior to the Award’s ordinary hours span.64
Classification levels
[43] As observed, one of the unusual aspects of the Agreement was the classification system. Clause 3.2. of the Agreement sets out:
3.2.1 The classification structure set out below is designed to provide employees with a clear career path, promote multi-skilling and to remove and prevent any demarcation barriers.
3.2.2 The structure is based upon the principle that each employee is graded at a particular level having regard to their skill, competency, experience, and qualifications, not the tasks they may be actually performing on any day or shift. Consequently the employee may be required to perform any tasks within their skill and competency but shall be paid the ordinary level rate of pay appropriate to their classification level, regardless of the work they actually perform.
3.2.3 The approval discretion for the employee’s grading level shall be with the Plant Manager following additional considerations of attendance, behaviour and attitude. New employees with no meat industry experience will commence at Meat industry level 1 unless approved otherwise by the employer and having regard for previous meat industry experience.
3.2.4 Employees will be notified of their initial grade at the time of appointment. Prior skills will be recognised to the extent of the skills appropriate to the position being filled. The rate applicable to the appointed classification shall commence from the first pay period following the decision.
3.2.5 The employer may transfer an employee to a lower grade if their attendance or attitude deteriorates or they cease to hold the skill, competency, experience or qualification required for the grade to which they have been appointed.
3.2.6 The employer will take all practical steps to ensure employees wishing to advance their grade will be given all reasonable opportunity to upgrade their skills within a reasonable time frame. Upskilling priority will also consider behaviour and attendance in the selection process.
[44] According to Mr Bessell, cl. 3.2.2 had resulted in numerous employees being remunerated by reference to a higher classification than what otherwise would have been paid for the job and tasks that the employee was undertaking. 65 Mr Bessell stated that Wammco had consistently applied cl. 3.2.2 with this ‘understanding’ and therefore there were 49 employees that were classified at a higher level than the job that they were employed to do, and the job that they were in fact doing.66 To illustrate this point, Mr Bessell gave the following example:
…if the Plant only requires 3 sawyers to be employed and another employee is hired for another position, for example the position of meat packer but holds the requisite skills of a sawyer, Wammco will pay the employee as if the employee had been employed as a sawyer even though the employee was employed to perform a different role. In other words, Wammco will pay the employee as a level 5 under the Agreement. 67
[45] Under the terms of the Award, an employee is entitled to be paid by reference to the job that they were employed to perform, said Mr Bessell. 68 However, if consideration was given to the way that Wammco classified its employees, it would mean that the employee with the skills of a sawyer (in the above example) would be paid as a level 3 under the Award instead of as a level 5 under the Agreement.
[46] Mr Bessell’s view was that a level 1 classification under the Agreement was advantageous to employees (when compared to the Award) as the Agreement did not detail the minimum period as compared to the Award which required the employee to work a minimum of three months at level 1. 69 Mr Bessell stated that Wammco used the level 1 classification for new employees that had no experience in the meat industry. If it were the case that those employees acquired the requisite skill in three weeks, then the progression to the next classification level would occur at that time, rather than having to serve a mandatory period of three months at level 1, as prescribed by the Award.70
[47] The Agreement did prescribe mandatory progression from a level 2 to a level 3 classification after a period of two years in the meat industry, a provision, said Mr Bessell, not provided in the Award. 71 Mr Bessell stated to the effect that the mandatory progression from a level 2 to a level 3 under the Agreement was important when considering the rate of pay modelling undertaken by the Union.72 Mr Bessell observed that the Union had modelled several positions as a level 2 classification under the Agreement, but a majority of Wammco’s employees who were employed in those roles were actually a level 3 under the Agreement – a point not considered by the Union.73
[48] Mr Bessell gave evidence concerning the operation of clauses under the Agreement such as those covering meal breaks, stand down, allowances, payment of wages and Islamic Holidays. Further, Mr Bessell identified further issues concerning the Union’s rates of pay modelling:
a) no employees performed the role of whizzard knife operators;
b) slaughtering had been classified under the Award as a level 6, however some of the activities of a slaughterer are described at the Award level 4, and should be considered in the comparison;
c) ‘Shackle and operate Restrainer and Stun’ have been classified by the Union as not applicable. This role has been classed by Wammco as a level 5 and should be included in the modelling;
d) processing of skins is completed by a labourer and is therefore classed as a level 3 under the Award albeit the Union have identified the classification under the Award as level 4;
e) no employees perform chine boning at the plant – if employees were required to perform chine boning they would be classified as a level 5 under the Agreement, not a level 3 under the Agreement, as modelled by the Union; and
f) the rate the Union have applied concerning the Award modelling for the ‘Registered Halal Sticker and AQIS officer’ positions is incorrect.
