National Union of Workers v Nestle Australia Ltd
[2012] FWA 2813
•19 APRIL 2012
Note: An appeal pursuant to s.604 (C2012/3714) was lodged against this decision - refer to Full Bench decision dated 22 October 2012 [[2012] FWAFB 8190] for result of appeal.
[2012] FWA 2813 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Union of Workers
v
Nestle Australia Ltd
(C2011/5906)
Food, beverages and tobacco manufacturing industry | |
COMMISSIONER LEE | MELBOURNE, 19 APRIL 2012 |
Alleged dispute concerning incorrect grading of employees..
[1] This matter involves an application made by the National Union of Workers (NUW) to refer a dispute pursuant to the dispute settlement procedure contained in Clause 11 of the Nestle Peters Ice Cream/National Union of Workers Comprehensive Agreement 2011 (the Agreement). The respondent employer is Nestle Australia Ltd (Nestle).
[2] The dispute is concerned with whether employees who work in the Variable Rate Tunnel (VRT) of the Nestle Peters Ice Cream factory, located in Mulgrave, Victoria, are entitled to be classified as “Shrink Wrapper/Forklift Driver” and receive the corresponding rate of pay under the terms of the Agreement.
[3] It has been agreed between the parties that FWA is being asked to determine the following question:
“Whether the Shrink Wrapper/Fork Lift Driver classification and pay rate should apply to any employees who work in the VRT section of the factory.”
The background to the arbitration.
[4] This matter was subject to conciliation before me on 26 September 2011 and 28 November 2011. Those conferences, as well as the further talks I requested that the parties hold, failed to settle the dispute.
[5] Accordingly, as conciliation had failed to resolve the matter, I indicated to the parties that the dispute would need to be determined through arbitration before Fair Work Australia, pursuant to clause 11.6(b) of the Agreement. Representatives of the NUW and Nestle Australia stated to me in conference that they agreed with this course of action and had no objection to the arbitration being conducted before me.
[6] On 29 November 2011, I issued Statement and Directions outlining timetabling for the arbitration. The Statement and Directions outlined that if either party wished to raise any objection with the outlined process, to do so by close of business 1 December 2011. No objection was received by this date.
[7] In addition to outlining the process for written submissions, the Statement and Directions advised that I would undertake an inspection of the relevant areas of the Nestle factory in Mulgrave. I undertook that inspection on 13 January 2012, with representatives from Nestle and the NUW in attendance.
[8] The matter was listed for arbitration before me on 13, 14 and 15 March 2012. Prior to the hearing both parties contacted Chambers regarding availability of counsel and witnesses, and advised that the matter would only require one day.
[9] Accordingly the matter was heard before me on 14 March 2012. Mr A Portelli appeared for the NUW and Mr P Wheelahan of counsel appeared for Nestle. Evidence for the NUW was provided by Mr K McShane (VRT operator). Evidence for Nestle was provided by Mr C Taylor (Employee Relations Manager - Victoria), Mr S Sekulovski (Mulgrave Peters Ice Cream Factory Line Manager - Groceries and VRT) and Mr J Zammit (Former Mulgrave Peters Ice Cream Factory Payroll Manager, 1994-2003).
THE LAW
Does FWA have jurisdiction to arbitrate the dispute?
[10] Section 739 of the Fair Work Act2009 (the Act) allows Fair Work Australia to deal with a dispute if a term referred to in s.738 requires or allows Fair Work Australia to deal with a dispute. The relevant sections of the Act read as follows:
“Subdivision B—Dealing with disputes
Section 738 Application of this Division
739 This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
Section 739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.”
[11] The Agreement has such a procedure at Clause 11. Clause 11.6 provides as follows:
“11.6 Fair Work Australia may deal with the dispute in 2 stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.”
[12] This dispute arises from the operation of the Agreement and as outlined above, neither party has objected to Fair Work Australia arbitrating the matter in accordance with Clause 11.6. It is clear that Fair Work Australia is able to arbitrate and make a determination that is binding on the parties.
What are the legal principles to be applied?
[13] The principles that apply to the interpretation of industrial instruments have been well established.
