The Australian Workers' Union v GrainCorp Operations Limited

[2014] FWC 5777

[2014] FWC 5777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
GrainCorp Operations Limited
(C2014/5448)

Grain handling industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 23 SEPTEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 17 July 2014 The Australian Workers’ Union filed an application for the Fair Work Commission to deal with a dispute about matters arising under the enterprise agreement. The dispute was filed under the dispute settlement procedure in the GrainCorp Operations Ltd-AWU (Victorian Operations) Enterprise Agreement 2013 1.

[2] The matters were conciliated, but were not settled.

[3] I have had regard to the submissions put and evidence led.

[4] Two witnesses gave evidence -

● Mr Ronald Paul Hayden, and
● Mr Scott Whitmore.

[5] I have had regard to all the submissions and evidence. In my respectful view this matter should have been settled, but the parties were firm that their positions were correct.

The Claim

[6] The applicant seeks determinations that:

● Site Managers are covered by the agreement;
● Grain Corp breached clauses 3.1, 3.5 and 3.7 of Appendix 4(b) by for example not developing by consultation a selection matrix as required by the clauses;
● Grain Corp breached clause 14(b)(iii) of the agreement by converting only 15 not 20 casual employees to permanent positions by 1 April 2014, and other matters.

Authorities

[7] In Amcor Limited v Construction Forestry Mining and Energy Union 2 Gleeson CJ and McHugh J said in a joint judgement:

“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover. Similarly, there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity, or of succession, or of discontinuity. Thus, depending upon the legal regime under which it takes place, a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations, and the question of succession to these rights and obligations, will require examination of the relevant legal (usually statutory) framework.”

[8] In that decision, Kirby J said:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’.”  3

Jurisdiction

[9] Firstly, the applicant seeks to have the Commission exercise power pursuant to ss.738-739. Those sections enable me to exercise arbitration powers ‘in accordance with the term’ in the enterprise agreement, and require me not to exercise any powers limited by the term in the enterprise agreement.

[10] Secondly, the dispute settlement procedure in the agreement (clause 8) provides:

8. DISPUTE SETTLEMENT PROCEDURE

(a) Disputes pertaining to the relationship between the Company and employees, deductions from wages, the operation of the Agreement, or relating to the National Employment Standards will be resolved according to this procedure. [emphasis added]

(b) The employee/s concerned will meet and confer with their immediate supervisor. The employee/s may appoint another person to act on their behalf including a Union delegate, Union official or employee representative.

(c) If the matter is not resolved at such a meeting the parties to the dispute will arrange further discussions involving more senior management as appropriate. The employee, Union delegate or employee representative may invite an official from the Union to be involved in the discussions as a further representative of the employee. An Officer of the Union who is so invited will be entitled to enter the workplace to represent the employee and the Company will not prevent or hinder such entry. The Company may also invite into the discussions another representative of their choosing.

(d) If the matter cannot be resolved directly between the parties to the dispute, either of the parties to the dispute may refer the matter to Commission to resolve the matter. Fair Work Commission may resolve the matter by mediation, conciliation or arbitration and may grant interim relief. Any arbitrated decision of Fair Work Commission, whether interim or final, shall be binding and the parties will abide by such decision. Fair Work Commission may give all such directions, orders and/or recommendations and do such things necessary or expedient for the speedy and just hearing and determination of the dispute.

(e) Until the dispute is resolved, the status quo antes will prevail, unless the employee has a reasonable concern about an imminent risk to their health or safety. In order to be clear, if the dispute is about a change at work, the status quo represents the position before the implementation of the change.’ [emphasis added]

[11] Thirdly, in this case the AWU submits that the dispute is about the operation of the Agreement, and that Graincorp has breached clauses 3.1, 3.5 and 3.7 of Appendix 4(b) by for example not developing by consultation a selection matrix as required by the clauses.

[12] Graincorp submit that the application does not raise breach of the clauses of the agreement discussed above, and the Commission is limited to determining whether the redundancies are ‘genuine’ 4. It says that this is ‘the matter’ referred to in paragraph (d) of the disputes procedure.

