The Australian Workers' Union v Snack Brands Australia, a partnership between Snack Brands Foods Pty Ltd and Snack Brands Industries Pty Ltd

[2014] FWC 2879

[2014] FWC 2879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Australian Workers' Union
v
Snack Brands Australia, a partnership between Snack Brands Foods Pty Ltd and Snack Brands Industries Pty Ltd
(C2013/7314)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 8 MAY 2014

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

Introduction

[1] This is an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure lodged pursuant to s.739 of the Fair Work Act 2009 (the Act).

[2] The application by the Australian Workers’ Union (the AWU) was lodged on 21 November 2013.

[3] The respondent employer is Snack Brands Australia, a partnership between Snack Brands Foods Pty Ltd and Snack Brands Industries Pty Ltd (Snack Brands).

[4] The relevant enterprise agreement is the Snack Brands Australia Smithfield Operations Site Agreement 2013 [AE401464] (the Agreement) which applies to the Smithfield, Sydney operation. The factory produces products such as Cheezels, potato crisps and corn chips.

[5] As at 7 February 2014, there were some 162 employees covered by the Agreement. (Exhibit R11)

[6] The application was dealt with in conference on 5 December 2013. The dispute was not resolved and was therefore set down for hearing. Directions for the filing of submissions and witness statements were issued.

[7] I conducted an inspection of the Smithfield site on 27 February 2014. The hearing took place on 28 February 2014. It concluded with a final witness and submissions on 11 March 2014.

[8] Some further written submissions were filed by the parties as follows:

● Snack Brands 17 March 2014

● AWU 18 March 2014

[9] Mr S. Crawford represented the AWU and Mr M. Mead and Ms F. Rodriguez of the Australian Industry Group represented Snack Brands.

Background

[10] In general terms, the dispute is about the appropriate remuneration to be provided to employees when they train other employees.

[11] I dealt with an earlier dispute at the site in mid 2013 (C2013/992). This dispute related to the selection process for a particular job. A conference was held on 11 July 2013 which led to an agreement about the selection criteria and process for additional employees then being engaged by Snack Brands.

[12] The matter was relisted at the request of the AWU because of a breakdown in finalising one aspect of the Agreement.

[13] In the meantime, this dispute about in-house training had arisen. At the request of the AWU it was also discussed at the conference held on 20 November 2013. The AWU tabled a draft F10 application relating to the training issue. The original dispute was resolved but the training dispute was not. The AWU undertook to file a formal application.

[14] The F10 form stated that the dispute was about “the provision of in-house training to new employees and employees being up-skilled”. It also stated that there had “been a long standing practice at the Smithfield site for in-house training to be provided by either Level 7 or Level 8 under the Agreement”. It alleged that there were certain segments/shifts where there were no Level 7 of Level 8 employees. These were:

● Potato flavour - day shift

● Quality control - day shift;

● Cereal packaging - afternoon shift

● Potato processing - night shift

[15] In these areas Level 6 employees had been directed to provide training. Claims by the AWU for higher duties payment for these employees had been refused by Snack Brands. It is apparent that the dispute arose in 2013 because Snack Brands employed additional employees for the first time in several years.

[16] The AWU’s claim was based on its interpretation of the relevant provisions of the Agreement, but also what it said was the previous practice of Snack Brands in making higher duties payments. This practice had now been departed from.

[17] The AWU’s claim, at this stage, was payment at higher duties (that is Levels 7 or 8) for employees who were Level 6 or below, who provided other employees with training that includes an assessment of the employee’s competency.

Relevant Agreement Clauses

[18] The Agreement was approved by Commissioner McKenna on 28 May 2013. Its nominal expiry date is 7 February 2016. The AWU and National Union of Workers are covered by the Agreement.

[19] I was advised that the 2013 Agreement had been finalised after difficult negotiations arising from challenges that confronted the business. The new owners sought a lower wages structure for new employees that became part of the 2013 Agreement.

[20] Some aspects of previous agreements are referred to later in this decision. However, it is convenient to set out the provisions of the 2013 Agreement which were the subject of debate in the case.

“24. Mixed Functions or Higher Duty Allowance

24.1 An Employee who is required to do the work of a higher paid classification is entitled to be paid:

(a) If the work carrying the higher rate is for two hours or less: The higher rate for that work.

(b) If the work carrying the higher rate is for more than two hours: The higher rate for the whole day or shift.

24.2 If an Employee is required to do the work of a higher paid classification for at least 90% of his or her time for a period of at least six months, the Employee can request to be moved permanently to the higher classification. If the Employee makes such a request, the Employer must assess the Employee on the competencies of the higher classification. The Employer must move the Employee to the higher classification if he or she is deemed competent following that assessment.