[49] Mr Bessell summarised that the Union’s application of incorrect classifications meant that comparison rates had inaccuracies and as a result the overall summary provided by the Union was not an accurate reflection of how employees would be impacted were the Agreement terminated.
Assessment of the Agreement as compared to the Award
[50] As traversed, there were obvious difficulties associated with comparing the terms of the Agreement with those of the Award, particularly when it came to rates of pay, overtime, penalties, bonus schemes and allowances. It is not suggested that the Applicants, Union or Wammco had to that end pursued the production of material that was other than veridical. Yet it was hardly a case of comparing apples with apples given the malalignment of the Agreement classifications with those provided in the Award.
[51] In light of this the Commission performed its own modelling to determine, in part, what the likely effect the termination would have on the employees in respect of rates of pay. It is not the case that the Part 2-4, Division 7 of the Act, requires the Commission to conduct a BOOT, clearly the application has not been made under s.185 of the Act. However, it is important to ascertain the likely effect the termination of the Agreement would have on rates of pay and other entitlements – a fundamental consideration. The most efficient way to do this was to direct Wammco provide additional information on classification matching between the Agreement and Award, for the Commission to undertake modelling, and to then provide both the Union and Wammco an opportunity to file further submissions in response to the Commission’s modelling for consideration.
[52] With regard to the Commission modelling, the Union continued to express consternation that the classifications in the Agreement had not been compared to what it considered to be the equivalent classification under the Award. By way of example, the Union submitted that of the six indicative tasks for classification MI 6 that appeared in the Award, only one of those tasks was a level MI 6 under the Agreement. Therefore, the remainder of the tasks all fell under MI 5 under the Agreement. The more appropriate comparator for MI 5 under the Agreement was MI 6 under the Award.
[53] In arriving at the decision to dismiss the application, all materials filed at first instances have been considered, in addition to those tendered into evidence and filed in accordance with the subsequent directions issued.
Legislative scheme
[54] The various obligations and mechanisms to enable bargaining for the making of, approving, varying, and terminating an enterprise agreement are set out in Part 2-4 of the Act.
[55] Those obligations and mechanisms include an obligation to bargain in good faith, 74 and an ability to obtain, by order of the Commission, bargaining orders,75 serious breach declarations,76 majority support determinations,77 and scope orders.78 Additionally, Part 2-4 of the Act gives the Commission the ability to deal with a bargaining dispute.79
[56] Division 7 of Part 2-4 of the Act sets out the legislative mechanisms for the termination or variation of an enterprise agreement. Subdivision C of that Division prescribes the manner in which an enterprise agreement may be terminated. Whether the enterprise agreement is in term, or has passed its nominal expiry date, termination is a separate and distinct process contemplated under the Act. The termination process can proceed at any time when steps are under way to arrive at a replacement enterprise agreement.
[57] The provisions for terminating an enterprise agreement past its nominal expiry date are set out in the following sections of the Act:
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;
(c) an employee organisation 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.
[58] When construing these sections, the Full Bench in Re Aurizon Operations Limited, stated that they must:
be construed in a manner that is consistent with the language and purpose of the provisions by reference to the language of the Act as a whole, and so the context, general purpose and policy of the provision are an important means by which the meaning and effect of a provision is to be ascertained. 80
[59] The objects of Part 2-4 provide that context, in addition to the objects of the Act, respectively below:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.
[60] The means by which the Objects of the Act are to be achieved is set out in the various paragraphs enumerated in s.3 as follows:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
[61] There remain other sections of the Act that provide context when construing s.226. In Re Aurizon Operations Limited, the Full Bench summarised those sections. For the sake of brevity they are mirrored here: 81
• Provisions that enable employees to organise and engage in protected industrial action described as employee claim action and employee response action, 82 and those enabling an employer to respond to employee action through employer response action.83 Subject to compliance with the various statutory preconditions, such action when organised or taken will attract a limited immunity from suit.84 Unlike the corresponding provisions in the Workplace Relations Act 1996,85 an employer is not permitted to engage in protected industrial action for the purpose of supporting or advancing its claims in bargaining except in response to employee claim action.