[13] The AWU replied that the ‘Respondent cites no authority for this proposition. This is because there is none to support it.’ It submits that Dodds-Streeton J in Kate Shea v. Truenergy Services Pty Ltd 5said that section 365 of the Act does not implicitly provide that the dispute precisely coincides with the content of the FWA application, and that the court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access.

[14] In AMWU v Holden Limited 6 a Full Bench of the Commission said:

‘[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.’

[15] In Maritime Union of Australia v Australian Plant Services Pty Ltd  7 Lacy SDP said:

“An important limitation on the Commission’s powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement “to settle disputes over the application of the agreement” and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute.  [Citations omitted]

[16] In UFU v. MFESB 8 a Full Bench of the Commission adopted these observations, and also said:

‘[14]The UFU placed emphasis on the fact that the Commissioner had, in his 2003 decision, characterised the dispute notified to the Commission as a dispute over the application of the agreement. In Re PKIU; Ex parte Vista Paper Products Pty Ltd  Gaudron J (with whom Brennan, Dawson and Toohey JJ relevantly agreed) noted that:

“…an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute "may be diminished or ended or enlarged or altered during ... proceedings in the Commission" (R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J at p 168) or, for that matter, at any stage during the course of the dispute itself” 

[15]Although that comment was made in the context of an “industrial dispute” within the meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a dispute notified pursuant to a dispute settlement procedure in a certified agreement.’ [Footnotes omitted]

[17] In Hay Point Services Pty Ltd v. CFMEU 9a Full Bench of the Commission said:

‘To seek to dissect the dispute into several components is highly artificial and, in our view, untenable. Given that the dispute, or at least part of it, relates to a matter arising under the Agreement, the disputes resolution process in clause 22 is enlivened. That process allows the parties to refer the dispute to Fair Work Australia if the parties have been unable to resolve their differences.

...

We see no jurisdictional impediment to the matter progressing to the first stage. During that stage the nature of the dispute might change as agreement is reached on some aspects or other aspects are clarified or restated, as is typically what occurs during conciliation or mediation. As was said, albeit in relation to different legislation, ‘if the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies.’ 10

[18] Turning to deal firstly with the terms of the dispute as described in the application lodged by the AWU, the application provides:

‘The Dispute concerns three matters ....The second matter in dispute, concerns the company making 15 permanent employees redundant. The AWU does not believe these are genuine redundancies as the company has a large number of casuals working across the sites where they intend to implement the redundancies. In addition the company has advised the AWU that between October and December this year they intend to engage a large number of casual workers.’

[19] It is true that the application refers to ‘genuine redundancies’ when stating ‘What is the dispute about?’ [question 4]. In answering that question the applicant begins with a preliminary reference to the whole issue of redundancies, the 15 to be made redundant. The applicant also states that:

‘In addition the company has advised the AWU that between October and December this year they intend to engage a large number of casual workers.’

[20] This raises the issue both of genuineness and also possibly measures to avoid redundancy. As discussed below the employment of seasonal employees is in Mr.Hayden’s view a possible measure to avoid redundancy, which is dealt with in clauses 3.1-3.5 of the Appendix 4(b) of the agreement. Consistent with this the application refers in general terms to Appendix 4 Redeployment and Redundancy Arrangements and Entitlements as ‘Clauses to which the dispute relates’ in paragraph 3 of the application. It is difficult, and somewhat artificial, to make the distinction made by Graincorp.

[21] In addition there is the issue of the factual background to the dispute. Both AMWU v Holden Limited 11 and UFU12suggest that in characterising the nature of the dispute in this matter the Commission ‘is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced’. Mr.Hayden gave evidence that in June 2014 he told Mr.Whitmore that ‘the AWU wanted to resolve the dispute about whether and how to have forced redundancies. The reason I said this was because in a few weeks there will be an increase in employee numbers during the harvest. I said and still believe that the same people who would otherwise be made redundant could be employed to fill these positions’.13 I accept this evidence. The evidence given by Mr.Whitmore confirms the wide ranging nature of the dispute and that it was not narrowly confined. No agreement was reached on these issues. The dispute, in other words, concerned the various options to avoid redundancies amongst other things.

