McCain Foods (Aust) Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2010] FWA 3890
•21 MAY 2010
[2010] FWA 3890 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
McCain Foods (Aust) Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2010/3455)
Food, beverages and tobacco manufacturing industry | |
COMMISSIONER GOOLEY | MELBOURNE, 21 MAY 2010 |
Alleged dispute concerning the scheduling of rostered days off. .
[1] McCain Foods (Australia) Pty Ltd (McCain) and the Automotive Food Metals Engineering Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) are in dispute about the timing of rostered days off (RDOs) under the McCain Foods (Aust) Pty Ltd Ballarat Union Collective Agreement 2007 (the 2009 Agreement). The 2009 Agreement was approved by Fair Work Australia on 31 March 2010 and came into operation on 7 April 2010.
[2] Mr Ogilvie, a legal practitioner sought permission to appear for McCain and permission was granted. Mr Neylon gave evidence for McCain. Mr Hale appeared for the AMWU and Mr Martin and Mr Lavery gave evidence for the AMWU.
[3] After the conclusion of the hearing I wrote to the parties on 29 April 2010 and again on 30 April 2010. In my correspondence of 30 April 2010 I provided the parties with an opportunity to provide further submissions. Both parties provided supplementary submissions and I have had regard to those submissions in this decision.
The dispute
[4] McCain operates two processing facilities, a french fry plant and a prepared foods plant at Ring Road Wendouree. The dispute relates only to the french fry plant. The french fry plant operates 24 hours a day on a five day roster Monday to Friday. Production employees accrue RDOs based on the hours worked each week.
[5] McCain sought to implement a roster of RDOs for 2010 which provided that employees in the french fry plant would not have a rostered day off on 30 April or 28 May and those rostered days off were to be moved to Melbourne Cup week in November. The 2010 roster for the prepared foods plant provided for a rostered day off on the fourth Friday of each work cycle except when the RDO fell on Good Friday. There was no dispute about this roster.
[6] Mr Neylon who gave evidence on behalf of McCain has been employed as the Human Resource Manager since 2006. Mr Neylon gave evidence that there were four reasons for the proposed disputed roster:
(1) there is an increased supply of new potatoes in the first half of the year and this had an effect on productivity and yield figures and therefore it is preferable for McCain to schedule more production in the first half of the year; 1
(2) the scheduling of a nine day break in November enabled necessary maintenance to be performed; 2
(3) there are more public holidays in the first half of the year and it is more efficient for production and less mechanical strain on the plant if McCain can limit the number of times it is required to shut down and restart the plant. 3
(4) Production employees will be able to schedule holidays and travel because of the extended period off in November and employees would have the benefit of the Anzac Day holiday and the Queen’s birthday holiday and will therefore receive an adequate break around the time they would otherwise receive the RDO. 4
[7] The AMWU opposed the proposed roster and discussions about the proposed roster were held. It is not clear from the evidence when these discussions occurred. Mr Neylon’s evidence was that the roster was presented to the AMWU and employees in late 2009. Mr Neylon’s evidence was that french fry employees held discussions about the roster and advised McCain that they would vote on whether they accepted the roster or not. 5 Mr Neylon’s evidence was that the RDOs were worked in accordance with the roster but in April 2010 the employees articulated their claim that they were entitled to a RDO each 28 days and that the setting of those days must be by agreement with the AMWU and the employees.
[8] The AMWU did not make submissions about why it opposed the movement of the April and May RDOs to November 2010.
[9] In effect the dispute is over who fixes the RDOs, when RDOs must be rostered and if the employees consent is required if a RDO is to moved from the fourth Friday of the work cycle.
[10] All parties accepted that once the RDO roster was set, any variation to the roster during the year was by agreement with the employees so that issue is not in dispute in this matter.
The industrial instrument
[11] The 2009 Agreement is comprised of three parts; A, B and C.
