Teys Australia Beenleigh Pty Ltd
[2013] FWC 7804
•4 OCTOBER 2013
| [2013] FWC 7804 [Note: An appeal pursuant to s.604 (C2013/6376) was lodged against this decision - refer to Full Bench decision dated 4 March 2014 [[2014] FWCFB 1313] for result of appeal.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Teys Australia Beenleigh Pty Ltd
(AG2013/8000)
TEYS AUSTRALIA BEENLEIGH PTY LTD PRODUCTION DEPARTMENTS ENTERPRISE AGREEMENT 2013
| DEPUTY PRESIDENT ASBURY | BRISBANE, 4 OCTOBER 2013 |
Application for approval of the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013.
BACKGROUND
[1] This decision concerns an application by Teys Australia Beenleigh Pty Ltd (Teys) under s.185 of the Fair Work Act 2009 (the Act) for approval of the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement (the Agreement). The Australian Meat Industry Employees Union (AMIEU) initially objected to the approval of the Agreement on the grounds that it was not genuinely agreed by employees and that it does not pass the Better Off Overall Test (BOOT).
[2] Following a conciliation conference conducted by Commissioner Riordan, agreement was reached between the parties on undertakings to address the issues associated with whether the Agreement passes the BOOT. The issues related to whether the Agreement was genuinely agreed to by employees were not resolved and were the subject of a hearing on 25 September 2013.
[3] Following that hearing, I issued a Decision approving the Agreement on 27 September 2013 1. In approving the Agreement, I decided that the requirements of the Act necessary for approval had been met, and in particular, that employees had genuinely agreed to the Agreement. I set out below my reasons for deciding to approve the Agreement.
ISSUES IN DISPUTE
[4] The background to the dispute can be briefly stated. The negotiations for the Agreement have been protracted. In July 2013, Teys decided to put the Agreement to a ballot of employees, notwithstanding the opposition of the AMIEU and some members who were bargaining representatives to the approval of the Agreement. A ballot was conducted by the Australian Electoral Commission on 1 and 2 August 2013. A declaration of results issued by the AEC on 5 August 2013 states that:
● The total amount of eligible voters was 792
● There were 711 ballot papers issued (including two spoilt/duplicate ballot papers)
● 359 employees voted yes
● 343 employees voted no
● 7 employees cast an informal vote
[5] The AMIEU in its evidence and submissions to the Commission asserted that there were irregularities associated with the approval of the Agreement as follows:
● ineligible employees were included in roll to vote for the enterprise agreement;
● employees were not provided with the requisite access pursuant to s.180(4) of the Act because they were engaged after the commencement of the access period; and
● new employees did not have the terms of the agreement explained to them in accordance with the requirements of s.180(5) of the Act.
LEGISLATION
[6] Section 181(1) of the Act provides:
“(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.”
[7] Section 182(1) of the Act further provides that:
“(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
[8] Section 186(1) of the Act establishes a basic rule that if an application for approval of an enterprise Agreement is made under s.185, the Commission must approve the Agreement if the requirements set out in s.186 are met. Those requirements include that set out in s.186(2)(b) as follows:
“(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”
[9] The note to s.186(2)(b) refers to s. 188, which provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[10] By virtue of s.53(1) of the Act an enterprise agreement covers an employee or an employer if the agreement is expressed to cover, (however described) the employee or the employer. Section 265A provides:
“256A How employees, employers and employee organisations are to be described
(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.”
EVIDENCE
[11] Evidence in support of the application to approve the Agreement was given by:
- Mr D. Archie, Human Resources Manager 3
● Mr J. Salter, General Manager Workplace and External Relations 2
● Ms C. Watt-Dunling, Packing Leading Hand 4
● Mr P. Carle, Trainee quality assurance/quality control supervisor 5
● Mr M. Garth, Boner 6
● Mr S. Gee, General Manager Operations 7
[12] Evidence in opposition to the approval was given by:
● Mr B. Crawford, Branch Secretary of the AMIEU 8
● Mr K. Prange, Meat worker 9
● Mr R. Leigh, Meat worker 10
● Mr D. Ludwigson, Boner 11
● Mr R. Stagg, Slaughterer and Authorised Officer for post-mortem inspection 12
[13] The AMIEU contends that Teys allowed some 19 persons employed in administrative, clerical, laboratory, managerial and supervisory roles to vote in the ballot, in circumstances where the proposed agreement does not and will not cover such employees. Further, the AMIEU contends that the participation of such persons in the ballot could have changed the outcome and has been brought sharply into focus by the narrow margin by which the Agreement was approved.