[14] The main principles governing the construction of industrial agreements are well set out and discussed in the 2008 decision of Vice President Lawler in Watson & Ors v ACT Department of Disability Housing and Community Services. 1 The consideration of the relevant principles is summarised by His Honour as follows:
“In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”[Footnotes removed] 2
[15] In their outline of submissions 3, the NUW referred me to what was described as a helpful summary of the legal principles relating to the interpretation of agreements in the decision of Deputy President Ives in The Australian Workers’ Union v Visy Board Pty Ltd T/A Visy Specialties.4 Deputy President Ives summarised the relevant principles as follows:
“Among the general principles to be followed in the interpretation of awards and certified agreements are these:
(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning;
(b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise;
(c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole and in the context of the clause/section in which it falls;
(d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean;
(e) the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependant upon the existence of ambiguity in the industrial instrument.” [Footnotes removed] 5
[16] Nestle did not suggest an alternative approach to the above principles being adopted as the basis for interpreting the relevant terms of the Agreement.
[17] The principles adopted by Deputy President Ives are consistent with the authorities and associated principles as discussed by Vice President Lawler in Watson & Ors v ACT Department of Disability Housing and Community Services. I shall apply these principles as relevant in the consideration that follows.
A summary of the key issues and position of the parties.
[18] Clause 16 of the Agreement is entitled “Classifications and Wage Rates”. Clause 16.1 of the Agreement states: “Wages shall be in accordance with the table in Appendix 1”.
[19] Appendix 1 is not attached to the Agreement published on the Fair Work Australia website. Mr C Taylor provided evidence that the appendix was submitted with the Agreement at lodgement with Fair Work Australia 6 but “...FWA for whatever reason did not attach it to the published version”.7 In any case it is agreed between the parties that Appendix 1 forms part of the Agreement.
[20] Appendix 1 is headed “Wages and Allowance Tables”. In the far left side column of the table, there is a row with a heading “CLASSIFICATION”. The rows that follow underneath list what might presumably be called classifications, examples of which are “Packer”, “Box Form Operator”, “Cleaner” and so on. The adjoining column gives these classifications a “RATE CODE”, so the “Packer” is given “FO2”, “Box Form Operator” is given “FO3”, “Cleaner” is given “FO4”. Moving right, the next columns are headed “Wages - Hourly Rate ($)”, and provide percentage increases across a number of effective dates for each classification.
[21] There is a blank row just past the middle of the table, followed in the next row by a heading that reads “BULK WAREHOUSE*”. Under this row follows a number of other classifications such as “Floorhand - standard”, “Fork Lift Driver - standard” and the classification in dispute, “Shrink Wrapper / Fork Lift Driver”. The “RATE CODE” for these classifications are what I will describe as B codes - “Floorhand - standard” is given “BO2”, “Fork Lift Driver - standard” is given “BO6” and “Shrink Wrapper / Fork Lift Driver” is given “BO5”. Moving right across the columns, these classifications are also provided percentage increases across a number of effective dates.
[22] It is common ground between the parties that there is no supporting documentation, outside of Appendix 1, which aids decision makers in determining which is the correct classification for employees under the Agreement. That is, the title of the classification in Appendix 1 is all that is available within the terms of the Agreement to determine what the correct classification for an employee might be.
[23] The NUW submits that I should determine that the “Shrink Wrapper / Fork Lift Driver” classification and pay rate, should apply to any employee who works in the VRT section of the factory. This is on the basis that employees engaged in the VRT both shrink wrap and drive forklifts. They submit that the relevant legal principles, on balance, favour its application being granted.
[24] Nestle submits that the “Shrink Wrapper / Fork Lift Driver” classification is redundant, was meant to operate for specified employees at a moment in time in the old, now demolished, factory environment, was only maintained in Appendix 1 as it continued to apply to one employee for historical reasons and should not apply to employees in the VRT.