[12] Clause 3 of the Agreement provides as follows:
“This Agreement is structured in three parts;
Section A: Common Terms & Conditions for all employees covered by this agreement;
Section B: Conditions additionally applying to production employees only;
Section C: Conditions additionally applying to maintenance employees only.
Should there be any inconsistency between section A of this Agreement and sections B and C, section A of this agreement will take shall take precedence to the extent of any inconsistency.”
[13] The 2009 Agreement deals with rostered days off at clause 2 of Section B and clause 19 of Appendix 2 as follows:
2. ROSTERED DAYS OFF (RDO)
This clause was only relevant to French Fry Monday to Friday workers when the French Fry factory was working a 7-day roster.
Under the current situation of operating Monday to Friday this clause is not applicable as RDOs are on fixed dates for all affected employees.
It is agreed that each employee will receive a Rostered Day Off in each 28-day cycle in any or a combination of the following:
i. A Rostered Day Off on a Friday falling within the cycle or where a Public Holiday falls on that Friday the Thursday immediately before the Friday, and/or
ii. Any day off the week that an employee may nominate, and/or
iii. Work the rostered day off at ordinary rates of pay and bank the days to a maximum of 5 days (award provision) to be taken within 12 months of the date the last banked day was accrued.
iv. The Rostered Day Off in item (i) of this clause will be assigned by Ballot conducted by a management representative and an employee representative and will be by Department and class of duties.
v. Should a Weekly or Short term employee request to work their Rostered Day Off performing their normal duties, and choose not to substitute or bank their RDO, they will be given first preference and be paid in accordance with the O/T rates applicable for working on a RDO prior to the commencement of this agreement.
vi. Where more employees request a transfer of their balloted RDO item (i) or nominated day item (ii) to the same day than can be reasonably accommodated without disruption to the operation of the section/department the selection of the successful employee or employees will be based on first come first served.
vii. Only full days can be taken as Rostered Days Off.
viii. Employees wishing to change their RDO must give at least one weeks notice however where mutually agreed a lesser notice will be accepted.
[14] Appendix 2 of Part B of the 2009 Agreement provides at clause 19 as follows:
19.6 Notice of days off
Except as provided in 19.7 and 19.8 hereof, in cases where, by virtue of the arrangement of the employee’s ordinary working hours, an employee, in accordance with 19.2.3 and 19.2.4 hereof, is entitled to a day off during the employee’s work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday the employee is to take off. Provided that a lesser period of notice may be agreed by the employer and majority of employees or section or sections concerned.
19.7 Substitute days
19.7.1 An employer, with the agreement of the majority of employees concerned may substitute the day an employee is to take off in accordance 19.2.3 and 19.2.4 hereof for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.
19.7.2 An individual employee, with the agreement of the employer, may substitute the day the employee is to take off for another day.
19.8 Flexibility in relation to rostered days off
19.8.1 Notwithstanding any other provision of this clause, where the ordinary hours of work of an establishment, plant or section are organised in accordance with 19.2.3 and 19.2.4 hereof an employer, the union and the majority of employees in the establishment, plant, section or sections concerned may agree to accrue up to a maximum of five rostered days off in special circumstances such as where there are regular and substantial fluctuations in production requirements in any year.
19.8.2 Where such agreement has been reached the accrued rostered days off must be taken within twelve months of the date of on which they fall due.
19.8.3 It is understood between the parties that the involvement of the union would be necessary in cases where it has members in the plants concerned and not in non-union establishments.
The predecessor industrial instruments
[15] I examined the earlier agreements and awards to see if they assisted in resolving the dispute.
[16] The provisions in the 2009 Agreement replicated the provisions in the McCain Foods (Aust) Pty Ltd Ballarat Union Collective Agreement 2007.