[14] Clause 1.3 of the Agreement deals with coverage and scope and is in the following terms:
“This Agreement shall apply to all Employees employed by Teys Australia Beenleigh Pty Ltd who are engaged in stock receival and preparation, production and cleaning operations at the Beenleigh plant whose work is covered by the classifications contained in this Agreement.
This Agreement does not seek to, nor does it cover, Employees engaged in repair and maintenance, administrative and clerical, laboratory, first aid, managerial or supervisory work.”
[15] It is not in dispute that Teys employs persons referred to as Trainee Supervisors, and that those persons were included on the roll of eligible voters and were eligible to receive ballot papers to vote for the approval of the Agreement. It is also not in dispute that some of the Trainee Supervisors voted in the ballot for approval of the Agreement and that all Trainee Supervisors may have voted. Accordingly, it is the case that if Trainee Supervisors were not eligible to vote in the ballot for the approval of the Agreement, then the outcome of the ballot may have been different.
[16] The evidence establishes that Teys has a formal program conducted over a period of around 18 months, involving on the job training being provided to production employees who are identified as having the potential to be engaged as supervisors. Those employees are designated as Trainee Supervisors, and undertake on the job training under the supervision of Staff Supervisors.
[17] A relatively lengthy training period is required so that the Trainee Supervisors can adjust to the requirements of carrying out supervisory tasks and the workforce adapts to seeing former production workers in a supervisory role. Teys has a policy of establishing internal career paths, and promoting production workers to supervisory positions through such programs. There are similar programs in place for production workers to enable them to increase their skills and obtain classification at higher levels under the Agreement.
[18] At the time the ballot for approval of the Agreement was conducted, there were 17 employees performing the role of Trainee Supervisor.
[19] Staff Supervisors are employed under a common law contract of employment, by a different entity to that which employs production employees - Teys Management Pty Ltd rather than Teys Australia Beenleigh Pty Ltd which employs production employees. The Staff Supervisors are also paid under a different fortnightly payroll system. Following their training period, if Trainee Supervisors are considered to be suitable for a staff appointment, they are offered a new contract of employment with that entity. Witnesses for Teys also maintain that:
● Trainee Supervisors regularly undertake a full range of production work and cut out employees performing production tasks when they need to take breaks or fill in during periods when production employees are absent from the workplace.
● Teys has the right to direct Trainee Supervisors to undertake production tasks at any time and to remove them from the training program.
● Trainee Supervisors are informed at the commencement of their training that they will remain in their substantive classifications under the Agreement are paid as a minimum rates under the Agreement pertaining to those classifications and maintain all of the rights associated with continuity of service under the Agreement, including preference with respect to rosters and rights in relation to being stood down when this is necessary.
● Supervisory tasks undertaken by Trainee Supervisors are performed under the direction of Staff Supervisors and Trainee Supervisors do not have traditional supervisor accountability to give formal directions or initiate disciplinary processes.
● Trainee Supervisors have been included in all of the ballots for previous agreements and have been covered by their terms, with the knowledge and acceptance of the AMIEU.
● Trainee Supervisors participated in an earlier ballot for the Agreement in February 2012 and in a ballot authorising the AMIEU to make an application to the Commission for a protected action ballot order.
● Some trainee supervisors participated in the protected industrial action taken following the ballot.
[20] Some of the Trainee Supervisors are paid in excess of the minimum rates they are entitled to under the Agreement. Where employees who go into the Trainee Supervisors program are classified at the higher levels in the classification structure, they maintain their classification rate. Where they are paid at lower levels, they receive a higher rate than that to which they are entitled. The evidence is that these employees are paid at higher rates to provide an incentive for them to participate in the Trainee Supervisors program.
[21] Two employees who are presently working as Trainee Supervisors gave evidence to the effect that they consider themselves covered by the Agreement and its predecessors and would be concerned to find that this is not the case. Further, those employees indicated their understanding that they are required to assist with production tasks as directed, and that they could be directed to perform production tasks on a full time basis.