The Evidence
[25] A great deal of evidence was provided about the history of the physical structures at the Nestle Peters Ice Cream site in Mulgrave. As outlined above, I conducted an inspection of the premises on 13 January 2012 and benefited from being able to see the relevant areas for myself, guided largely by Mr P Miller (Nestle Factory Manager) and Mr McShane. During the hearing, there was also a presentation provided by Mr Sekulovski as to how the site has changed over time. The evidence as to the changes in the physical structure of the Peters Factory at Mulgrave are essentially not in dispute.
[26] Prior to the new factory at Mulgrave being built in the late 1990’s, there was no VRT area. There was what was known as the F.E.S area (a hardening freezer). The F.E.S area was part of the production area and there existed a palletiser/shrink wrap area which was designated part of the warehouse (this area was known as the Green Room). The F.E.S Hardening Freezer area was a similar type of ice cream hardening area as the current VRT area. 8
[27] The old factory and bulk warehouse at the Mulgrave site are now demolished. All ice cream production and storage is now undertaken within the new bulk warehouse and factory.
[28] The history of the changes to the factory layout are relevant to a consideration of the intent of the parties in terms of the classification that is in dispute. On this point the views of the parties differ.
[29] Nestle submits that properly construed, the descriptor “Shrink Wrapper / Fork Lift Driver” is not and cannot be a classification per se. 9 This is because the B Rate Codes contained in Appendix 1 are for the BULK WAREHOUSE and the old bulk warehouse no longer exists. The evidence of Mr Sekulovski supports this contention. Mr Sekulovski states:
“13. The position of “Shrink wrapper / Fork Lift driver” (B05) listed in Appendix 1 of the Enterprise Agreement no longer exists. It used to apply in the old factory/warehouse to employees that worked in the Bulk Warehouse as Fork Lift Drivers (B06) and also worked in the Shrink Wrap area (B03).”
[30] This position however, does not appear to accord with current practice. Employees in the VRT are currently paid as either “Shrink Wrap - standard + cold money” (B13) or “Fork Lift Driver - standard” (BO6) rates. Mr Taylor in his evidence is unable to explain why the B13 rate and the B06 rate are being paid, conceding in his statement;
“f. I am unable to establish why some employees in the VRT area are paid the “Shrink Wrap - standard + cold money” (B13) rate and some are paid the “Fork Lift Driver - standard” (B06) rate. All employees employed in the VRT area prior to 2006 were paid the B13 rate (except Kevin McShane and Warrick Hardy who are paid the B10 “Checker” rate). From 2006 onwards, some employees that moved into the VRT area were employed on the B06 rate. These newer employees predominately work in the Shrink Wrap room of the VRT area.”
[31] Mr. McShane confirms that it is his understanding that employees in the VRT are paid the B13 rate and the BO6 rate but adds in the B10 (“Checker”) rate to the rates paid in the VRT.
[32] Nestle submit that the “Shrink wrapper / Fork Lift driver” (B05) rate is redundant because it is one of the B rate codes for the bulk warehouse which is a structure which no longer exists. However, the fact that current employees of the VRT are employed under the various B rate codes would seem at the very least to be inconsistent with that position. Indeed being employed in the VRT is not a barrier to being employed under the Bulk Warehouse B code classifications. The heading Bulk Warehouse, as it appears in Appendix 1, accounts for little in the way that the Agreement is applied.
[33] There is some common ground between the parties as to the genesis of the “Shrink Wrapper / Fork Lift Driver” (B05) classification. The evidence of Mr. Zammit was that the “Shrink Wrapper / Fork Lift Driver” (B05) rate was established to apply to employees working as fork lift drivers in the bulk warehouse who agreed to take on shrink wrap duties back in the mid 1990’s. Mr Zammit explained as follows;
“4. In the mid 1990’s, due to resignations and retirements, there were no regular employees working in the Shrink Wrap area of the old factory. Instead of replacing them, Nestle asked the Fork Lift Drivers in the Warehouse to perform a joint role of Shrink Wrap Operator and Fork Lift Driver. Nestle offered these employees a higher pay rate to reflect the dual role. As a result of this change, I created a new pay code in the payroll system of “B05” and called it “Shrink Wrapper / Fork Lift Driver”. The rate was only ever intended to apply when a “warehouse” fork lift driver performed work in the Shrink Wrap area of the old factory which was not in the warehouse but an adjacent building which is now demolished. It did not apply when Shrink Wrap operators in the old factory (who were not based in the warehouse) used a forklift in the Shrink Wrap area.” 10
[34] According to Mr. Taylor, the two roles that were combined to form the “Shrink Wrapper / Fork Lift driver” (B05) rate were split again when the new factory was built in 1999. Mr Taylor’s evidence is that the shrink wrap role is now part of the VRT area and the forklift role is now part of the bulk warehouse. 11 It was clear to me from the inspection undertaken on 13 January 2012 that the two areas are separated by a large wall.