• Under the statutory scheme, whilst an employer and a valid majority of employees may make an enterprise agreement which has statutory effect if subsequently approved by the Commission, there is nothing in the scheme which compels bargaining parties to reach or make an enterprise agreement. This is made clear in the provisions dealing with the good faith bargaining requirements. 86
• Division 4 of Part 2–4 contains the pre-approval steps, the approval steps and the content requirements for an enterprise agreement. Relevantly one of the content requirements is that an enterprise agreement must specify a date as its nominal expiry date and that date may not be more than 4 years after the day on which the Commission approves the enterprise agreement. 87
• The operation of an enterprise agreement is dealt with in s.54 of the Act. An enterprise agreement commences to operate from either seven days after it is approved by the Commission or from any later date that is specified in the agreement. 88 An enterprise agreement will cease to operate either on the day on which a termination of the agreement comes into operation pursuant to ss.224 – 227,89 or another enterprise agreement that covers the employees comes into operation and there are no employees to whom the first agreement applies,90 whichever occurs earlier.
[62] The Act provides a marked distinction between rights and obligations of those covered by an enterprise agreement during the nominal term, and after the expiry of the nominal date. For example, during the nominal term, no industrial action may be organised or engaged in, 91 and industrial action may be prevented by order of the Commission.92
[63] The legislative scheme facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made, and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. 93 Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act, or both may occur.
Consideration
Not contrary to the public interest
[64] The Commission must be satisfied that it is not contrary to the public interest to terminate the Agreement. Without detracting from the authorities that have considered the notion of public interest, and having considered those cited, the relevant principles can be summarised as follows:
• the evaluative process required by ss.226(a) and (b) is a ‘narrow’ discretion, 94 but allows a degree of latitude on the part of the decision-maker as to the conclusions to be reached;95
• the public interest involves considerations distinct from, and broader than, the interests of the parties, 96 and the Commission should be guided by the likely foreseeable consequences of termination on the public interest rather than speculation about possible consequences;97
• the public interest includes consideration of matters such as the achievement of the objects of the Act (including by assisting the parties by termination to reach a new agreement, and agreements that deliver productivity improvements), employment levels, inflation, and maintaining proper industrial standards; 98
• the likelihood of termination enhancing or reducing the prospects of a new agreement through bargaining is a consideration; 99
• there is no presumption that termination is contrary to the public interest because it occurs at a time when collective bargaining is occurring; 100
• there is also no inherent inconsistency between terminating an enterprise agreement and bargaining subsequently in good faith; 101
• there is no presumption that productivity benefits (one of the means of achieving the objects of the Act) are only fulfilled by entering a new enterprise agreement and such benefits may in fact be achieved by terminating an enterprise agreement; 102 and
• there is no presumption that the termination is contrary to the public interest because it alters the bargaining positions of the parties, especially given that termination is part of the scheme of the Act. 103
[65] The impetus for the application appears to have derived from both the Applicants’ and Union’s preference to premise bargaining on the platform of the Award rather than the Agreement. According to Ms Kennedy, the bargaining for a new enterprise agreement had in effect been hampered because the proposed agreement previously voted upon had been identified by the Commission as having BOOT issues, and that was why the prior application had been discontinued. Subsequent bargaining, said Ms Kennedy, had been based upon the Agreement, and there were outstanding issues between Wammco and the Union concerning the new agreement terms, which were unable to be resolved because of this. The Union’s view was that the termination of the Agreement would lay the compliance issues to rest – the inference being that a BOOT compliant agreement could then be reached.
[66] It was my view that the position of the parties had not become intractable, although agreement could not be reached on some key issues. It was evident that there was a seemingly cooperative relationship between the parties with a commitment to return to the bargaining table, irrespective of the outcome of the application. Further, there was no indication that bargaining for a replacement agreement had not occurred in good faith. In light of the aforementioned commitment of the parties, and the impetus for the application, the termination of the Agreement may have enhanced the prospects of a new agreement being reached, and as such a termination would not be contrary to the public interest, in this respect.
