Harding-Colliss v Programmed Skilled Workforce Ltd
[2020] FCCA 1712
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARDING-COLLISS v PROGRAMMED SKILLED WORKFORCE LTD | [2020] FCCA 1712 |
| Catchwords: INDUSTRIAL LAW – SMALL CLAIMS – Applicant working in pet food manufacturing – consideration of Food, Beverage and Tobacco Manufacturing Award 2010 – consideration of the allowance for work of an unusually dirty, dusty or offensive nature – construction of award term. |
| Legislation: Fair Work Act 2009, Division 3 of Part 4-1 Food, Beverage and Tobacco Manufacturing Award 2010, cl.3.1, 26, 26.3 |
| Cases cited: 1983 National Wage Case Decision (1983) 4 IR 429 |
| Applicant: | LEANNE HARDING-COLLISS |
| Respondent: | PROGRAMMED SKILLED WORKFORCE LTD |
| File Number: | MLG 2909 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 1 June 2020 |
| Date of Last Submission: | 1 June 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Advocate for the Applicant: | Mr De Rooy |
| Solicitors for the Applicant: | United Workers Union |
| Counsel for the Respondent: | Mr Forbes |
| Solicitors for the Respondent: | Herbert Smith Freehills |
ORDERS
The Application and Claim filed 4 September 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2909 of 2019
| LEANNE HARDING-COLLISS |
Applicant
And
| PROGRAMMED SKILLED WORKFORCE LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Harding-Collis (‘Applicant’). It is made as a small claim under Division 3 of Part 4-1 of the Fair Work Act 2009 (‘Act’).
The Applicant was employed by Programmed Skilled Workforce Ltd (‘Respondent’) from 7 November 2016 until 15 February 2019. She was supplied to and worked as a casual production worker for Dried & True Pty Ltd (‘Company’). The Company is a manufacturer of dried pet food treats.
The Applicant claims that while employed by the Respondent, she was entitled to be paid an allowance for dirty work under the provisions of the Food, Beverage and Tobacco Manufacturing Award 2010 (‘Modern Award’).
For the reasons that follow, I have determined that the Applicant was not entitled to be paid the allowance for dirty work, as claimed.
The nature of the Applicant’s work
The parties prepared and filed an agreed statement of facts in order to assist with the running of this matter via the Microsoft Teams platform. The agreed statement of facts filed on 6 April 2020 is set out in its entirety as an annexure accompanying these written reasons.
In addition to the agreed statement of facts, both parties led evidence in relation to aspects of the work performed by the Applicant.
There is not any significant dispute between the parties that the Applicant was required, in her role, to handle raw animal product such as pig’s ears, goat horns, beef ears, shark cartilage, kangaroo tail and bone, beef bone and liver, lamb lungs and pork bone and liver. It was also broadly accepted that such products could arrive frozen or non-frozen into the production facility whereupon it would undergo a process of washing and sorting.
The Applicant’s evidence was that the raw animal product was often smelly. There was some dispute as to the degree of the smell caused by the animal product. Mr Addison, the Safety, Environment and Quality Manager for the Respondent, gave evidence to the effect that the smell was equivalent to the smell one might ordinarily encounter in a retail butcher shop. The Applicant’s evidence was that the smell was far worse. On this point, I prefer and accept the evidence of the Applicant. She was working in the environment continuously, in all temperatures, with all manner of product. Mr Addison, while visiting the site regularly, was not present to anywhere near the extent that the Applicant was.
The Applicant also gave evidence that her protective gear did not always prevent her from coming into direct contact with the animal product. This was a point that Mr Addison also disputed to some extent, although with some qualifications. For example, Mr Addison accepted product could come into contact with workers if the protective gear was not worn properly. Again, I prefer the evidence of the Applicant on this point. She was the one required to wear the equipment throughout each shift and was best placed in that context to assess how it performed in keeping the product off her skin. I am satisfied the product did come into contact with the Applicant’s skin, despite her wearing protective gear, from time to time.
There was also some dispute as to the quality of the raw animal product received by the Company. The Applicant’s evidence was that the raw animal product was regularly accompanied by animal fluids, maggots and faecal matter. Her evidence was that she was required to clean the product where it was possible so that it could then be manufactured. Mr Addison acknowledged that faecal matter and maggots could accompany some of the product on some occasions, but it was rare. I accept the Applicant was required in her role to handle product that contained maggots or faecal matter from time to time. The evidence before me does not, however, enable me to make specific findings as to how often, or frequently, such events occurred.