[35] Mr. McShane, who has been employed at the Mulgrave site since May 1992, in his statement provides the following information;
“4. Historically, there were separate forklift roles and shrink wrapper roles at the site. The forklift role consisted of the loading and unloading of trucks, while the shrink wrapper role consisted of wrapping and indentifying products and recording quantities produced.
5. In or around 1996, I recall the separate roles of shrink wrapper and forklift driver being combined into one role.
6. Two employees... performed this joint role and received the shrink wrapper/forklift driver (B05) rate.”
[36] In evidence on cross examination Mr McShane answered the following questions from counsel;
“And in the old factory, this combined role of work in the bulk warehouse forklift and in the manual shrink wrap, that was a combined role that certain persons performed, correct?---Correct
That combined role that I have just described to you doesn’t exist in the new factory?---No.” 12
[37] So, there is common ground as to the genesis of the classification. There is also common ground that the original combined role doesn’t exist. What remains in dispute is whether or not there was an intent that the “Shrink Wrapper / Fork Lift Driver” (B05) classification was to apply only to those employees performing the combined role as it was in the old factory and to no others in the future who are performing shrink wrap/forklift duties in the VRT area.
[38] Relevant to this point, Mr Zammit stated that;
“The “Shrink Wrapper / Fork Lift Driver” (B05) role did not exist in the new factory. The rate was retained in the payroll system because there was one Warehouse operator who was still being paid at that rate (but no longer performing shrink wrap and warehouse work...” 13
[39] However, the evidence of Mr. Zammit was vague as to whose intention it was that the “Shrink Wrapper / Fork Lift Driver” rate would only apply in the old factory environment, stating under cross examination the following;
“...Whose intention was it that the B05 rate should only apply when a warehouse forklift driver performed the work in the shrink wrap area of the old factory?---I think that was a company decision.
When you say company, who do you mean by the company?---That would have been a discussion held between the HR manager at the time, and the factory manager, and then the general manager of ice cream.
Did those individuals specifically advise you, Mr Zammit, that the intention of this rate was that it apply only when a warehouse forklift driver performed work in the shrink wrap area of that old factory?---My discussions were primarily with the HR manager. I rarely spoke with the general manager, or even the factory manager, at that point in specifics. And so in dealing with the HR manager we would often have discussions about progress of EBA discussions and proposals. So in relation to a specific directive, I think we did have that discussion.” 14
[40] Mr McShane gave evidence that he did not recall the BO5 rate being no longer relevant;
“26. Before this dispute arose last year, I had never heard of this rate been described as historical.
27. There has never been to my knowledge any agreement, undertaking or understanding that the shrink wrapper/forklift driver rate would cease being used or is “redundant”.” 15
[41] It is common ground that one employee is still receiving the BO5 rate. It is for this reason Nestle submits, that the BO5 rate was maintained in Appendix 1 and for that reason only.
[42] Mr Taylor made reference to other classifications in Appendix 1 which relate to positions that no longer exist. Mr Taylor advised that these classifications and pay rates now relate to individual employees rather than a position in the factory/warehouse. Aside from the “Shrink Wrapper/Fork Lift Driver” (BO5) classification, the other example given is the F15 rate code, classification “Quality Control Operator (historical)”. 16 The fact that the word “historical” is attached to this classification is significant. It suggests that the framers of the document had a clear intent that the F15 rate would not be used in the future. The fact that the same word is not attached to the BO5 classification may indicate that the framers did not hold the same intent for BO5.