[17] An earlier agreement the McCain Foods (Aust) Pty Ltd Ballarat Union Collective Agreement 2003 (the 2003 Agreement) which was approved on 20 November 2003 provided for rostered days off as follows:
“25.0 FLEXIBLE ROSTERED DAYS OFF (Food Preserver Award Employees)
It is agreed that each employee will receive a Rostered Day Off in each 28-day cycle in any or a combination of the following:
(i) A Rostered Day Off on a Friday falling within the cycle or where a Public Holiday falls on that Friday the Thursday immediately before the Friday, and/or
(ii) Any day off the week that an employee may nominate, and/or
(iii) Work the rostered day off at ordinary rates of pay and bank the days to a maximum of 5 days (award provision) to be taken within 12 months of the date the last banked day was accrued.
(iv) The Rostered Day Off in Item (i) of this clause will be assigned by Ballot conducted by a management representative and an employee representative and will be by Department and class of duties.
(v) Should a Weekly or Short term employee request to work their Rostered Day Off performing their normal duties, and choose not to substitute or bank their RDO, they will be given first preference and be paid in accordance with the O/T rates applicable for working on a RDO prior to the commencement of the agreement.
(vi) Where more employees request a transfer of their balloted RDO item (i) or nominated day item (ii) to the same day than can be reasonably accommodated without disruption to the operation of the section/department the selection of the successful employee or employees will be based on first come first served.
(vii) Only full days can be taken as Rostered Days Off.
(viii) Employees wishing to change their RDO must give at least one weeks notice however where mutually agreed a lesser notice will be accepted.
(ix) Where any problems arise they shall be dealt with through the dispute resolution procedure of the relevant award.
(x) In the event of an employee requesting or being balloted a RDO before they have sufficient hours banked to cover the RDO they will be advanced hours from their next RDO accrual. The company reserves the right to recover these advance payments in the event that the employee terminates with their RDO banked hours overdrawn.
(xi) Casual employees who work 19 days or 152 ordinary hours in a 28 day cycle will, if required to work on the 20th day, be entitled to payment as for a Saturday which is the equivalent to working on an RDO prior this agreement.
(xii) Employee must notify their Supervisor of their intention to work to RDO at least 1 week prior however with mutual agreement the notice period may be less.
(xiii) The flexible RDO will after 6 months of implementation be reviewed by the parties.”
[18] As can be seen parts (i) to (viii) in the 2009 Agreement are in the same terms as (i) to (viii) above but for some reason (ix) to (xiii) was not included. Neither party could provide any explanation for this.
[19] Neither party provided any evidence about the history of the implementation of the 38 hour week prior to the 2003 Agreement.
[20] The McCain Foods (Aust) Pty Ltd Enterprise Agreement 1999 6 provided that the agreement was read in conjunction with the Food Preservers' Interim Award 1986 (the Interim Award). It also preserved all existing conditions. The agreement did not provide for RDOs so either the provisions in the Interim Award prevailed or the existing conditions prevailed.
[21] The McCain Foods (Aust) Pty Ltd Ballarat Enterprise Agreement 1997 7 also provided that the agreement was read in conjunction with the Interim Award as at 1 April 1997. The agreement did not provide for RDOs so the provisions of the Interim Award prevailed. I was not able to determine if there were any earlier agreements.
[22] The Interim Award was varied in 1993 to provide for a 38 hour week. 8 However it is clear from that decision that the implementation of the 38 hour week at many locations predated that decision. Each of the subsequent awards provided for the implementation of the 38 hour week and provided for a RDO during the work cycle. The method of implementation of the 38 hour week was to be decided on a plant by plant basis:
“In each plant, an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.”
The principles of interpretation of industrial instruments
[23] Vice President Lawler 9 set out the principles of construction of industrial instruments and I adopt those principles in construing this agreement.
Ambiguity and uncertainty
[24] The 2009 Agreement is ambiguous and uncertain.