When the above matters are considered, there is little doubt that the nature of the work performed by the Applicant is unique to say the least, and very different to that performed by many other employees. It is undoubtedly work that is messy, smelly and occurs in a setting where animal product (or animal parts) are being processed for production into pet food.
The parties agreed that there were three questions before the Court. Those questions were:
a)Is the whole of the work performed by the Applicant, for the Respondent, work that is ‘of an unusually dirty, dusty or offensive nature’ within the meaning of clause 26.3(f) of the Modern Award?
b)If the answer to the question above is ‘no’, is any part of the work performed by the Applicant, for the Respondent, work that is ‘of an unusually dirty, dusty or offensive nature’ within the meaning of clause 26.3(f) of the Modern Award?
c)If the answer to the question above is ‘yes’, during which hours did the Applicant perform work for the Respondent that is ‘of an usually dirty, dusty or offensive nature’ within the meaning of clause 26.3(f) of the Modern Award?
To answer those questions, it is necessary to consider, and where necessary, interpret the terms of the relevant Modern Award clause, before applying it to the facts of this case.
The Award clause
Clause 26 of the Modern Award contains provisions dealing with ‘Allowances and special rates’. Clause 26.3 of the Modern Award deals with ‘Special rates’. Clause 26.3(f) makes specific provision for dirty or dusty work and provides as follows:
‘An employee who performs work of an unusually dirty, dusty or offensive nature must be paid 2.9% of the standard rate per hour extra.’
(the ‘dirty work allowance’)
The Modern Award is an award that covers employers throughout Australia in the food, beverage and tobacco manufacturing industries and their employees in the classifications contained within the Modern Award (clause 4.1 of the Modern Award). The ‘food, beverage and tobacco manufacturing’ industry is defined in clause 3.1 of the Modern Award to mean the following:
‘food, beverage and tobacco manufacturing means the
preparing, cooking, baking, blending, brewing, fermenting, preserving, filleting, gutting, freezing, refrigerating, decorating, washing, grading, processing, distilling, manufacturing and milling of food, beverage and tobacco products, including stock feed and pet food, and ancillary activities such as:
(a) the receipt, storing and handling of ingredients and raw materials to make food, beverage and tobacco products, including stock feed and pet food;
(b) the bottling, canning, packaging, labelling, palletising, storing, preparing for sale, packing and despatching of food, beverage and tobacco products, including stock feed and pet food; and
(c) the cleaning and sanitising of tools, equipment and machinery used to produce food, beverage and tobacco products, including stock feed and pet food.’
The Applicant contends that she is entitled to the dirty work allowance. The central contention advanced on her behalf is that her work in handling raw animal product is unusually dirty or offensive when compared to what other employees in the food, beverage and tobacco industry ordinarily undertake.
The Respondent contends that a person in the position of the Applicant is only entitled to the dirty work allowance where the work she performs is unusually dirty, relative to the normal or usual work she performed for the Respondent. The Respondent contends that the dirty work allowance is not engaged where an employee in the position of the Applicant is simply doing her ordinary work and encounters the normal incidents of pet food manufacture.
It can immediately be seen that the issue raised by the parties goes to the proper construction of the dirty work allowance in the Modern Award. It can also be immediately seen from the text of the dirty work allowance that it calls for a comparison between work on the one hand, and work that is ‘unusually’ dirty. The Applicant’s contention is that the relevant comparison point is the Applicant’s work compared to other employees whose employment is covered by the Modern Award. The Respondent’s contention is that the relevant comparison point is the work usually undertaken by the particular employee.
Principles of Award construction
The principles relating to the construction and interpretation of awards are well-settled. They were recently summarised by Raniagh J in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union(No.3) (2019) 284 IR 97 at [52] as follows:
‘The principles of construction of awards are well-settled and include the following:
(1) The canons of construction found in the Acts Interpretation Act 1901 (Cth) apply to awards of the Commission: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [52]; Construction Forestry Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc (2007) 161 IR 86 at [33]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [29]; Sydney Night Patrol & Inquiry Co Pty Ltd v Pulleine [2014] FCA 385 at [26].
(2) The task of construction begins with the natural and ordinary meaning of the words used: City of Wanneroo at [53]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13].
