Mr Steven Gangell

[2018] FWC 3136

[2018] FWC 3136 [Note: An appeal pursuant to s.604 (C2018/3248) was lodged against this decision.] - refer to Full Bench decision dated 31 July 2018 [[2018] FWCFB 4344] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Mr Steven Gangell
(AG2018/1546)

FOOD PROCESS WORKER LOBETHAL ABATTOIR EMPLOYEE COLLECTIVE AGREEMENT 2008
[AC329102] [AC323986]

Meat Industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 31 MAY 2018

Application for termination of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008

[1] An application (Form F28) dated 24 April 2018 has been made to the Fair Work Commission (the Commission) by Mr Stephen Gangell (the Applicant) for termination of a collective agreement-based transitional instrument being the  Food Process Worker Lobethal Abattoir Employee Collective Agreement 2008 (the Agreement).

[2] The application is made pursuant to Item 16 Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) and, as a consequence, under section 225 of the Fair Work Act 2009 (the FW Act) and related provisions of Subdivision D of Division 7 of Part 2-4 of the FW Act.

[3] The Agreement is a collective agreement-based transitional instrument which, it is said, has passed its nominal expiry date.

[4] The Applicant is being represented by an officer of the Australian Meat Industry Employees Union (the AMIEU).

[5] The respondent employer is Lobethal Abattoirs Pty Limited (the Respondent Employer).

[6] I conducted a directions hearing of the application on 17 May 2018 and issued Directions on 18 April 2018. 1

[7] At the hearing on 17 May 2018 the Respondent Employer sought permission to be represented by a legal practitioner in these proceedings. The request was not opposed by the AMIEU. After considering the submissions made, I granted permission for the Respondent Employer to be represented by a legal practitioner in this matter. I was satisfied that this matter would be more efficiently conducted with such representation. I took into account that the Agreement is a collective agreement made under statutory provisions applying before the commencement of the FW Act. The matter is likely to be attended by certain complexity as a consequence. I also took into account the efficient conduct of proceedings in the context of the body of information which is likely to be required for the Commission to exercise its jurisdiction under sections 225 and 226 of the FW Act.

[8] The Directions I issued on 18 May 2018 invited the Applicant and Respondent Employer to give consideration to and make submissions on three matters in advance of further directions being issued:

1. Submissions on how the Commission can or should be informed of the views and circumstances of relevant employees (including employees, if any, not represented by the AMIEU);

2. The industrial relations context in which the application is made including negotiations (if any) which have occurred or are occurring with respect to wages and conditions of employment at the Lobethal abattoir;

3. Whether mediation or conciliation of the matters in issue conducted by the Commission (or otherwise) would be appropriate in advance of the determination of the matter or the issuing of directions for the determination of the matter.

[9] I received written submissions on these issues from both the Applicant and the Respondent Employer. I conducted a further directions hearing of the parties on 31 May 2018. At the conclusion of that hearing I advised the parties of my decision on the next stage in case management. These reasons record that decision.

[10] The Applicant requests that the application be set down for hearing and determination. It says that the AMIEU has taken steps over the past week to inform itself of the views of employees through the distribution of a flyer and an invitation for employees opposing the application to contact the union. It says that employees voted down a proposed agreement in April 2018 and that the union had recommended that course in light of the application Mr Gangell had made (with its support) to terminate the existing agreement and return to award coverage.

[11] The employer opposes the application. It says that it intends to shortly recommence bargaining for a new agreement and has taken steps over the past week to speak to bargaining representatives about that course. It says that the application should be adjourned for at least six months to allow bargaining to occur. It says that the union is not able to reliably communicate the views of employees as there are non-union employees on site. It believes that some bargaining representatives may have a different view to that of the Applicant and the union. It says that the bargaining round leading up to April 2018 was affected by the circumstances leading up to the vote, which included the catastrophic fire at the Murray Bridge plant and the influx of new shifts and new employees to the Lobethal site.

[12] The procedural issue that needs to be decided at the outset of dealing with this matter is important because the application has material significance to the employer and hundreds of employees. Its effect would be that, if the Agreement is terminated and no replacement agreement made, wages and conditions of employees would revert back to the relevant modern award (the Meat Industry Award 2010). The procedural issue is presented by the parties as either a pathway being cleared for Commission arbitration of that question or a pathway that permits further workplace bargaining.