[22] Mr.Hayden gave other evidence about the matters in dispute at meetings on 4 July, 14 July and other events including Commission proceedings where the issues were extensively ventilated 14. In any event it is clear that these issues arose during the evolving discussions during proceedings, that various measures to comply with these provisions were discussed by the parties leading up to the AWU application, and that the parties are in dispute about them. The application has to be understood in the context of these events, and again it is difficult to find reasons to adopt Graincorp’s narrow construction of the matter in dispute.

[23] The question of genuineness of the redundancy, in addition, has to be examined in the context of the relevant agreement provisions and not just the use of the term in the Act. If the agreement provisions are not complied with a purported redundancy will not be such in the context of those provisions 15. Again it is somewhat artificial to make the distinction sought to be made by Graincorp.

[24] In my view I have jurisdiction to resolve the alleged breaches of redundancy provisions by arbitration as sought.

Site Managers

[25] Section 53(1) of the Act states that an employee is covered by an agreement if ‘the agreement is expressed to cover (however described) the employee’. According to clause 4 the agreement applies to and binds GrainCorp and ‘all employees of GrainCorp Operations Limited, employed in Victorian operations within the classification described within this Agreement’. Clause 11 defines ‘employees’ as those persons employed specified in clause 11. Clause 11 sets out the ‘types of employment’. Clause 26(a) refers to Appendix 3. Appendix 3 includes a Grade 5 level as the top classification.

[26] There has been a restructure of the management levels. Site managers were introduced in 2005, being salaried managers based at Graincorp’s large sites. They were not covered by the then agreement. In 2007 Graincorp changed their title to ‘Grain Services Managers’, to increase their status with customers.

[27] In 2009 the highest classification level of the agreement, a grade 5 employee, was changed from ‘Site Supervisor’ to ‘Site Manager’, to distinguish it from Grade 4, because certain employees could ‘step up to take on certain GSM responsibilities as required’, and it ‘was being used in practice’.

[28] The Grain Service Manager title was removed. Some Grain Service Managers became ‘Area Managers’ and some became ‘Site Managers’. Site managers retained their salaries and other terms and conditions 16.

[29] However, the new Site Managers are not the old supervisors which the agreement covered. As Graincorp submitted:

‘After the making of the agreement, and as part of the Project Regeneration, the Grain Services Manager positions were restructured into two new positions, an Area Manager and a Site Manager. The Site Manager position in the new management structure retained all of the essential duties and responsibilities of the Grain Services Manager, save that where the Grain Services Manager was responsible for multiple sites the Site Manager exercise the role at one site. Notwithstanding the unfortunate duplication of the indicative role title in the Agreement, the Site Manager role in the new management structure is clearly managerial in nature and a continuation of the managerial function previously performed by the Grain Services Manager.’ 17

[30] As Graincorp admit the use of the term ‘Site Manager’ in both the new job positions and the agreement is ‘unfortunate duplication’, but the issue of agreement coverage must be determined by evidence about matters such as the duties of the position, rather than the title. If that was not the case it would be a simple matter for Graincorp to avoid the agreement by changing titles of positions.

[31] Mr.Whitmore gave evidence that the employees who now hold the Site Manager job title have never been covered by any enterprise agreement, and ‘perform duties that have never been performed by any enterprise agreement employees. For example, Site Managers perform responsibilities previously performed by GSMs relating to financial delegation, business continuity, employer representation, EBA reporting and performance management.’ 18

[32] Mr.Hayden gave evidence that having regard to the position descriptions for site manager attached to his witness statement to fulfil the requirements of the position of site manager would ‘need significant training, if you were a grain handling operator’ 19. He said that there would be one site manager on every primary site20.

[33] Turning to deal with the agreement, the term ‘Site Manager’ appears in ‘Appendix 3: Grain Operators Classification Structure’ [emphasis added]. This and the content of the appendix, which describes the tasks of grain operators, suggest that it covers ‘grain operators’, not managerial staff. The tasks performed include functions such as grainhandler, weighbridge operators, plant operator, lead sampler and assessor, lab assistant, courier driver. Employees need qualifications such as truck licence, bobcat licence, forklift licence, and so on.