(3) An award is to be interpreted in light of its industrial context and purpose: City of Wanneroo at [53]; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [27]; Prestige Property Services Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2007) 161 FCR 95; 166 IR 165 at [56] and [109]; Soliman v University of Technology, Sydney (2008) 176 IR 183 at [82]
(4) An award is also to be interpreted in light of the commercial and legislative context in which it applies: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; 138 IR 286 at [2] and [13]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88; 204 IR 309 at [90]; Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]-[18]; Zader at [27].
(5) An award “must not be interpreted in a vacuum divorced from industrial realities”: City of Wanneroo at [57]; Australian Workers’ Union v Cleanevent Australia Pty Ltd at [14].
(6) The relevant “context” to be considered in interpreting an award extends to the origins of a particular clause. However, most often the immediate context, being the clause, section or part of the award in which the words to be interpreted appear, will be the clearest guide: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517-519; 46 IR 128 at 133-136.
(7) The Court should not make too much of infelicitous expression in the drafting of an award. Ultimately, as awards bind the parties on pain of pecuniary penalties, they should make sense according to the basic conventions of the English language: City of Wanneroo at [57]. Narrow or pedantic approaches to the construction task are misplaced, but a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award: Kucks at 184; Excelior Pty Ltd at [30].
(8) While context and purpose of an award will be relevant, ultimately the Court’s task is to give effect to the meaning of the award as expressed in its words, objectively construed: Amcor Ltd at [70], [77]-[114].’
With those matters in mind, I now turn to deal with the present controversy before the Court.
Consideration
The first matter to consider is the ordinary meaning of the language used in the dirty work allowance. The words ‘dirty’, ‘dusty’ and ‘offensive’ are not defined in the Modern Award, and accordingly bear their ordinary meaning. Both parties before me accepted that the word ‘work’ bears its ordinary meaning and is a reference to the totality of the duties that an employee may be asked to perform. The word ‘unusually’ is derived from the word ‘unusual’ and is defined in the Macquarie Dictionary to mean ‘not usual, common or ordinary; uncommon in amount or degree; of an exceptional kind’.
It is the use of the word ‘unusually’ in the phrase ‘work of an unusually dirty, dusty or offensive nature’ that introduces a reference point. In order to assess whether particular work is ‘unusually’ dirty, it is necessary to compare it to the particular reference point. As I have noted earlier, the parties disagree as to what that reference point ought to be in the case of the Applicant.
The word ‘unusually’ is a word that has been considered in an industrial law context. In the Steel Industry Awards Case [1959] AR 158, the Full Bench of the New South Wales Industrial Commission considered the operation of a dirty work allowance in circumstances where the relevant award, as is the case here, covered a range of different employers and physical conditions. At page 167, the Full Bench said:
‘Plainly, in the wide range of establishments bound by the award, there must be an equally wide range of physical conditions under which work is done, and the inspections which we made of outside shops, where we saw work which was hot or dirty or wet, or done in confined spaces or at heights, makes this quite clear. It must be assumed that the Metal Trades Award was made in contemplation of its being applicable to work performed in all the varied conditions mentioned. Indeed, many various physical conditions in which work may be performed are specifically referred to in a clause of the award which provides for the payment in certain specified circumstances of extra rates for work done in cold or hot places, for work of an unusually dirty or offensive nature, or done at heights, or in confined spaces such as – to quote a few of those mentioned in the award – in ships’ bilges or under the floors of ships’ engine rooms and stokeholds, or inside boilers, furnaces, flues, combustion chambers and the like. Having all this range of work in mind, what provision has the tribunal made for the minimum remuneration of those who do the work? In the first place, it has fixed a weekly wage made up of basic wage and margin. It has then provided that, in addition to the weekly wage, extra rates are to be paid on an hourly basis when the work is done under certain specified conditions; for example, work which a foreman and workmen agree is of an unusually dirty or offensive nature is to be paid for at the rate of 4d per hour extra, or, in the case of ship work, 6d per hour extra. If an employee does work which is dirty or offensive but not unusually so, that work is to be regarded as work remunerated by the ordinary weekly wage. O’Mara J once said of the wage fixed by the Metal Trades Award for a motor mechanic – and the same would have been true, we believe, of the wages fixed for other classifications – that the wage had been fixed having regard to the fact that the occupation is one in which dirty work is an incident of the employment and that the ordinary rate of wage had been assessed accordingly (49 CAR 550).’