[67] The bargaining positions of the parties may be altered by the termination of the Agreement, but I note that this must be viewed within the context of the scheme of the Act, which clearly contemplates termination, subject to the satisfaction of prescribed conditions. Bargaining will remain available subject to the good faith bargaining requirements of the Act and the Commission’s capacity to make bargaining orders.
[68] There has been somewhat protracted bargaining over some 17 months since the discontinuance of the application to approve the proposed agreement, in March 2018. There appears to have been nine bargaining meetings over that period. Notwithstanding, I do not consider the bargaining conduct of the Applicants or Union arouses public interest considerations.
[69] Clearly the termination of the Agreement will not prevent employees from being covered by proper industrial standards. As the Union has correctly outlined that the Award will cover and apply, and while there has been no indication from Wammco that an undertaking will be proffered to maintain ‘actual’ terms and conditions, I do not accept that there will a loss of various industrial standards.
[70] I have considered the circumstances of this matter and I am satisfied it is not contrary to the public interest to terminate the Agreement. However, I am unconvinced nevertheless that it is appropriate to terminate the Agreement because of the reasons that follow.
Appropriateness
[71] The approach to assessing appropriateness under ss.226(b)(i) and (ii) has been set out in the Full Bench decision of Aurizon, and I repeat what was written there:
All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s.226(b) to take into account all of the circumstances including those set out in s.226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s.226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s.226(b)(i) and (ii). 104
[72] When assessing appropriateness in this context, several principles are evident from the existing case law, which I have adopted in my consideration of whether in all the circumstances it is appropriate to terminate the Agreement. They include:
• the question of appropriateness requires an overall judgment based on all the relevant circumstances of the application; 105
• there is no right or expectation that an enterprise agreement continues in perpetuity after its nominal expiry date; 106
• there is no presumption or predisposition against terminating an enterprise agreement after the passing of its nominal expiry date; 107
• there is no inherent inconsistency between terminating an enterprise agreement, and bargaining subsequently in good faith; 108
• the question of appropriateness involves not only a consideration of the views of the parties but also the reason for those views; 109
• the fact that remuneration will be reduced if termination occurs does not mean that it is not appropriate to terminate an agreement; 110
[73] I have outlined in no uncertain terms the difficulty faced by both Commission and parties regarding an evaluation of the likely effect the termination would have on the employees with respect to their rates of pay. I am entirely appreciative that there are other terms and conditions that will likely be affected should the termination be approved but consider the rates of pay a fundamental consideration. While my consideration now focuses on the views of the employees, this issue has bearing on that very subject matter.
[74] Prior to distributing a petition for signing, the Union took steps to explain to the employee cohort the likely effect of terminating the Agreement. Over the course of 27 and 28 August 2018, the Union distributed flyers and Ms Kennedy stated to the effect that explanations had been provided to the employees regarding the likely effect of the termination of the Agreement. The purported number of the workforce was 290 employees, and Ms Kennedy gave evidence that having secured the signatures of 140 employees she asked a Union delegate to obtain a few more signatures in her absence. 111 Ten signatures were obtained, hence securing a majority of the workforce.112
[75] Although a majority of the workforce has expressed approval for the termination of the Agreement, I harbour significant concerns that these views are premised upon information that may have lacked clarity, or may not have elucidated the extent of the likely effect the termination would have on pay rates.
[76] Undoubtedly, the Act does not require that I am to be satisfied that the termination of the Agreement has been ‘genuinely agreed’ to, as that term is understood in the context of Part 2-4, Division 4 of the Act. However, it is not unreasonable to surmise that a view, opinion, idea or notion about a certain subject, will often be arrived at after having considered the information provided about that very subject. Reliance on the information provided is likely heightened in circumstances where the subject matter one is to form a view upon is, by way of example, technical in nature, unfamiliar, conceptual such that it requires a measure of interpretation, expansive – covering much detail, or in the circumstances is available from (or has been provided by) only the one source. By way of example, albeit simplistic, if an employee cohort had been informed that the termination of the Agreement would result in a pay increase notwithstanding that other benefits would be compromised and, having received that information, they signed a petition in support of terminating an Agreement, but it was later shown in proceedings such as these that the termination would effect a pay decrease – what then is to be made of the views expressed by the signing of the petition? Clearly there is latitude to take into consideration this point when considering all of the circumstances under s.226(b).