[34] Grade 5 employees, the highest level, are those with the ‘general description’ of:

‘An employee at this grade works as a site supervisor who manages and leads multiple work groups, functions and/or activities. An employee at this grade is capable, willing and appointed to relieve the duties of a GSM/GPS/T&EC on a temporary basis’.

[35] This is a site supervisor position, which manages and leads work groups, with some ability to temporarily relieve the duties of a manager such as a GSM (presumably Grain Services Manager). While as a supervisor the position involves supervision of others, as well as responsibility, discretion, being required to work alone, quality, and other matters, this does not mean that purely managerial functions are performed. The Indicative Tasks refer to training, acting in a site manager capacity, grain handling, fumigation which involves being ‘competent in the use of fumigation equipment following required training from the manufacturer’ and being ‘able to perform all pest control tasks’, truck driving with trailer extended to transport grain stackers between sites, transporting wide loads. Again, these are the tasks of a senior grain handler, performing or closely supervising the tasks of grain handling, fumigation, pest control, and truck driving, and with managerial tasks undertaken being that of supervision with acting up into managerial positions as required.

[36] Finally, the history of the appendix suggests that the position is essentially that of a senior supervisor, not the duties of the former Grain Services Manager position or a derivative of it.

[37] The ‘position descriptions’ for ‘Grain Services Manager’ and ‘Site Manager’ are in evidence 21. The position description for a ‘Grain Services Manager’ provides that it reports to ‘Operations Manager’, is a ‘Grade 5’, and refers to the position dimensions including 1-3 sites (outside harvest), ‘EBA staff’ report to it, key challenges, key relationships/interactions, values, equipment, knowledge/experience requirements, and key accountabilities of OHS, people leadership and development, business management, financial performance, customer relationships, quality, maintenance, and integration with other business units.

[38] The position description for a ‘Site Manager’, dated July 2014, refers to reporting to the ‘Area Manager’, it being a Grade 4 position, EBA staff reporting to it, primary objectives, key challenges, ‘At Graincorp we value’ some seven issues or values, knowledge/experience requirements. The ‘key accountabilities’ are in the same terms as the Grain Services Manager position description.

[39] The key conclusion to be drawn is that overall the duty statements of the old Grain Services Manager and the new Site Manager are of a comparable nature, with some limited differences only such as the number of sites which the manager is responsible for 22. The duty statement of the Site Manager is not that of a supervisor or senior supervisor, or senior grain handler, but that of a manager. It has little or nothing in common with the indicia for a Grade 5 in the agreement.

[40] The applicant submits that a site manager used to look after 3-4 sites and now looks after 1 site, while another position, the Area Manager is now responsible for 3-4 sites and accordingly has taken over the old site manager role 23. It further submits that the position description for site manager published by Graincorp in July 201424 refers to a site manager as ‘grade 4’. It submits that this is a reference to grade 4 in the enterprise agreement. Further the position description refers to the ‘EBA’ (enterprise bargaining agreement) on three occasions, ‘but none of those references state that the position falls outside the Agreement’25. However, Graincorp led evidence that the reference to grade 4 is to a Graincorp grading system of 1-9 grades across the business26. Further the change of number of sites does not necessarily change the duties performed at sites. The references to the EBA in the Site Manager position description make it clear that the job involves ‘EBA Staff reporting to it’, namely that this is a manager of the EBA staff including site supervisors not a part of the ‘EBA Staff’.

[41] On the submissions and evidence before me I conclude that the new site manager positions are not covered by the agreement.

Grain Corp breached clauses 3.1, 3.5 and 3.7 of Appendix 4(b) by for example not developing by consultation a selection matrix as required by the clauses

[42] Clause 3.1 requires Graincorp to take ‘all possible steps’ to avoid redundancies. In the event that redundancies are required, the employer must call for volunteers, if there are not enough consult to obtain other volunteers, and examine ‘all possible options for avoiding forced redundancies including retraining; redeployment and job sharing. The company will not unreasonably refuse to implement any such options’ [clauses 3.1-3.5].

