McCain Foods (Aust) Pty Ltd v Australian Manufacturing Workers' Union - [2022] FWC 2358

[2022] FWC 2358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

McCain Foods (Aust) Pty Ltd
v

Australian Manufacturing Workers’ Union

(C2022/5999)

VICE PRESIDENT HATCHER

SYDNEY, 5 SEPTEMBER 2022

Appeal against decision [2022] FWC 2110 of Deputy President Clancy at Melbourne on 9 August 2022 in matter number C2022/1104 – stay application – stay order granted.

McCain Foods (Aust) Pty Ltd (McCain) has lodged an appeal, for which permission is required, against a decision made by Deputy President Clancy on 9 August 2022.[1] The decision concerned an application by the Australian Manufacturing Workers’ Union (AMWU) under s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute concerning the proper interpretation of provisions concerning staffing levels under the McCain Foods (Aust) Pty Ltd Ballarat Production Enterprise Agreement 2019 (Agreement). Clauses 16.1-16.2 of Appendix 1 of the Agreement provide:

16. Crewing levels

16.1 Prior to the commencement of this Agreement, crewing levels have been established to reflect workloads, rosters and business needs. Crewing levels for the Potato Products Plant are as follows

·Potato Processing 7 roles
·Raw/Frozen Inspection 5 roles
·Quality Control 3 roles
·Potato Packing 11 roles
·Production Put Away 3 roles

16.2 Planned crewing levels may be subject to change due to changes in investment in capability and technology from those in place at the date of commencement of this Agreement. Any such change will be subject to consultation under clause 10 of the Agreement.

(emphasis added)

The AMWU contended before the Deputy President that clause 16.1, on its plain meaning, required that 11 positions be staffed in the potato packing area of McCain’s plant, in circumstances where McCain was currently only operating with 9 positions. McCain contended that the provision was ambiguous, that the staffing level had been reduced below 11 in January 2018 pursuant to a provision in the same terms as clause 16.2 under the predecessor enterprise agreement, and that clause 16.1 should not be construed as constituting an operational requirement under the Agreement to restore the staffing number to 11.

The Deputy President determined that clause 16.1 had a plain and unambiguous meaning which required McCain to allocate 11 crew members per shift to the potato packing area.

In its notice of appeal, McCain contends that the Deputy President’s construction of clauses 16.1 and 16.2 of Appendix 1 of the Agreement was in error on the following grounds (in summary):

(1)The Deputy President erred in finding that clause 16.1 was not ambiguous, since ambiguity arises from a conflict between the first, second and third sentences of clause 16.1 and the first sentence of clause 16.2, having regard to the objective background circumstances concerning the change to the crewing level prior to the Agreement being made.

(2)The Deputy President erred in finding that clause 16 required McCain to allocate 11 crew members per shift to the potato packing area in circumstances where clause 16.1, on its proper construction, imposes no obligation to maintain the role…

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

AGLC: McCain Foods (Aust) Pty Ltd v Australian Manufacturing Workers' Union [2022] FWC 2358
Case: [2022] FWC 2358
Decision Date: 5 SEPTEMBER 2022

CaseChat Overview and Summary

McCain Foods (Aust) Pty Ltd has appealed a decision of the Deputy President of the Fair Work Commission, who had determined that a clause in the McCain Foods Ballarat Production Enterprise Agreement 2019 required McCain to allocate 11 crew members to the potato packing area. The Australian Manufacturing Workers' Union opposed the grant of a stay of the decision pending the determination of the appeal. The Vice President, Hatcher, was required to determine whether there was an arguable case with reasonable prospects of success and whether the balance of convenience favoured the grant of a stay.

The Vice President found that there was an arguable case with reasonable prospects of success on the basis that the objective background facts, together with the reference in clause 16.1 to the establishment of crewing levels prior to the commencement of the Agreement, and the title of Appendix 1 prescribed by clause 1 as being the McCain Foods Ballarat Production Employees 7-Day Continuous Shift Roster Agreement 2014, rendered it reasonably arguable that clause 16.1 was ambiguous and susceptible to a different construction than that preferred by the Deputy President. The Vice President was also persuaded that the balance of convenience weighed in favour of the grant of a stay, given that the refusal of a stay would result in McCain incurring significant costs in recruiting and training additional staff, and that there was a real prospect that the AMWU would commence litigation in a court concerning the contested staffing issue unless a stay of the decision was granted. The Vice President also rejected the AMWU's submission that it had an independent right to enforce the terms of the Agreement in a court and that the grant of a stay would not affect that right.

The Vice President concluded that the grant of a stay was appropriate and would be issued in conjunction with this decision. The appeal is to be heard in approximately seven weeks' time. The Vice President considered that the period of operation of a stay order for some weeks was not likely to be of practical significance given the temporal context of the dispute. The Vice President also rejected the AMWU's submission that there was "nothing to stay" in this case, since it was plain that both parties regarded the requirement to increase the staffing level to 11 as the necessary legal consequence of the Deputy President's decision.

Orders