[77] My concern should not be interpreted as levelling criticism toward the Union. The Union distributed information that was available to it at the relevant time and drew upon key Award conditions to demonstrate the purported shortcomings of the Agreement. In this respect, I refer to the numerous flyers that were distributed – the content of which was uncontroversial, inerrant and simply pointed to matters such as ‘[T]he Federal Meat Industry Award does not authorise the transfer of full-time workers to casual status’, and ‘[T]he Federal Meat Industry Award pays overtime rates to workers who start before 6:00AM.’
[78] However, it was not until the Agreement was submitted to the Commission for the purpose of evaluating the delta between the Agreement and the Award regarding rates of pay, and Wammco were directed to assist the Commission by providing further submissions regarding classification matching, that the likely effect of the termination of the Agreement on the rates of pay could be ascertained. I note in this respect, again, that the Union still takes issue regarding some of the classification matching. The evidence of Ms Kennedy, with due respect regarding all the work she has done, does not illustrate that the signatories to the petition were cognisant of the likely effect the termination of the Agreement would have on their rates of pay.
[79] Compounding the issue further is the evidence that the workforce is inclusive of employees who speak English as a second language. Ms Kennedy gave evidence that the Union utilised employees versed in both the primary language of those same employees and English to communicate explanations regarding the termination. Where an employee was unavailable to interpret, such as in the skin sheds, Ms Kennedy did not ask the non-English speaking employees to sign the petition. 113 While the pragmatism of the approach is appreciated, and the commercial reality faced by both Union and employees regarding the cost of engaging an accredited translator is acknowledged, it remains the case that the use of unaccredited translators is far from a satisfactory approach. There was no means by which the Applicants or the Union could vouch for the veracity of the translated explanations provided.
[80] The Applicants have submitted that the petition evinces support for the termination of the Agreement despite Wammco claiming that the employees will suffer a detriment if the Agreement is cancelled. However, while there was evidence before me that the employees were provided with information regarding the content on flyers, and Ms Kennedy did a ‘top and tail’ of the Act, there is no evidence which has been drawn to my attention, to show that the relevant employees were apprised of the likely effect the termination of the Agreement would have on their rates of pay, prior to them signing the petition. Further, if this information was provided by the Union, the problem that persists is that the modelling undertaken by the Union was premised on some misassumptions and therefore may not have provided an accurate representation of the likely consequence of the termination on pay rates.
[81] While not relied upon as a reason for the decision reached, I also observe that the petition was circulated back in August 2018 and therefore may not evince the contemporaneous views of the employees. Nevertheless, no party objected to reliance being placed upon it as evidence of the employees’ views,
[82] According to Mr Rogowsky, he would be better off if the Award set his terms and conditions of employment, than he would be if the Agreement continued to operate. 114 However, again, while Mr Rogowsky pointed to terms and conditions that appear advantageous under the Award when compared to the Agreement (akin to those set out in the flyers of the Union), he made no reference in his statutory declaration as to his view regarding the likely effect of the termination on his rates of pay. I have taken these factors into consideration.
[83] I have in addition had regard to the views of those employees who submitted statutory declarations setting out the deleterious effects the termination would have on their take home pay and concerns about the petition process. Regarding the weight to be attributed to their evidence, I have been mindful of their non-attendance at hearing but nevertheless am content that their statutory declarations express their views, but again note my consternation about the information conveyed to them in this respect.
[84] The Applicants and the Union clearly support the termination of the Agreement for the reasons outlined in the evidence of Ms Kennedy, Mr Smith and Mr Rogowsky. They considered that the terms and conditions under the Award would render the employees in a preferable position than if the Agreement continued to apply.
[85] Further, it was Ms Kennedy’s evidence that terminating the Agreement would in effect, establish a new base on which to re-commence negotiations going forward. That is, the starting point for a new agreement would be the Award rather that the Agreement. The Union considered this preferable given that the last proposed agreement put to the vote was based upon the Agreement, and the Union purported that the Commission identified that the proposed agreement had multiple BOOT issues. It was the Union’s view that the termination of the Agreement would resolve issues in dispute between Wammco and it.
[86] Yet, I am unpersuaded that the likely effect of the Agreement termination will be the elucidation of the matters in dispute such that a proposed agreement can be finalised. 115 Ms Kennedy has given evidence of the major areas of difference as of the last bargaining meeting on 24 September 2019.116 I therefore do not consider that the termination of the Agreement will further illuminate the contentious claims between the parties – with due respect to both, they know what they are.