[43] Volunteers were sought according to Mr.Whitmore. He says that harvest season does not occur until November, some months after the meeting he held on 24 June 2014. Mr.Whitmore states that ‘Graincorp explored all possible redeployment opportunities for six outstanding employees’ and no suitable positions were available for the six employees, that there are no vacant grain protection officer positions, that Site Manager positions require ‘substantial retraining’ given that they are managerial positions significantly different to that of a grain handler, and that none of the options put by Mr.Hayden in paragraph 58 of his statement were a viable option for Graincorp. He said that meetings had been held on 30 May, 24 June, 4 July and 14 July to discuss redundancies. The meeting on 24 June followed expressions of voluntary redundancy and at that meeting employees and the union were told that ‘we would need to move to forced redundancies as there had not been enough expressions of interest in the voluntary process’ 27. This meeting meets the requirements of clause 3.5, and as noted below I prefer the evidence of Mr.Whitmore to that of Mr.Hayden on this and most issues.

[44] Options mentioned by Mr.Hayden included inviting some employees to take leave, seasonal employees in October, retraining to site manager positions, and job sharing. Mr.Hayden also said that he was not aware of any meeting with Graincorp which involved an examination of all possible steps to avoid redundancies or options to avoid forced redundancies 28. There was some cross examination of Mr.Hayden on these issues relating to whether or not he had raised these issues with Graincorp and the utility of such measures 29.

[45] I accept that the agreement has to be interpreted with ‘industrial commonsense’ 30, and I am also concerned not to make the agreement ‘unworkable’31. I accept and prefer the evidence of Mr.Whitmore. I am not satisfied that any other option has been mentioned which for example is workable or feasible in the circumstances, or which otherwise meets the requirements of clause 3.1-3.5. Graincorp undertook a variety of steps and meetings during which all possible steps were investigated and taken, and all possible options for avoiding forced redundancies were examined. The company did not unreasonably refuse to implement any such options. Clauses 3.1-3.5 were not breached.

[46] However, did Graincorp ‘develop by consultation a selection matrix for the company to determine who shall be selected for redundancy’ as required by clause 3.7? This is almost a matter of agreement. Mr.Whitmore says that one was developed but that when he met with the AWU on 14 July 2014 that ‘We did not show the AWU the draft matrix’. He said that the AWU refused to hold any formal discussions about the matrix, so instead Graincorp provided a verbal explanation of the matrix, and some ‘informal’ discussion occurred 32. The letter of invitation to the meeting referred to meeting ‘to progress the process through consultation of the appropriate selection matrix to be used ...’33

[47] Mr.Hayden gave evidence that he met with Graincorp on 14 July 2014 and that no matrix was provided to them nor developed at that meeting, and that Graincorp had not even decided on the number of forced redundancies, whether 11 or 6. He thought the AWU would have another opportunity to develop the matrix 34.

[48] It is possible that Mr.Hayden was not particularly cooperative, and there is some disagreement about what happened at the meeting. It seems clear from the evidence that the AWU discussed the matrix in general terms but would not agree to a matrix at this one meeting, and that a further meeting would have been required for it to agree. This is not necessarily an entirely unreasonable position, given that Mr.Hayden said that he needed to speak to his members 35. It is not clear on the evidence that there were six permanent positions that are redundant and only six permanent employees who can be made redundant36, because there is contrary evidence37. Mr.Hayden gave evidence about the reference in SW12 to ‘6/9’ in the notes taken by the employer that:

‘When we met, we were discussing who would be involved in a matrix and whether it would be - we understood there were six redundancies; that the company was looking for six redundancies. The question that was put: would it be six out of the 15 casuals that had been converted because they were the only ones that were eligible for redundancy, and that was across the state. Would it be six out of the nine in the south-east of the state or would it be six out of seven in general areas that they were looking?’ 38

[49] Even if the problem of numbers is overcome, the obligation in clause 3.7 to develop by consultation a matrix is mandatory and is not qualified by an expression such as ‘where appropriate or necessary’. It is also clear that the matrix was neither provided to the AWU nor developed at that meeting, and the discussion that occurred was preliminary only in nature. Clause 3.7 was not complied with and has not been.