[22] It is apparent from the evidence that some employees are engaged in the role of “Tutor” and are involved in providing on the job training to production workers. These persons are considered to be covered by the Agreement and its predecessors, notwithstanding that it does not contain an allowance or classification for Tutors. Mr Ludwigson who gave evidence on behalf of the AMIEU is a Tutor, and said that he is covered by the Agreement. The role of a Tutor includes teaching production workers how to undertake tasks, checking that they are performing those tasks properly and directing production workers in relation to these matters. Mr Ludwigson also said in cross-examination that a Trainee Supervisor who had previously been a Tutor in slicing, was covered by the Agreement while he was working in both capacities.
[23] There is no leading hand allowance found in the Agreement or its predecessors and notwithstanding this some employees are paid as leading hands. Mr Wilcox is paid at a boner’s rate although his duties are primarily those of a slicer.
[24] There was evidence from witnesses for the AMIEU to the effect that Trainee Supervisors and Supervisors are viewed by employees as performing the same role and are required to be treated as such. According to the witnesses for the AMIEU Trainee Supervisors are responsible for areas such as boning, slicing, packing and quality assurance. Trainee Supervisors wear blue “bump caps” and carry two way radios, as do Staff Supervisors. They also carry Supervisors’ books for the purpose of recording unsatisfactory work on the part of employees.
[25] All Supervisors including Trainee Supervisors have authority to direct production employees in relation to how to perform their work and to give warnings in relation to unsatisfactory work and other disciplinary matters. Mr Stagg gave evidence of being told by a Staff Supervisor that a Trainee Supervisor who was attempting to discipline a production worker is “one of us” because the Trainee Supervisor was wearing a blue bump hat. Under cross-examination Mr Stagg agreed that the employee who was being disciplined “pushed back” in relation to the right of the Trainee Supervisor to raise performance issues, and a Staff Supervisor then became involved in the disciplinary process.
[26] Mr Stagg said under cross-examination that it is his understanding that when employees are appointed to a staff role they move away from the Agreement. Mr Stagg was interviewed in relation to a Trainee Supervisor’s role and said that if he had been offered that role he would have accepted. Mr Stagg also said that if he accepted the role of Trainee Supervisor, he believed that he would have been covered by the Agreement until such time as he was “on staff”.
[27] AMIEU witnesses also gave evidence in relation to the following employees voting in the ballot for approval of the Agreement:
● An employee acting as a translator assisting Vietnamese speaking employees to obtain visas, who has a desk and office space in the Administration building;
● An employee acting in a temporary HR role;
● A Laboratory Technician who has been performing the role for 12 months;
● Ms Suzanne Connell, a Workplace Health and Safety Officer;
● Persons who are said to have positions in the laboratory; and
● New starters who stated that they had received a copy of the Agreement two days before they voted.
[28] Witnesses for Teys gave evidence about these employees. Mr Archie said that both the Vietnamese Translator and the employee acting in the temporary HR role are on temporary assignments to the HR department. The employee with Vietnamese language skills is assisting employees to obtain visas. The other employee is acting in the role of Recruitment Officer. Both employees have retained their substantive classification under the Agreement and have returned or will shortly to return that role.
[29] Mr Gee said that Ms Connell is classified as a Cleaner/Leading Hand and is training to work as a Workplace Health and Safety Officer, but retains her current classification while being trained. At any point, Ms Connell can be directed to work in her substantive classification, in contrast with the position with respect to Salaried Workplace Health and Safety Officers. This is said to be the same situation as that applicable to Trainee Supervisors. Mr Gee also gave evidence about an employee who takes swabs and samples of products for testing in the Laboratory but does not conduct that testing and said that Teys Australia Beenleigh Pty Ltd does not employ Laboratory Technicians.
[30] In relation to new starters voting in the ballot, Mr Archie gave evidence that three employees commenced employment on 26 July 2013 and were provided with a copy of the Agreement and the information that had been provided to other employees. None of these employees was from a non-English speaking background. The new employees were included in the list provided to the Australian Electoral Commission.
[31] Mr Crawford’s evidence was that since his involvement with enterprise bargaining at Teys Australia plants in 1997, there has never been a proposed agreement submitted to a ballot of employees without the endorsement of the plant negotiating committee and the Union. Because of this, agreements have been approved with healthy majorities, and there has never been a dispute about the entitlement of any employee to vote.
[32] Mr Crawford also said that he is not aware of any instance where “supervisory staff” voted on the approval of any enterprise agreement. Mr Crawford also asserted that there is a sizeable discrepancy in the information provided to the Commission by Mr Salter, about the number of employees covered by the Agreement compared to the information provided about its predecessor. Mr Crawford did not give oral evidence about this matter and it was not put to Mr Salter in cross-examination.