[87] I observe that while the last proposed agreement submitted for approval was said to have BOOT issues, it was, notwithstanding, voted up by the relevant employee cohort. While there may be some outstanding issues between the parties, it does not strike me that there is a bargaining dispute between the parties that is intractable, such that a termination of the Agreement would be necessary to ensure the facilitation of further bargaining. The Union has readily submitted that it is ‘happy to negotiate a new agreement with WAMMCO and the termination of the subject of these proceedings does not affect that view’. 117
[88] There is no contention advanced by the Union or Wammco that the termination of the Agreement will in anyway impact upon the loss of clauses relating to consultation and dispute resolution, or representation by employee/union representatives. For the most part, it is apparent that the Union would not be materially impacted upon should the termination of the Agreement be approved.
[89] However, the circumstances of the relevant employees are such, that the termination of the Agreement, will likely have the effect of placing the employees under the Award coverage. As noted, no undertaking has been proffered by Wammco that current rates of pay will be maintained should the Agreement terminate. Modelling indicates that were Award rates applicable there would be two classifications that would end up attracting a higher rate of pay (minimally) than currently provided for by the Agreement. However, for the most part the Agreement offers permanent adult rates of pay between 0.38% - 5.84% above the Award. When the allowance at cl 3.1.2 of the Agreement is included in the modelling (an allowance that is not discretionary) the Agreement rates of pay are 2.33% - 14.30% above the Award. Therefore, were the Agreement terminated, the likely effect of that termination would be a reduction in the rate of pay for most of the employees, if Wammco were to revert to the rates of pay under the Award.
[90] However, the rate of pay is not the only consideration when it comes to evaluating the likely effect the termination will have on the employees. The Union has provided a detailed analysis of further shortcomings or disadvantageous clauses in the Agreement (when compared to the equivalent Award provision), and in that respect, I agree with the Union that some of the clauses are far from satisfactory and there is a rational basis for the contentions raised.
[91] However, after having taken account of all of the circumstances, including the views of the employees, the Union and the neutral position of Wammco, in addition to the likely effect that the termination will have on each of them, I do not consider that the evidence supports a conclusion that it is appropriate to terminate the Agreement.
Conclusion
[92] I have concluded that termination of the Agreement is not contrary to the public interest but that it is not appropriate, at this juncture, to terminate the Agreement taking into account the circumstances discussed in this decision. The application to terminate the Agreement is therefore refused and is dismissed.
DEPUTY PRESIDENT
Appearances:
T Kucera of Turner Freeman for the applicants
R Harding of Jackson MacDonald for the Western Australian Meat Marketing Co-operative Limited
Hearing details:
2019.
Perth:
29 November.
Final written submissions:
20 January 2020.
Printed by authority of the Commonwealth Government Printer
<AE402868 PR717145 >
1 Transcript PN58.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 Supplementary Statement of Graham Smith (Supplementary Smith Statement) [8].
10 Ibid [8].
11 Witness Statement of Anthony John Bessell (Bessell Statement) [11].
12 Ibid [12].
13 Ibid [13].
14 Transcript PN487.
15 Witness Statement of Debra Kennedy (Kennedy Statement) [1].
16 Ibid [2].
17 Ibid [2].
18 Ibid [2].
19 Ibid [4].
20 Ibid [5].
21 Ibid [5].
22 Ibid [6].
23 Form F24C Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date of Ms Debra Kennedy 5 October 2018 (Kennedy Declaration).
24 Ibid [4].
25 Kennedy Statement [7].
26 Kennedy Statement para [2.3].
27 Witness Statement of Graham Smith (Smith Statement) [1].
28 Ibid [2].
29 Ibid [14].
30 Ibid [15].
31 Ibid [15].
32 Ibid [17].
33 Ibid [18].
34 Ibid [19].
35 Ibid [19]-[35].
36 Ibid [19(a)].
37 Ibid [19(a)].
38 Ibid [19(a)].
39 Ibid [19(a)].
40 Transcript PN225.
41 Ibid PN125.
42 Ibid PN125.
43 Ibid PN168.
44 Smith Statement [38].
45 Ibid [39].
46 Ibid [39].
47 Ibid [48].
48 Ibid [48].
49 Ibid [56].
50 Ibid [59] – [68].
51 Ibid [59].
52 Form F24C Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date Mr Gregory Rogowsky 28 September 2018 (Rogowsky Declaration).