[25] Clause 2 of Section B says that RDOs are on fixed dates but does not say how they are fixed and by whom. Appendix 19 makes reference to clause 19.2.3 and 19.2.4 and no such clauses exist in the 2009 Agreement. These clauses are said to be derived from the Food Preservers Award 2000 (the 2000 Award). However it appears, due to the removal of some clauses from the 2000 Award in Appendix 2, that there is no correlation between the numbers in the 2000 Award and the numbers in the Appendix. Mr Ogilvie agreed that the reference in clause 19 to clauses 19.2.4 and 19.2.3 are a reference to clauses 22.2.3 and 22.2.4 of the 2000 Award. Those clauses relevantly are:
22.2.3 by fixing one weekday on which all employees will be off during a particular work cycle
22.2.4 by rostering employees off on various days of the week during a particular work cycle so that each employee has a week day off during the cycle.
[26] These provisions are part of the clause in the 2000 Award dealing with the implementation of the 38 hour week. These provisions have been omitted from the 2009 Agreement. No explanation of this has been provided by either party.
[27] Ambiguity and uncertainty arises because clause 2 of Section B does not provide how the dates are to be chosen and the provisions in Appendix 2 make reference to non existent clauses.
The Evidence
[28] Mr Neylon gave evidence based on his own knowledge and based on information provided to him by Ms Nebozuk. Ms Nebozuk who Mr Neylon said had been responsible for fixing the RDOs from at least 2002 was not called to give evidence.
[29] His evidence was that the roster is developed based on the previous years schedule with changes made to take into account “the operational needs of the business, as well as public holidays”. 10 He said Ms Nebozuk provided a proposed schedule to the AMWU and the AMWU shop stewards and then a meeting was held to answer any questions and explain the business reasons why RDOs were scheduled on certain days. His evidence was that this was not done to obtain the AMWU’s agreement to the schedule.11
[30] A number of rosters were tendered to support Mr Neylon’s evidence that the employer fixed the RDOs and that the RDO was not on the fourth Friday of the work cycle.
[31] The 2002 roster 12 was in place prior to the making of the 2003 Agreement which was approved on 20 November 2003. It is clear from the 2003 roster that RDOs were not every fourth Friday of the work cycle. While the general pattern was that the RDO occurred on the fourth Friday of a work cycle there appears to be some movement of RDOs connected with public holidays. For example the March RDO was due on 15 March and was moved to 2 April to coincide with Easter. No RDO occurred in October and it was moved to November to coincide with the Melbourne Cup Public Holiday.
[32] The 2008 roster 13 similarly generally provided for a RDO every fourth Friday with some movement of RDOs around the Queens Birthday and the Melbourne Cup Public Holidays.
[33] The 2009 roster 14 also did not have a RDO every fourth Friday of a work cycle. It did however appear to assume that the starting point was that the RDOs were scheduled every fourth Friday of the work cycle. An explanation about RDO changes on the roster sets out the dates on which the RDO could have been set on and details the move. The contention of the AMWU that RDOs are on a fixed date is supported by the fact that, the person who drew up the roster started from the presumption that the RDOs were on the fourth Friday of the work cycle and that person knew the fixed dates. Even after an RDO has been moved from 29 May to 5 June to align with the public holiday, the person who drew up the RDO roster did not then place the next RDO in four weeks from 4 June but worked from the presumption that the next RDO was four weeks from 29 May namely the 26th June.
[34] Mr Neylon accepted in his evidence that the normal practice was to schedule one “each calendar month, provided there weren’t reasons, being the long weekend which has happened in the 2008 and 2009 and the 2002 calendars.” 15
[35] Mr Neylon’s evidence was that McCain had always fixed the dates for RDOs by publishing a schedule of RDOs prior to the commencement of the relevant calendar year. 16 His evidence was that the RDOs were provided to the employees and the AMWU, not to obtain their agreement, but to explain the operational reasons for McCain fixing the RDOs. His further evidence was that RDOs are not always scheduled to ensure employees receive one RDO every 28 days. 17
[36] Mr Lavery had worked at McCain from the late 1980’s and he is a shop steward. He gave evidence that the RDOs are set on a 28 day cycle and that the roster for RDOs for the following year are generally agreed around November of the preceding year. 18 His consistent evidence is that the roster is based on a RDO every four weeks except if a RDO falls on a public holiday or if there is agreement to move a RDO.19 While his evidence about the voting process was inconsistent, his evidence about when RDOs were held was consistent.