[33] In relation to the ballot, a number of witnesses for the AMIEU agreed in cross-examination that they were acting in the capacity of scrutineers in the ballot process, and at no point during that process raised any objection to persons voting who the AMIEU now assert are not eligible to vote. Those witnesses also agreed that if they had seen the owner of Teys, Mr Brad Teys attempt to cast a vote they would have raised an objection immediately.
[34] The witnesses for the AMIEU were also cross-examined about how they compiled the list of those employees the Union now asserts were not eligible to vote. Their evidence was that they held a meeting of AMIEU bargaining representatives after the ballot and developed a list of those said to be ineligible to vote for approval of the Agreement.
SUBMISSIONS
[35] In summary Teys submits that it has proposed an Agreement to cover employees engaged in production roles, including Trainee Supervisors. Those employees have been covered by earlier iterations of the Agreement and have voted in ballots previously without issue. The AMIEU does not raise any issue as to whether the group of employees covered by the Agreement has been fairly chosen or the scope of the Agreement. The argument is that as a matter of drafting, the Trainee Supervisors were not covered.
[36] There is evidence that Trainee Supervisors consider that they are covered and have been covered by previous iterations of the Agreement and it was the intention of Teys that they would be covered. Teys also points to the evidence of two witnesses for the AMIEU to the effect that performing the role of Trainee Supervisor does not remove employees from the coverage of the Agreement.
[37] Further, Teys submits that the evidence establishes that scrutineers on behalf of the Union watched Trainee Supervisors vote in the ballot without taking issue, and raised no objection until the ballot was declared and it became apparent that a majority of employees had voted to approve the Agreement.
[38] Teys relies on the principles established in Kucks v CSR that a narrow or pedantic approach to interpretations of industrial instruments should not be taken, and that their meaning should be considered in the context in which they operate, and so that inconvenience and injustice is avoided. This principle is also found in Short v Hercus and as in that case, the context in which the Agreement in the present case was developed includes numerous predecessor agreements which have covered Trainee Supervisors.
[39] If Trainee Supervisors are not covered by the Agreement, injustice will arise, and such employees have no protection as they would also not be covered by the Meat Industry Award 2010. It may also be the case that at the point when the majority of tasks performed by Trainee Supervisors are supervisory, that such employees are forcibly ejected from the coverage of the Agreement or reinjected if they cease to be Trainee Supervisors and return to full time production duties.
[40] Supervisory work as referred to in clause 1.3 of the Agreement, should be interpreted as a general phrase in the context of an environment in which other employees such as those undertaking the role of Tutor, and performing similar tasks, are covered by the Agreement and its predecessors.
[41] Reference was made to clause 4.3 of the Meat Industry Award 2010 which does not apply to employees engaged to undertake managerial duties and responsibilities at the level of foreman and above. This is said to be a bright line and to be relevant to the line between those covered by the Agreement in this case, and those who are not. Clause 1.3 of the Agreement is in virtually identical terms to other Teys Agreements and no issue has previously arisen.
[42] Reference was also made to the classification structure in the Agreement which is said to be non-prescriptive and to the specific provision in clause 3.4 of the Agreement which provides for rates of pay for employees undertaking training.
CONSIDERATION
[43] The approach generally adopted by the Commission to construction of industrial instruments can be summarised as follows:
● A term in an agreement must be read in context having regard to the agreement as a whole and the legislative background against which it was made; 13
● If the terms of an agreement are clear and unambiguous then the agreement must be interpreted in accordance with those terms. 14
● The nature of an agreement, the manner of its expression, the context in which it operates and the industrial purpose it serves combine to suggest that a meaning should be given that contributes to a sensible industrial outcome; 15
● A narrow pedantic approach to construction should not be taken given that agreements are drafted by persons of a practical bent concerned with expressing intention in ways likely to be understood in the context of the relevant industry or industrial relations environment in which they operate; 16
● Agreements are concerned with matters such as settling disputes present and future, ensuring fair and just treatment and promoting harmony in the workplace and should be construed in a way that operates fairly to both parties if such a construction is reasonably available; 17
● Meanings which avoid inconvenience or injustice may reasonably be strained for; 18
[44] Justice Burchett eloquently described the importance of context in Short v Hercus in the following terms:
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.” 19
CONCLUSIONS
[45] The eligibility of employees to vote in the ballot for the approval of the Agreement, depends on a construction of the Agreement with respect to employees who - as provided in s.181(1) and s.182(1) - will be covered by the Agreement.