Two propositions immediately fall from the quote above. First, where an award makes provision for rates of pay covering employees working in different working conditions, the wage has been fixed having regard to the nature of the work performed. Second, the paragraph above reveals, in the context of that case, that the reference point for determining whether the work is unusually dirty is the work ordinarily performed by the employee.
Sentiments similar to the propositions above (particularly the latter one) were also given voice by Sheehy J in Crown Employees (Skilled Tradesman) Award [1969] AR (NSW) 87.
The Applicant in arguing for the construction she prefers points to a recommendation made by the Fair Work Commission in 2018. The Applicant contends that the United Workers Union (‘UWU’) notified a dispute with the Commission under the dispute resolution clause of the Award. The UWU and the Respondent made submissions before the Commission. The Commission then conducted a work site visit. Following that worksite visit, the Commission issued a recommendation that, among other things, all employees of the Respondent assigned to perform work at the site where the Applicant works, were entitled to be paid the dirty work allowance.
While I understand the submission advanced by the Applicant, it does not assist her case. It is common for the Commission to issue recommendations. The circumstances in which recommendations of the Commission are made vary greatly. Often, recommendations are made in an attempt to solve an ongoing industrial dispute. While the circumstances concerning the making of this recommendation are not known to me, I do not place much weight on it for the reasons articulated above. I also place no weight on it given that the reasoning of the Commissioner is not explained, and it does not appear that the Commission has engaged with the construction issues that now confront me.
In addition to the propositions outlined above, the approach taken in the cases referred to above directs attention to the context in which the award was made.
In the present matter, the Award was the product of the award modernisation process contemplated by the Act. As can be seen, the Award as a whole, covers a diverse range of industries relating to the manufacture of food. Insofar as the production of pet food is concerned, prior to the Award dealing with pet food, there were three awards regulating pet food manufacture. Those were the Pet Food Manufacturers (State) Award in New South Wales, the Animal Food Makers & c (State) Award (‘NSW AFM Award’) in New South Wales, and the Pet Food Manufacturing Industry-Victoria and South Australia-Award, which covered manufacturing operations in Victoria and South Australia.
When the above awards are considered, two aspects emerge. First, each of the historical awards referred to set pay and conditions for work in the pet food manufacturing sector.
Second, the NSW AFM Award was the only award to contain an allowance that was similar to the present dirty work allowance contained in the Award – see clause 9(b) of the NSW AFM Award which was in the following terms:
‘Unusually and Excessively Dirty or Dusty Conditions - Where the manager and representative of the Association agree that the work being performed is unusually and excessively dirty or dusty, an allowance shall be paid of the amount specified in Item 2 of Table 4 - Other Rates and Allowances of Part B - Monetary Rates of this Award.’
The clause extracted above is significant. In an award dealing with animal food manufacture, the clause is clearly concerned with whether the work in animal food manufacture is ‘unusually or excessively dirty or dusty’ by reference to work ordinarily performed in animal food manufacture. Accordingly, the NSW AFM Award recognised that certain work involving pet food manufacture could be ‘unusually’ dirty when compared to the ordinary incidents that accompany pet food manufacture. I pause to observe that this provides an answer to the submission advanced by the Applicant (as I understood it) that it could be difficult to envisage a situation where decisions have to be made concerning whether handling particular animal product is more dirty or offensive than handling certain other types of raw animal product. Second, given the unique nature of the work which is inherently dirty, it contemplates that the allowance will only be payable where a manager and a representative of the relevant employee association agree that work is ‘unusually or excessively dirty or dusty’.
The award modernisation process ultimately led to the Modern Award covering pet food manufacture. The Modern Award, however, also covers a range of other industries, each of which, prior to the award modernisation process, would have been subject to their own award regime. It is not clear from the materials that I have seen, just how the present formulation contained within clause 26.3(f) was arrived at. What can, however, be safely said, is this. Clause 26.3(f), and no doubt many other clauses in the Modern Award, trace their roots back to the awards that existed before award modernisation. Further, insofar as pet food manufacturing and dirty work is concerned, the industrial history of the dirty work allowances in pet food manufacture supports the construction advanced by the Respondent i.e. that the work of an employee engaged in pet food manufacturing must be unusually dirty compared to the work ordinarily performed by the employee.