53 Ibid [2].
54 Statutory Declaration of Christine Ivy Crockford dated 20 November 2018.
55 Statutory Declaration of Leon Ross Antonio unable to ascertain date.
56 Statutory Declaration of Eileen June Hamlin dated 26 November 2018.
57 Bessell Statement [16]; Respondent’s Outline of Submissions [16].
58 Bessell Statement [17].
59 Ibid [18].
60 Ibid [21].
61 Ibid [39].
62 Ibid [39].
63 Ibid [41].
64 Ibid [42].
65 Ibid [46].
66 Ibid [47].
67 Ibid [48].
68 Ibid [49].
69 Ibid [52].
70 Ibid [53].
71 Ibid [54].
72 Ibid [55].
73 Ibid [55].
74 Fair Work Act 2009 (Cth) s.228.
75 Ibid ss.229 – 230.
76 Ibid ss.234 – 235
77 Ibid ss.236 – 237.
78 Ibid ss.238 – 239.
79 Ibid s.240.
80 Re Aurizon Operations Limited (2015) 249 IR 55, [120] (‘Aurizon’).
81 (2015) 249 IR 55, [125].
82 Fair Work Act 2009 (Cth) ss.408 – 410.
83 Ibidss.408, 411.
84 Ibids.415.
85 Workplace Relations Act 1996 (Cth)ss.435 – 448.
86 Fair Work Act 2009 (Cth) s.228(2).
87 Ibids.186(5).
88 Ibids.54(1).
89 Ibid s.54(2)(a).
90 Ibidss.54(2)(c), 58.
91 Ibids.417.
92 Ibidss.418 – 420.
93 Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].
94 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19].
95 CFMEU v Peabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, 261 [17] – [18].
96 Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re Boom Logistics Ltd [2016] FWCA 82, [64]; Re Allen & O’Brien Pty Ltd [2016] FWCA 1906, [11]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 [18], [30]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [67]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [308], [379]; Re SDA[2014] FWCA 4058, [10].
97 Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].
98 Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re The Griffin Coal Mining Company Pty Ltd[2016] FWCA 2312 [116], [117], [130], [132]; Re Boom Logistics Ltd[2016] FWCA 82, [64]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [18]; Re Tricare Residential Aged Care Facilities [2017] FWCA 162, [67], [76]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [309]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [62]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon OperationsLtd (2015) 233 FCR 301, [11]; Re SDA [2014] FWCA 4058, [9].
99 Re Tahmoor Coal Pty Ltd (2010) 204 IR 243, [66]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [13]; CFMEU vPeabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, [25]; Re Murdoch University [2017] FWCA 4472, [182].
100 CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re Aurizon Operations Limited (2015) 249 IR 55,[149]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [123]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [26]; Re Murdoch University [2017] FWCA 4472, [305], [311].
101 Re Aurizon Operations Limited (2015) 249 IR 55,[158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].
102 ReAurizon Operations Limited (2015) 249 IR 55, [140] – [141], [143], [149]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [305].
103 CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [105].
104 ReAurizon Operations Limited (2015) 249 IR 55, [167].
105 ERA v LHMU[2010] FWA 2434, [15]; Re Allen & O’Brien Pty Ltd[2016] FWCA 1906, [22]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [78], [115]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [4], [35]; Re Murdoch University [2017] FWCA 4472, [396]; Re Pinarello Blues Pty Ltd as trustee for Judds Discretionary Trust t/as Yankalilla Hotel[2015] FWCA 7698, [98].
106 Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [74], [104]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13], [14]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].
107 Re Aurizon Operations Limited (2015) 249 IR 55, [142]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13].
108 Re Aurizon Operations Limited (2015) 249 IR 55, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [103]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13]; Re Murdoch University [2017] FWCA 4472, [455]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].
109 ERA v LHMU[2010] FWA 2434, [15]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19].
110 Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312, [173]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [142], [154], [161]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [63]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [29], [55]; CFMEU v Peabody Energy Australia PCI Mine Management Pty Limited (2016) 260 IR 255, [2].
111 Kennedy Declaration [2.1].
112 Ibid [2.1].
113 Ibid [2.1].
114 Rogowsky Declaration [2.3].
115 Kennedy Statement [6].
116 Ibid [4].
117 Ibid [7].
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