[46] The AMIEU does not contend that the group of employees covered by the Agreement was not fairly chosen or that an enterprise agreement could not be made with a group of employees which includes Trainee Supervisors. Rather, the Union contends that the terms of the Agreement as voted on by employees, should be construed so as to exclude Trainee Supervisors, and a number of other employees who are performing tasks associated with workplace health and safety and assisting other employees for whom English is not their first language.
[47] The AMIEU essentially submits that the term “will” has a fixed intent and purpose. I do not accept that submission. In my view, the use of the term “will” is to ensure that employees who are reasonably identifiable at the time the ballot is conducted, and who will, or will likely be, covered by the Agreement during its operation, have an opportunity to vote and to be afforded the other rights pursuant to the pre-approval process for the agreement.
[48] The term “will” should not be narrowly construed, and to do so could result in a situation such as that which arose in respect of the MI&E Holdings Pty Ltd Western Division Enterprise Agreement 2012 where an agreement expressed to apply in the State of Western Australia, was voted on by only four employees in one workshop, when the intention was that other employees could be moved in and out of that workshop (and the coverage of the Agreement) during the term of the Agreement. Approval of the Agreement was quashed by a Full Bench of the Commission on appeal. 20
[49] Applying the principles of construction relevant to industrial instruments, I am of the view that the Agreement in the present case covers all of the employees that the AMIEU asserts were not eligible to vote. I have reached this conclusion for the following reasons. The objects of the Act with respect to enterprise agreements include providing a simple, flexible and fair framework for enterprise agreements that deliver productivity benefits.
[50] The Agreement is beneficial in that it delivers wage increases and provides for terms and conditions of employment for production employees. I am satisfied that employees are better off overall under the Agreement than they would be under the Meat Industry Award 2010. To accept the argument of the AMIEU with respect to the disputed employees would result in a situation where those employees would not be entitled to the benefits of either the Agreement or the Award. Such an outcome would be neither fair nor sensible.
[51] The Agreement is made in the context of an Award which is expressed to apply to employees in classifications listed in the Award at Schedule B. That Schedule is broad and refers to employees who are competent to undertake tasks listed which include quality control and clerical tasks such as record keeping and the like. The material filed with the Agreement indicates that during the pre-approval stage, employees were informed that the Award is the benchmark although it is over-ridden by the Agreement.
[52] Further the Award is expressed at clause 4.3(c) to exclude “employees engaged to undertake managerial duties and responsibilities at the level of foreman and above” (emphasis added). In order to be excluded from the coverage of the Award, employees undertaking managerial duties and responsibilities at the level of foreman and above, must be specifically engaged to do so.
[53] This is consistent with the practice of Teys to enter into common law contracts of employment with Supervisory Staff and to employ such persons under a separate entity to that which employs production employees. In my view, but for the Agreement there would be no question that the Award would cover Trainee Supervisors and the other disputed employees, who are substantively employed as production workers and are undertaking tasks either as Trainees or on a temporary basis.
[54] It is also the case that clause 1.3 of the Agreement should be construed in the context of the Agreement as a whole. The objectives of the Agreement at clause 1.2 include the introduction of structured training and career paths. Clause 3.4 of the Agreement provides flexibility with respect to training rates of pay. These clauses reflect the commendable approach of Teys to internal promotion and the provision of opportunities for advancement to production workers.
[55] To construe the Agreement as excluding production workers who are being assessed as suitable for promotion to salaried supervisory positions and are being provided with structured training to undertake supervisory tasks, would be contrary to the objects of the Agreement. Similarly a production worker who is undergoing training in workplace health and safety or quality control, is covered by the Agreement.
[56] Further, the use of the term “engaged” in clause 1.3 is consistent with the Award provision referred to above. In my view, unless and until production employees who are in the role of Trainee Supervisors, or undergoing workplace health and safety training, are specifically engaged as Supervisors or Workplace Health and Safety Officers, in accordance with the arrangements customarily used by Teys to engage salaried staff, they are covered by the Agreement.