[50] The parties have had difficulties in resolving issues between them, and I therefore make the following comments. The AWU now have the matrix, and have analysed it. It should not take long for it to provide Graincorp with a written commentary setting out the difficulties if any with it, for example one week. If I am requested I will schedule a conference to enable discussion of the matrix between the parties, and any other difficulties.

Grain Corp breached clause 14(b)(iii) of the agreement by converting only 15 not 20 casual employees to permanent positions by 1 April 2014.

[51] Again this is almost a matter of agreement 39. According to Mr.Whitmore 15 casual employees have been converted, while a further one employee ‘was dismissed during the conversion process as a result of misconduct’40. He gave evidence that he had ‘approved’ the conversion, but that the employee had not yet been notified41. It appears that the conversion would not take effect until the employee was offered the conversion, and accepted the conversion in the terms offered42, given that this is a change to the employee’s contract of employment from casual to ‘permanent’ employment. Nothing in clause 14(b) Casual Employment is inconsistent with the ordinary approach to contract variations or termination and replacement by new contracts. This is consistent with the evidence of Mr.Whitmore, who gave evidence referred to above that the dismissal was ‘during’ the conversion process not ‘after’ it. The claim that the clause has been ‘honoured in the spirit’ because conversion would not materially assist converted casuals, in Graincorp’s view,43 does not alter the fact that the requirements of the clause have not been met, and that this is agreed. In any event these employees would have received ‘the entitlements of permanent employment backdated’, so it would materially assist them44. It therefore appears and I so find that 15 employees were converted from casual to ‘permanent’. Graincorp breached the agreement by converting 15 not 20 casual employees.

DEPUTY PRESIDENT

Appearances:

Mr M Albert of Counsel for the applicant

Mr R West for the respondent

Hearing details:

2014

Melbourne

21 August

 1   AE406305

 2 [2005] 222 CLR 241

 3   Ibid, paragraph 96

 4   Exhibit G1, paragraphs 4-10

 5 (No 1) [2012] FCA 628

 6   PR940366, Ross VP, Acton SDP and Hingley C, 10 November 2003

 7   PR908236

 8   PR973884

 9   [2012] FWAFB 9173

 10   Ibid 12-14

 11   PR940366, Ross VP, Acton SDP and Hingley C, 10 November 2003

 12   PR973884

 13   Exhibit AWU1

 14   Exhibit AWU1 paragraphs 19-57

 15   Exhibit AWU3, paragraph 3

 16   Exhibit G2, paragraphs 80-88

 17   Exhibit G1, paragraph 23

 18   Exhibit G2, paragraphs 80-88

 19   PN709

 20   PN696

 21   Exhibit AWU1, Attachment RH5

 22   Exhibit AWU3, paragraph 11

 23   PN776

 24   Exhibit AWU1, Attachment RH5

 25   Exhibit AWU2, paragraph 17

 26   PN729-731

 27   Exhibit G2, paragraphs 22-35

 28   Exhibit AWU1 paragraphs 58-60

 29   PN693-699

 30   PN840

 31   PN828

 32   Exhibit G2, paragraphs 49-51

 33   Exhibit G2, Attachment SW10

 34   Exhibit AWU1, paragraphs 28-40

 35   PN614

 36   Exhibit G1, paragraph 18

 37   Exhibit AWU3, paragraph 9

 38   PN604

 39   Exhibit G1, paragraphs 26-30

 40   Exhibit G2, paragraph 90

 41   PN734-735

 42 Crown v. Clarke (1927) 40 CLR 227; Quinn v. Jack Chia [1992] IVR 567; Concut Pty Ltd v. Worrell (2000) 75 ALJR 312

 43   Exhibit G1, paragraph 28

 44   Exhibit AWU3, paragraph 14

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<Price code C, AE406305  PR554573>