[43] It was Mr Taylor’s evidence that he did not know whether there was any discussion with employees or the union about the clause being redundant stating;
“I don’t know what was discussed in previous enterprise agreement negotiations. My knowledge is limited to the most recent one in 2011 where there was no discussion by either the union employees or company about appendix 1 and the titles and pay codes in that appendix.” 17
[44] The evidence of Mr. McShane is significant in the context of the dispute. There is a question as to whether Mr. McShane did or did not know about the BO5 rate prior to the most recent enterprise agreement in 2011. Mr. Taylor in evidence claims that the evidence of Mr. McShane is inconsistent on the point. 18 Mr. McShane’s evidence on the point was clear under cross examination at hearing;
“It is also the case, isn’t it, that this appendix 1 and these codes, you knew prior to voting on this agreement that these had been operating for over a decade at Nestle, hadn’t they?---Apparently, but I wasn’t aware of it. I say the first time I came across them was in the 2011 agreement. But apparently they were available but I have no recollection of them.” 19
[45] There is an opinion from Mr. Taylor that it would be unusual for the group of employees with the common surname “Hardy” not to have shared the information. 20 However, there is no evidence that directly contradicts the evidence of Mr. McShane. It is also noteworthy that Appendix 1 was not attached to the predecessor agreements for approximately 6 years.21
[46] In the circumstances, it is certainly unusual but conceivable that Mr. McShane did not know about the existence of the BO5 rate until around the time of the making of the Agreeement in 2011. In the absence of any clear evidence to the contrary, I accept that he did not.
Consideration
[47] The classification “Shrink Wrapper/Fork Lift Driver” is on the face of it clearly capable of suggesting it applies to an employee who performs both functions. In the absence of any other material within the enterprise agreement to provide guidance it seems clear that it should be applied to any employee who is engaged in shrink wrapping and fork lift driving.
[48] The evidence of Mr. McShane is that “[e]ach employee has a forklift licence and needs to be able to use it. Each VRT employee also can, and does shrink wrap.”. 22 Mr. Sekulovski agrees that all VRT employees have a forklift licence.23
[49] There is a clear contest over the extent to which the employees in question use a forklift. However it seems clear on the evidence that VRT employees do all use a forklift to some extent. An important qualification to this is that VRT employees do not use a forklift when working in the VRT control room. 24
[50] There is evidence that VRT employees use forklifts to some extent related to the palletiser room. Mr. Portelli for the NUW conceded in his closing submissions that the forklifts are also used, “...in the area adjacent to the palletiser room outside the palletiser room.”. 25 I do not believe that the forklift work outside the palletiser room can be properly characterised as forming part of the work of employees in the VRT.
[51] As to the wrapping room, there is no doubt that when VRT employees are rostered on to work in the wrapping room that they can and are required to shrink wrap and drive forklifts. The extent to which they are required to drive forklifts is disputed. The fact that they do so is not.
[52] In closing submissions, Counsel for Nestle sought to cast doubt on whether the classifications in Appendix 1 are in fact classifications.
“The reality is that [the classifications in Appendix 1] have lost much of their meaning, if there was ever any, and they really are just pay codes with some titles. And the custom and practice has been known for over a decade. And in the most recent agreement classifications, and I put it to you these aren’t accepted as classifications within the meaning of the agreement at clause 16. They are going to be reviewed. It is not surprising that that’s in the agreement because we are here because these no longer reflect. And you can’t even discern from Mr Taylor’s evidence what do they all mean. He doesn’t know what they all mean. Nobody does. So the flip side of that is if we don’t know what it means, we can’t then pick one out because it has the word forklift and try and seek orders for retrospective application of a higher rate of pay for a dozen years, putting aside all the jurisdictional problems with making such an order.” 26
[53] The position of Nestle then is that the employee relations manager does not know what they all mean. However against that background, Nestle claim to be absolutely clear as to what the BO5 “Shrink Wrapper / Fork Lift Driver” rate means and to whom it does not apply.