[13] Though I have yet to receive evidence on the matter, it is clearly apparent from the submissions made by both parties that collective wages and conditions of employment for approximately 600 employees under the Agreement are in issue; and in a business which has experienced substantial and unexpected dislocation in recent months, and in an industrial relations environment where bargaining has occurred at the workplace level but been contested.

[14] I take into account the following:

1. The right of an applicant to invoke the Commission’s jurisdiction and, having done so, have their claim dealt with efficiently, fairly and expeditiously;

2. The employer’s desire and intent to resume bargaining;

3. The statutory scheme, and the historic practice of the Commission, to seek resolution of matters (especially collective industrial matters) by conciliation in preference to and in advance of arbitration;

4. The statutory objects of Part 2-4 of the FW Act and in particular section 171 concerning the facilitation of good faith bargaining and the making of agreements;

5. The terms of section 226 of the FW Act and in particular the likelihood that any arbitration will require factual matters to be established including the views and circumstances of employees, the employer and employee organisations. The issue of “appropriateness” and the public interest also arise. These may not be simply or swiftly dealt with if the matter continues to be contested. For example, in considering the views of employees the Commission may need to be satisfied that views formed were based on a sufficiently well informed and accurate body of knowledge;

6. That there has been a recent history of bargaining at the Lobethal site whereby (in 2016) a negotiated replacement agreement was voted up by a majority of the workforce but not approved by the Commission on the ground that it did not meet the BOOT test and, further (in 2018) whereby a proposed agreement was voted down by a majority of the workforce.

[15] I consider it appropriate for a reasonable time to be provided for both the re-commencement of bargaining at the workplace level and also for Commission conciliation of the application in advance of arbitration.

[16] I do not consider that putting in place arrangements for arbitration of the application in advance of both workplace bargaining and Commission conciliation to be desirable. However, I also do not consider the employer’s proposal that the application simply be adjourned for at least six months to allow bargaining to occur to be reasonable. I consider that a process of workplace bargaining and Commission facilitated conciliation can and should operate in parallel, at least for the time being.

[17] I will provide a period of at least two months for that parallel process. Subject to any other development, I will review the status of both bargaining and conciliation at or around 31 July 2018 and invite the parties to express views at that time as to whether the application should be listed for arbitration, and (if so) on what basis, or whether further time for bargaining or conciliation is desirable.

[18] The Commission will make itself available to conduct two conciliation conferences on the application, at or around the end of June 2018 and at or around the end of July 2018 respectively. At those conferences I will invite the parties to report back to me on the status of bargaining. I will also invite the parties to inform me, at least in a preliminary manner, of the relative effect on the employer and on employees of wages and conditions being regulated by the modern award in contrast to the existing or a proposed enterprise agreement.

[19] The Commission will also make itself available to conduct an inspection of the Lobethal site in July 2018 should that be considered of assistance to conciliation of the application.

[20] In making this decision I consider it desirable that further attempts are made by the employer and bargaining representatives of employees at the workplace level to bargain in good faith with a view to settling future wages and conditions of work at the Lobethal abattoir on a collective basis by agreement, in accordance with the provisions of the FW Act.

[21] I consider it undesirable for pre-emptive arbitration by the Commission if good faith bargaining is to resume, as I consider it should. Unless it cannot be reasonably avoided, arbitrated Commission intervention could unduly affect the status of existing collective wages and conditions and if conducted in parallel to workplace bargaining could detract from the statutory objectives in Part 2-4 of the FW Act. There is of course a practical limit to such a course; hence the review of status which I will conduct at the two month mark.

[22] I issue directions in accordance with this decision. The matter is re-listed for a further procedural hearing at 2.30pm (ACST) on 4 June 2018.

DEPUTY PRESIDENT

Appearances:

K. Rogers and S. Anderson, for the Applicant

C. Gardner, with permission, M. Young, D. McKay, and L. Yardley for Lobethal Abattoirs Pty Limited

Hearing details:

2018.

Adelaide; by telephone

31 May.

Printed by authority of the Commonwealth Government Printer

<AC323986  PR607660>

 1   Directions 18 May 2018, Deputy President Anderson