It is then necessary to consider the nature of the payment made under clause 26.3(f). As I have noted above, clause 26 of the Award is concerned with ‘Allowances and Special Rates’ and clause 26.3(f) falls under the heading of ‘special rates’. Various authorities over the course of the years have held that allowances are paid in respect of a special condition or identifiable event or disability, and are not paid in respect of matters that arise in the ordinary course of duties. See for example, the Steel Industry Awards Case referred to earlier. See also, in comparatively more recent times, the decision of Commissioner Gay in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ford Motor Company of Australia Limited AIRC Print M3523 (25 July 1995) where the Commissioner rejected a claim that the grinding of C pillars in motor vehicles was work that was ‘unusually’ dirty.
Allied to the point above is the contention advanced by the Respondent, that wage rates set for particular work (whatever that work might be) prima facie compensate the employee for that work.
The principles adverted to in the two paragraphs above are principles of long-standing industrial history. See, for example, the 1983 National Wage Case Decision (1983) 4 IR 429 where the Commission specified the following:
a)‘New allowances will not be created to compensate for disabilities or aspects of the work which are comprehended in the wage rate of the classification concerned’ (page 465); and
b)‘In the making of a first award, the longer established principles shall apply i.e prima facie the main consideration is the existing rates and conditions (General Clerks Northern Territory Award) (1965) 111 CAR 899 at p. 916’ (page 466).
Another way to look at this issue is to consider what would be the situation if the contention advanced by the Applicant were accepted. If I were to accept the Applicant’s construction of clause 26.3(f), it would produce the result that all employees in the pet food manufacturing industry would be entitled to the allowance. The necessary consequences of that chain of reasoning would be that, what are expressed to be the wage rates set in the Modern Award for the ordinary work of pet food manufacturing employees, were set without regard to the ordinary incidents of their work.
When all of the above matters are considered, I am of the view that the reference point for assessing whether the work of the Applicant is ‘unusually’ dirty is the work the Applicant ordinarily performs. The reference point for the Applicant is not the work performed by other employees who might be covered by the Award. The answer to question one posed by the parties is ‘no’.
The fact that I have come to the conclusion above does not of itself necessarily result in a dismissal of the Applicant’s claim. It is still necessary to consider whether there is any part of the work performed by the Applicant that was of an ‘unusually dirty, dusty or offensive nature’ within the meaning of clause 26.3(f) of the Award.
In order for the Applicant to succeed and claim the dirty work allowance as contemplated above, the Applicant would need to demonstrate that there is some aspect of the work that she has undertaken that is ‘unusually’ dirty when compared to her ordinary work. That would require the Applicant to establish, at a minimum and on the evidence, the specific tasks or duties which are unusually dirty compared to the work she ordinarily performs, and the hours or days (or potentially some combination of both) when she performed those tasks.
The Applicant, in her material, did point to tasks which may, in the scheme of things, be regarded as work that is unusually dirty or offensive. An example may be dealing with animal product that is covered in faecal matter, or dealing with animal product which has maggots within it, depending on whether that work is ordinarily performed. The evidence before me, however, falls short of what would be required to enable the Court to make a finding that the allowance was payable in such circumstances. There is no specific evidence as to the extent to which the Applicant was required and did undertake such work. Her statements, for example, that ‘raw animal ears can come in maggotted or rotten’ are general in nature and do not disclose how often this occurred, or on what days or times it occurred. Absent such evidence, the Applicant is unable to successfully advance a claim that she is entitled to the allowance because the nature of that work is ‘unusually’ dirty when compared to her ordinary tasks. Accordingly, and on the evidence, the answer to question two posed by the parties is ‘no’, and it therefore becomes unnecessary to answer question three posed by the parties.
Finally, to the extent that I might be found to be in error in relation to the construction of the dirty work allowance clause and that the Applicant’s construction is preferred, the Applicant would nevertheless not have succeeded in this claim. That is because she did not put any evidence before the Court in relation to the work performed by other employees covered by the Award. Absent evidence of that type, the Applicant cannot succeed in demonstrating that the work she undertakes is ‘unusually’ dirty when compared to the work performed by other employees whose work is governed by the Award. The Applicant’s case would therefore nevertheless fail on the state of the evidence.
For all of the above reasons, the Application and claim must be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 26 June 2020
Annexure A
Statement of agreed facts
The Background
The Respondent, Programmed Skilled Workforce Ltd (PSW), operates a labour hire business.
PSW supplies casual labour hire workers to pet food manufacturer Dried and True Pty Ltd (Dried & True).
The Applicant, Leanne Harding-Colliss (Ms Colliss), was employed by PSW as a casual production worker to work at the Site for Dried & True.