The conclusion
[54] There is no doubt that Appendix 1 is far from being what one might consider an efficient and reliable guide to determining the appropriate classifications at Nestle. However, the parties have agreed to it as a term of the Agreement that they have submitted and had approved by Fair Work Australia. It is the means by which employees at the Peters Ice Cream Factory are classified and their appropriate pay rate determined.
[55] The classification “Shrink Wrapper / Fork Lift Driver” is, on the face of it, “not ambiguous or susceptible of more than one meaning”. 27 The evidence is clear that the VRT employees are undertaking both activities when rostered to work in the wrapping room.
[56] However, one should not take a narrow and pedantic approach to the interpretation. I have sought to establish what was in the minds of the framers of the document. As is clear from the analysis of the evidence, what was in their minds has not been clearly established. Indeed the above concluding submission of Nestle is that no one knows what it all means. In the circumstances I am “not free to give effect to some anteriorly derived notion of what would be fair and just.”. 28 As the words are ordinary or well understood they are “...in general to be accorded their ordinary or usual meaning”.29
[57] Notwithstanding the lack of ambiguity as to the meaning of the term, I have considered the history of the BO5 rate and that history within the full context of the Agreement. It is clear that the genesis of the classification was in the old factory. However I am not satisfied that there was a mutual intention to end the application of the BO5 rate at the old factory.
[58] Considering the Agreement as a whole, the operation of Clause 16 “Classification and Wage rates”, combined with Appendix 1, leads me to conclude that the “Shrink Wrapper / Fork Lift Driver” (BO5) classification is capable of being applied to the employees of the VRT.
[59] I have been asked, pursuant to clause 11.6, to determine whether the “Shrink Wrapper / Fork Lift Driver” classification and pay rate should apply to any employees who work in the VRT section of the factory. I determine that the “Shrink Wrapper / Fork Lift Driver” classification does apply to VRT employees, on the days they work in the wrapping room.
[60] As this is a determination of a dispute as to the application of the Nestle Peters Ice Cream/National Union of Workers Comprehensive Agreement 2011, it has effect for the period of operation of that Agreement.
[61] As such, this determination is operative from 5 August 2011 (the date of operation of the Agreement).
[62] In accordance with clause 11.6 I make the above determination and note that pursuant to that clause, this determination is binding on the parties.
COMMISSIONER
Appearances:
P Wheelahan of Counsel for Nestle Australia Ltd
A Portelli for the National Union of Workers
Hearing details:
2012
Melbourne:
March 14
1 [2008] AIRC 291
2 Watson & Ors v ACT Department of Disability Housing and Community Services[2008] AIRC 291, [15]
3 Applicant’s Outline of Submissions, filed 23 January 2012, [39]
4 PR963418
5 The Australian Workers’ Union v Visy Board Pty Ltd T/A Visy Specialties PR963418, [12]
6 Witness Statement of Craig Taylor, tendered 14 March 2012, [11]
7 PN244
8 Witness Statement of Steven Sekulovski, tendered 14 March 2012, [3] - [5]
9 Respondent’s Submissions, filed 5 March 2012, [6] - [7]
10 Witness Statement of Jeff Zammit, tendered 14 March 2012, [4]
11 Witness Statement of Craig Taylor, tendered 14 March 2012, [15]
12 PN128-129
13 Witness Statement of Jeff Zammit, tendered 14 March 2012, [6]
14 PN428-430
15 Witness Statement of Kevin McShane, tendered 14 March 2012, [26]-[27]
16 Witness Statement of Craig Taylor, tendered 14 March 2012, [13]
17 PN211
18 Witness Statement of Craig Taylor, tendered 14 March 2012, [17] and PN230
19 PN 85
20 Witness Statement of Craig Taylor, tendered 14 March 2012, [18]
21 PN244
22 Witness Statement of Kevin McShane, tendered 14 March 2012, [15]
23 PN325
24 Witness Statement of Steven Sekulovski, tendered 14 March 2012, [5]
25 PN469
26 PN496
27 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR
28 Kucks v CSR Ltd (1996) 66 IR 182
29 Kucks v CSR Ltd (1996) 66 IR 182
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