[37] Mr Martin had worked at McCain for 31 years and he had been a shop steward for 12 years. Mr Martin’s evidence was that “ever since rostered days off have came in they’ve been observed every 28 days, every 28 calendar days, so every fourth Friday. So you know when they are due. 20 He further gave evidence that the company requested the employees vote. He gave evidence that Michelle “would call the shop steward, she would hand them a copy of the calendar, ask us to take it out to the people and see if there was any problems, we would do that. The people would vote whether they accepted certain days or not or whether they accepted the calendar as whole and it was taken as a vote – taken back to the company and told them if there was any changes required and then it was taken to a vote of the people.”21
[38] An unsigned document dated 23 June 1983 addressed to McCain was tendered by the AMWU. The letter says that it sets out the “agreement in respect to the introduction of an average working week of 38 hours.” 22 That document provided that the RDO would be on Friday 23 September 1983 and each fourth Friday thereafter.
[39] A letter to the AMWU from McCain dated 12 February 2001 was tendered by the AMWU. It set out a proposal by McCain to stagger the RDOs rather than closing the french fry plant on each fourth Friday of each month. 23
[40] While Exhibit AMWU 2 is not without its difficulties, it is clear from Exhibit AMWU 5 that at least at 2001 McCain understood that their obligation was to have a RDO on each fourth Friday of each month.
Findings
[41] The provisions of the 2009 Agreement are not unambiguously clear. The method adopted by the parties in drafting the 2009 Agreement, including the omission from the 2009 Agreement of any provision that sets out how RDOs are to be fixed, has not assisted the Tribunal. If parties cut and paste awards and predecessor agreements to make new agreements they should take particular care to ensure that the terms of the final document are internally consistent. Otherwise they may find that rights, entitlements and obligations are unenforceable. 24
[42] Despite the submissions of McCain that Clause 2 of Section B is the agreement between the parties about RDOs, Clause 2 of Section B simply provides that the provisions that appear in italics don’t apply because RDOs are on fixed dates for all affected employees. The clause does not say who fixes the dates or how they are fixed. Further it provides no mechanism that allows for parties to move RDOs once they are fixed.
[43] Clause 18 provides for hours of work. It provides that the ordinary hours of day work shall be 38 per week. It does not provide for how ordinary hours are worked.
[44] Clause 18.7.2 deals with rostered days off falling on a public holiday. It makes reference to clauses 11.2.2 or 11.2.4 and clause 22 . There is no clause 11.2.2 or 11.2.4 in the 2009 Agreement and clause 22 is about make up time and a reference to it in this context makes no sense.
[45] Clause 19.6 sets out how much notice an employer must give an employee of the RDO. It doesn’t expressly say when the RDO occurs. It says that, if in accordance with clause 19.2.3 and 19.2.4, an employee is entitled to a day off during the employee’s work cycle, the employer must provide at least four weeks notice of the day the employee is to take off.
[46] Clause 19.7 deals with the circumstances in which RDOs may be substituted by agreement. Again there is a reference to clauses 19.2.3 and 19.2.4.
[47] Clause 19.8 provides for the accruing of a maximum of 5 RDOs with agreement. Again there is a reference to clauses 19.2.3 and 19.2.4.
[48] Despite the repeated references to clauses 19.2.3 and 19.2.4 there is no clause 19.2.3 and 19.2.4 in the Agreement.
[49] Unfortunately the parties did not provide any evidence of the mutual intentions of the parties in not including these provisions in the 2009 Agreement. It was agreed that the references to clauses 19.2.3 and 19.2.4 are references to what became clause 22.2.3 and 22.2.4 in the Food Preservers’ Award 2000 which were part of the clause in the Award dealing with the implementation of the 38 hour week which provided as follows:
22.2.3 by fixing one weekday on which all employees will be off during a particular work cycle; or
22.2.4 by rostering employees off on various days of the week during a particular work cycle so that each employee has one week day off during the cycle.