[57] I am also of the view that employees paid and classified as production workers at various levels of the Agreement can be temporarily assigned to perform incidental tasks such as assisting co-workers from non-English speaking backgrounds, at the behest of Teys, by interpreting for those co-workers. The evidence is that the employees engaged in these temporary assignments have now returned to their roles as production workers or will likely do so during the term of the Agreement. Had such employees been denied the opportunity to participate in the pre-approval processes and the ballot for the Agreement, they would have had cause to complain that the group of employees covered was not fairly chosen or that the Agreement was not genuinely made.
[58] The fact that there is no classification for Trainee Supervisors or Interpreters in the Agreement does not change my view. It is trite to say that an employee cannot be removed from the coverage of an industrial instrument by a simple change of title.
[59] A temporary redeployment does not change the employee’s substantive classification, particularly in circumstances where the employee can at any time, at the discretion of Teys, be required to perform production work. This is apparent from the evidence that some employees are performing the role of Tutors, and are considered to be covered by the Agreement, notwithstanding that there is no classification for Tutors in the Agreement.
[60] In the present case, a boner or a slicer would not be removed from the coverage of the Agreement by having his or her job designation changed to “knife artisan”. Further the fact that Trainee Supervisors wear hats of a particular colour, or carry two way radios, does not change the fundamental nature of their employment.
[61] The question of whether an instrument covers an employee requires more than a quantitative assessment of the time spent carrying out various duties. What is determinative is the circumstances in which the person is employed and the principle purpose of the employment. 21 In the present case, the Trainee Supervisors, interpreters and persons being trained to undertake quality control or workplace health and safety, are principally employed as production workers, and Teys has the right at any time to return them to such roles.
[62] It is also irrelevant that employees undertaking the role of Trainee Supervisors are paid in excess of the rate for their substantive classification under the Agreement. The evidence established that employees may be paid at a higher level while undertaking this role as an incentive for them to do so. There was also evidence that leading hands are considered to be covered by the Agreement, notwithstanding that they receive an additional allowance, which is not provided for in the Agreement.
[63] I am also satisfied that new starters were properly provided with an opportunity to vote in the ballot. The requirements of the Act with respect to the pre-approval steps are that reasonable steps are taken to ensure that all employees who will be covered by the Agreement are provided with the Agreement and an explanation of its terms, and given the opportunity to vote for approval of the Agreement.
[64] As a Full Bench of the Commission stated in McDonalds Pty Ltd v SDAE 22the test is not an absolute requirement to ensure that certain outcomes are achieved, and s.180 of the Act dealing with the requirements to explain the terms of the Agreement and provide employees with a copy, requires only that employers take reasonable steps. The Full Bench also held in that case, that while the employer is required to take reasonable steps to provide an explanation of the terms of an agreement prior to asking employees to vote to approve it, that explanation may continue throughout the approval process.
[65] It is also clear that Trainee Supervisors have noted in ballots for past Agreements. Mr Crawford’s evidence was that Supervisory Staff have not voted in previous ballots. For the reasons set out above Trainee Supervisors are not Supervisory Staff, and Mr Crawford’s evidence does not address Trainee Supervisors.
[66] For these reasons, there are no grounds upon which I could be reasonably satisfied that the Agreement was not genuinely agreed to by employees, and accordingly I approved the Agreement.
DEPUTY PRESIDENT
Appearances:
Mr D. Williams on behalf of Teys Australia Beenleigh Pty Ltd.
Mr E. Dalgleish and Mr L. Norris on behalf of the Australasian Meat Industry Employees Union.
Hearing details:
2013.
Brisbane:
September 25.
1 [2013] FWCA 7477
2 Exhibit 1
3 Exhibit 2
4 Exhibit 3
5 Exhibit 4
6 Exhibit 5
7 Exhibit 6
8 Exhibit 7
9 Exhibit 8
10 Exhibit 9
11 Exhibit 10
12 Exhibit 11
13 Amcor Ltd v Contstruction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 253 per Gummow, Hayne and Heydon JJ.
14 Re Clothing Trades Award (1950) 68 CAR 597.
15 Amcor op.cit. at 270 per Kirby J.
16 Kucks v CSR Limited (1996) 66 IR 182 at 184.
17 Amcor op.cit. at 283 per Callinan J.
18 Kucks v CSR op.cit. at 184.
19 Andrew John Short v Hercus [1993] FCA 51; (1993) 40 FCR 511 at 970 per Burchett J.
20 CEPU & Ors v MI & E Holdings Pty Ltd [2013] FWCFB 2142.
21 Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387.
22 [2010] FWAFB 4602 at [29] - [31].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR542938>
5
8
0