Dried & True’s operations
Dried & True operates a manufacturing facility at Howlong, New South Wales (Site).
Dried and True manufactures dried pet treats (such as pigs ears, kangaroo tails, pigs trotters, beef jerky and vegan treats such as sweet potato) utilising specialised temperature controlled drying facilities.
The Dried & True Site has three main rooms, the ‘wet room’, the ‘WIP room’ and the ‘dry room’.
The wet room
The ‘wet room’ is where the raw animal product first arrives into the processing plant.
The raw animal product is delivered to the Site by trucks in large skips. Each skip contains chilled, thawed animal product which has already been sorted. For example, a skip will contain raw pigs ears only, or kangaroo tails only.
The raw animal product is tipped out of the skips onto a mobile sorting table. This step occurs outside of the plant.
Once the product is on the sorting table, it is wheeled into the ‘wet room’ and secured for processing.
In the ‘wet room’, production workers transfer the raw animal product onto large baking trays.
There are typically two production workers on each of the four sides of the sorting table (Sorters). The sole task of the Sorters is to transfer the raw animal product onto the baking trays in preparation for the dehydration process. The baking trays are then slotted into trolleys, ready to be wheeled to the ovens.
Within the wet room there is a band saw. The band saw is used to cut larger items of raw product (particularly bones) into manageable sizes. Product is wheeled to the band saw in tubs.
The operator of the band saw (Band Saw Operator) takes product from the tubs, cuts it into smaller pieces, and places the items onto a conveyor where it is returned into the Sorters for racking.
The WIP room
The ‘WIP room’ (or the ‘work in process’ room) is where the dehydrating ovens are located. In the WIP room the baking trays (containing the raw animal product) are transferred into the dehydrating ovens.
After the product has been dehydrated, the dried pet treats are sorted, packaged and wrapped.
The Dry room
The ‘dry room’ is where the finished product is sorted and stored, ready for despatch.
Protective clothing
All staff working at the Site, including PSW’s employees, are provided with fresh ‘whites’ (pants and long sleeve shirts), a full length industrial plastic apron and waterproof calf-high gumboots. Fresh whites are provided at the commencement of each shift. Additionally, waterproof rain coat attire and waterproof gloves are available to employees who wish to wear them.
The Site keeps cupboards of fresh whites in the locker room.
If an employee’s clothes become soiled, they are encouraged to leave their workstation to change into clean whites. Employees may change into fresh whites as many times as is required during a shift.
Ms Colliss’ employment
Ms Colliss commenced employment with PSW on 7 November 2016.
As a production worker at the Site, the terms and conditions of Ms Colliss’ employment was regulated by the Food, Beverage and Tobacco Manufacturing Award 2010 (Award).
Initially Ms Colliss performed work in the ‘wet room’ of the Site as a Sorter. As a Sorter, Ms Collis was classified as a level 2 employee under the Award.
Subsequently, Ms Colliss commenced working as a Band Saw Operator. As a Band Saw Operator, Ms Collis was classified as a level 3 employee under the Award. Ms Collis continued to perform the role of Band Saw Operator up until the end of her employment with PSW.
On 15 February 2019, Ms Colliss ceased employment with PSW because she accepted permanent employment with Dried & True.
Ms Colliss continues to work for Dried & True as a Band Saw Operator at the Site.
The dirty work allowance
At all relevant times, clause 26.3(f) of the Award provided that ‘an employee who performs work of an unusually dirty, dusty or offensive nature must be paid 2.9% of the standard rate per hour extra’.
At all relevant times, the ‘standard rate’ was defined in clause 3 of the Award as ‘the minimum hourly wage prescribed for the Level 5 classification in clause 20.1(a)’.
The Award provided for the following minimum hourly rates of pay for the Level 5 classification:
Period Minimum Hourly Rate
7 November 2016 to 30 June 2017
$20.61 1 July 2017 to 30 June 2018 $21.29
1 July 2018 to 15 February 2019
$22.04
Accordingly, under clause 26.3(f) of the Award the allowance for performing work of an unusually dirty, dusty or offensive nature was as follows (rounded to the nearest cent):
Period Minimum Hourly Rate
7 November 2016 to 30 June 2017
$0.60
1 July 2017 to 30 June 2018
$0.62
1 July 2018 to 15 February 2019
$0.64
PSW did not pay Ms Colliss any dirty work allowance for any period of her employment.
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