[50] It is clear that when implementing RDOs at McCain the parties elected to implement the 38 hour week by rostering one weekday on which all employees will be off during a particular work cycle. This is supported by Mr Neylon’s evidence. The rosters produced by McCain in 2009 25 and 201026 all start from the premise that there is a RDO on a fixed date each month and then identify how each RDO is to be moved. If the starting point was not a RDO on a fixed date each month then this explanation was unnecessary. McCain on its submissions could have simply put the RDOs on any day in the calendar. RDOs would not have to be moved because on McCain’s construction they are not on a particular date until McCain fixes the date and publishes the roster.
[51] Both parties accepted that given the ambiguity I could have regard to extrinsic material. Mr Ogilvie for McCain sought to rely on the conduct of the parties in previous years.
[52] Mr Neylon said that employees were informed of the proposed roster but were not required to agree. The Union’s witnesses said that they had a vote on the roster. Unfortunately Mr Neylon could not give direct evidence about what occurred in the discussions with the shop stewards as he did not have the discussions and the person who did, was not called to give evidence. I accept the evidence of the shop stewards that the roster was discussed with them each year and whilst there is some suggestion that there had been previous disagreements about the proposed roster it appears that until 2010 no real dispute arose about when the RDOs were organised. It is also not in dispute that RDOs were moved on occasion to coincide with the next public holiday. However it does not appear that these changes gave rise to any disagreement between the parties so it was only after McCain proposed moving the April and May RDOs to November this year that disputation arose.
[53] Unfortunately the issue of whether the RDOs were fixed by McCain or after being voted on by the employees cannot be determined on the evidence before me. It is conceivable that McCain put out the roster to advise employees of the proposed roster and while willing to take on board any employee feedback took the view that the final roster was their decision. Similarly it is conceivable that the employees voted whether to accept or reject the proposal and on each occasion prior to 2010 agreement was reached between McCain and the employees and their union.
[54] I do not find the evidence of the parties about how the roster was developed in previous years assists in resolving this dispute. This is not a situation where it can be established that either the construction put forward by McCain or the AMWU is “a custom and practice that has been observed…. for some 20 years.” 27
[55] I do not accept the submissions of the employer that clause 2 of the 2009 Agreement means that the RDOs are fixed by the employer and I do not accept the employer’s submissions that I should not have regard to clauses 18.7, 19.6, 19.7 or 19.8 when reaching my decision.
[56] McCain argues that I should not have regard to these clauses because the AMWU does not seek to rely on these clauses; the references to clauses 19.2.3 and 19.2.4 mean that clauses 19.6 and 19.8 can never have operative effect; the term work cycle is not defined and employees do not work a work cycle; clause 2 overrides clauses 19.6 and 19.8 because of inconsistency; and because the parties intended the general provisions to give way to the specific provisions in clause 2 of Section B. In this latter point McCain relied upon Refrigerated Express Lines (A’Asia) Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333 at 347. 28
[57] Further McCain submits that it is not open to Fair Work Australia to conclude that the provisions 22.1 to 22.5 should be taken to be part of the Agreement because they have been deliberately omitted. 29
[58] That the AMWU did not seek to rely upon clauses 19.6 and 19.8 is not relevant to the construction of the Agreement.
[59] I do not accept, because there are references to clauses 19.2.3 and 19.2.4 in the 2009 Agreement and those clauses do not exist in the 2009 Agreement, that I should not give meaning to rest of the clauses. Clause 19.6-19.8 make sense if the references to “in accordance with 19.2.3 and 19.2.4 hereof” are omitted. There is no need to reference those sections in the 2009 Agreement because the RDOs at McCain are not fixed by either method set out in those clauses. At McCain the RDOs are fixed by employees having an RDO on a fixed date.
[60] I also do not accept that because the concept of work cycle is not defined in the 2009 Agreement it has no meaning. Clearly at McCain the work cycle is the four week period over which the 152 hours are averaged.
