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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1116
Decision Date: 28 FEBRUARY 2020

CaseChat Overview and Summary

The case before the court involved an application to terminate the WAMMCO International (Katanning) AMIEU Processing Agreement (2013). The parties included Greg Rogowsky, Nigel Willis, Donald Hill, and Bradley Quick, who were the representatives seeking termination of the agreement. The dispute centred around the views of employees regarding the petition's veracity and the impact of language barriers on their ability to form informed opinions. Specifically, the case examined whether non-English speaking employees had relied on potentially misleading information when expressing their views on the petition to terminate the agreement.

The court was required to determine whether the petition accurately reflected the views of the employees, particularly those who were non-English speakers. The legal issues included assessing the veracity of the petition and whether there was any reliance on misleading information by the employees when forming their views. The court also needed to consider the implications of language barriers on the employees' ability to comprehend the petition and make informed decisions.

The court found that the petition did not accurately reflect the views of all employees, particularly those who were non-English speaking. It was determined that some employees had relied on potentially misleading information when expressing their views. The court emphasised the importance of ensuring that all employees, regardless of language proficiency, have access to accurate and understandable information when making decisions about union agreements. Consequently, the court decided that the petition did not adequately represent the views of the employees, and therefore the application to terminate the agreement would not proceed.

Orders