[61] I do not accept that there is a direct inconsistency between clauses 19.6 and 19.8 and clause 2 of Section B because while clause 2 says RDOs are fixed clause 19.6 sets the parameters of when they are fixed and clause 19.7 and 19.8 provide how RDOs can be moved once they have been fixed. Given the brevity of clause 2 of Section B it cannot be said that it is a specific provision dealing with RDOs and clauses 19.6-19.8 are general provisions.
[62] Further the case cited by McCain does not assist their contention. In his decision Deane J held that “as a matter of general construction, where there was a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter the latter must prevail and to the extent of any repugnancy, the general provisions would be inapplicable to the subject matter of the special provisions.” 30
[63] In this case clause 2 of Section B and clauses 19.6-19.8 are all specific provisions dealing with RDOs. It is not possible to characterise clauses 19.6-19.8 as general provisions.
[64] Finally McCain submit that I should not conclude that 22.1 to 22.5 are part of the Agreement because they were deliberately omitted. No evidence was put before the Tribunal to support a conclusion that the clauses were deliberately omitted. In fact no evidence was put forward about what the parties intentions were in continuing references in clauses 19.6-19.8 to other clauses from the Food Preservers Award 2000. However it is not necessary to conclude that 22.1 to 22.5 are a part of the Agreement. These clauses were probably omitted because the parties at the time of drafting the 2009 Agreement knew how the 38 hour week was implemented at McCain. They did not need clauses that provided a mechanism for the implementation of the 38 hour week because it had been long implemented at McCain. Further the very use of the words, RDOs are on fixed dates, without more suggests that parties knew not only the days when RDOs occurred but the dates on which they would occur. This is supported by the evidence of the AMWU witness and the calendars prepared by McCain. It was never contested that McCain in preparing the 2010 roster knew the dates on which the RDOs were to occur. It was because these dates did not suit their needs that they sought to move them.
[65] McCain submit I am not to take a narrow and pedantic approach to the interpretation of the agreement and I agree with that submission. It would be a narrow and pedantic approach to say that because the cross referenced clauses in 19.6-19.8 have been omitted the clauses have no work to do. I do not accept that I should disregard clauses 19.6-19.8. As a general principle “all words must prima facie be given some meaning and effect.” 31 Further even if I accepted that clause 2 of Section B was in conflict with 19.6-19.8, which I do not accept, I would not take the approach suggested by McCain of ignoring those provisions, given it is improbable that the makers of the Agreement “could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result”.32
[66] The construction of the Agreement contented for by McCain is not consistent with the practice at McCain. On their construction once the roster is fixed it cannot altered even by Agreement because on their construction clauses 19.6-19.8 are to be ignored and clause 2 provides no mechanism which permits the RDO’s to be moved. Yet it is clear from the evidence that both the AMWU and McCain accept that after the roster is put out RDOs can be moved and are moved by agreement. 33
[67] Further on the construction put forward by McCain, McCain could roster all the RDOs in one block and on any day of the week. There is nothing in the past practice, the previous agreements or the current agreement which support such an interpretation
[68] In resolving the dispute regard must be had to all the clauses in the agreement and all the surrounding circumstances.
[69] This decision has been difficult to reach. Neither party provided strong evidence in support of their contentions. The union witnesses reiterated their strongly held view that you don’t need a calendar to work out when the RDOs are as they are on the fourth Friday and that can only be altered by agreement. The company says they have always determined when the RDOs occur albeit after consultation with the employees.
[70] Unfortunately until this dispute arose both views are supported by the evidence, as no evidence was put forward about any occasion where the roster was not agreed and either the union’s views prevailed or the employer’s views prevailed.
[71] In the circumstances I am required to settle this dispute by arbitration. I am empowered to make any orders I consider appropriate. The only limitation is I must not make a decision inconsistent with the Act or the Agreement. 34
[72] I have had regard to the submissions of McCain about why they want to move the RDOs. McCain point to their production needs and I accept that they have legitimate reasons for seeking to move the RDOs. I also agree that the employees who are entitled to RDOs are not disadvantaged by having their April and May RDOs moved to November thereby giving them five consecutive days off work.
[73] I do not consider the fact that casual employees may or may not be affected by the decision to be a relevant consideration in resolving the dispute nor do I consider it relevant to consider that weekly employees may receive less overtime. After all RDOs were introduced to lessen the number of hours worked by employees not to increase employee access to overtime. In any event no evidence was put forward to support a conclusion that if the RDOs that were scheduled for April or May were not moved that work would be scheduled on those days and overtime would therefore be worked.
[74] However I cannot ignore the express words of the Agreement which makes it clear if RDOs are to be moved for production reasons from the dates fixed it must be by agreement with the union and the employees in the relevant section. That is what the parties agreed to and to find otherwise would be to determine the dispute in a manner inconsistent with the Agreement.
[75] Based on the evidence I find that employees have an entitlement to RDOs in each four weekly period. The evidence of both the AMWU’s witnesses and Mr Neylon supports the conclusion that the dates on which the RDOs occur have always been known to the parties. This is why there was no need in the Agreement to say who fixed the RDOs.
[76] I find that clause 2 of Section B provides that RDOs are fixed and I find that the days to be fixed are the fourth Friday of the four week work cycle.
[77] It is not unusual for an agreement, having fixed a day for some event to occur, to provide a flexibility mechanism to permit the date to be changed by agreement in certain circumstances.
[78] I find that clause 19.7 permits, with the agreement of a majority of employees, the employer to move the RDO to another day “in the case of a break down in machinery or a failure or shortage of electrical power or to meet the requirements of the business in the event of rush orders or some other emergency situation”.
[79] I find that clause 19.8 permits, with agreement of the union and the majority of employees in the establishment, plant, section or sections concerned, the accrual of up to a “maximum of five rostered days off in special circumstances such as where there are regular and substantial fluctuations in production requirements in any year.”
[80] I therefore find that without the agreement of the employees the RDOs cannot be moved.
[81] I therefore make the following orders:
1. RDOs are on fixed dates namely the fourth Friday of each four week work cycle.
2. RDOs may be moved by agreement in accordance with clauses 19.7 and 19.8 of the 2009 Agreement.
COMMISSIONER
Appearances:
N Ogilvie for McCain Foods (Aust) Pty Ltd.
T Hale for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU).
Hearing details:
2010.
Melbourne:
April 27.
1 Exhibit MC1 at [28]
2 Ibid at [29]
3 Ibid at [30]
4 Ibid at [31]
5 Exhibit MC1 at [33]
6 Print S2738
7 Print P5463
8 Print K9532
9 Kenneth Watson & Ors and ACT Department of Disability Housing and Community Services [2008] AIRC 29
10 Exhibit MC1 at [12]
11 Ibid at [13]-[14]
12 Ibid BJN 3
13 Ibid BJN 2
14 Ibid BJN 1
15 Transcript PN 1699
16 Exhibit MC1 at [10]
17 Exhibit MC1 at [15]
18 Transcript PN 1777,
19 Transcript PN 1790, 1811, 1841, 1848,1850, 1874
20 Transcript PN 1928
21 Transcript PN 1958
22 Exhibit AMWU 2
23 Exhibit AMWU 5
24 See AFMEPKIU v Qantas Airways Limited [2001] FCA 547 at [65] to [70]
25 Exhibit MC1 at BJN1
26 Ibid BJN 4
27 Hospira Australia Pty Ltd v National Union of Workers [2010] FWA 1199 at [29]
28 Submissions of McCain filed 6 May 2010 at [40]
29 Ibid at [41]
30 Refrigerated Express Lines (A’Asia) Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333 at 347
31 Pearce and Geddes Statutory Interpretation in Australia” 6th edition at [2.22]
32 Ibid at [2.22]
33 Exhibit AMWU 5 and Transcript PN 1648
34 Section 739
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