24.3 An Employee who on any day or shift is requested to do work carrying a lower rate than their ordinary classification is entitled to be paid his or her normal ordinary hourly rate.”

[21] The Agreement contains a nine level skills based classification structure which is contained in the Appendix. (The previous agreement had 6 levels) The translation is as follows:

“

Previous Classification	Classification under the Agreement
1	4
2	5
3	6
4	7
5	8

Levels 0, 1, 2 and 3 of the new Agreement have been developed specifically for new employees who commence employment after the Agreement commenced operating; and

New employees can only progress from Level 3 to Level 4 under the agreement after 10 years of service. The same rule then applies for progression to Level 5 and Level 6.”

(AWU’s submission, 21 December 2013 at page 2)

[22] Exhibit R11, which was agreed, sets out the workforce breakdown as at 7 February 2014 as follows:

FT		PT		Total Employees
M	F	M	F
5 + 1	0	0	0	5 + 1
27	11	0	0	38
29	23	1	0	53
14	15	0	0	29
0	17	0	0	17
0	0	0	0	0
0	1	0	0	1
10	6	0	0	16
1	0	0	0	1
87	73	1	0	162

[23] The following clauses relate to movement between classifications:

“26.2 Moving between classification levels

(a) An Employee must demonstrate competence at his or her current level within the Classification Structure before being assessed for the next level.

(b) Competency assessments for Core and Technical Skills must follow a systematic and structured approach and the Employer must document results. The Employer will develop assessment tools to facilitate this process. If an Employee disputes the outcome of an assessment, he or she can raise a dispute under clause 43. Disputes on selection for training will also follow this process.

(c) The Employer agrees to re-train people at their current level to ensure there are adequate records on file to support further development.

(d) In some circumstances, the Employer may request an Employee with appropriate technical skills to perform duties that would normally require someone at a higher level within the classification structure. In such circumstances, the Employee is entitled to be paid in accordance with clause 24.

(e) Employees may not advance to, or undertake training or assessments to advance to, Levels 3 to 8 (other than progressions based on service with the Employer) without Employer approval.

(f) Where agreed by the Employee the Employer, an Employee can move down a level and his or her pay rate will be adjusted accordingly, effective the agreed date.

26.3 New or vacant positions

(a) For any new or vacant positions, the Employer will give Employees the opportunity to apply if possible.

(b) If any Employees choose to apply, the selection process will consist of competency based interview, on the job analysis, assessment and attendance records.

(c) The Employer must provide feedback to all candidates.”

. . .

“27.3 Employee obligations

(a) It is a condition of employment that each Employee must:

(1) Work as required on any work within his or her competence, subject to prevailing statutory requirements;

(2) Participate in the Employer’s skills training program;

(3) Provide instruction and or training as appropriate to other team members;

(4) Perform a task when required where an Employee is trained and competent in that task.

(b) These principles apply across all areas of operation, which include production, sanitation, warehousing, and the maintenance environment in line with the agreed practices.

[24] Snack Brands relied on Clause 45.2 which provides that the 2013 Agreement replaces all previous understandings and arrangements on site.

“45. No further claims

. . .

45.2 All previous awards, agreements, arrangements, understandings, customs and practices whether written, verbal or implied which are not specifically written into this Agreement are rescinded and replaced by the Agreement and have no further application to this site. The parties acknowledge that this clause does not affect the operation of the memorandum of understanding developed in conjunction with this Agreement in 2013.”

[25] The AWU relied on the specific references to training in Level 7 and Level 8 competencies contained in the Appendix which are:

“7.0.5 Assists with in house training programs

8.0.3 Plans and implements in house training programs”

The Approach of the Commission

[26] The parties asked the Commission to resolve this dispute by exercising its powers of arbitration. Clause 43 Avoidance of Industrial Disputes provides:

“43. Avoidance of industrial disputes

43.1 If a dispute arises that relates to:

(a) A matter arising under this Agreement;

(b) An established custom or practice of the Employees; or

(c) The National Employment Standards,

Then this clause sets out procedures to settle the dispute.

43.2 An Employee who is a party to the dispute may appoint a representative of his or her choice which could include the union for the purposes of the procedures in this clause.

43.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors or management.

43.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to FWC.

43.5 FWC may deal with the dispute in two stages:

(a) FWC must first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If FWC is unable to resolve the dispute at the first stage, FWC may then:

(1) Arbitrate the dispute; and

(2) Make a determination that is binding on the parties.

43.6 If FWC arbitrates the dispute, it may use the powers that are available to it under the Act.

43.7 A decision that FWC makes when arbitrating a dispute is a decision for the purpose of Division 3 of part 5.1 of the Act. This means an appeal may be made against the decision.

43.8 The parties to the dispute agree to be bound by a decision made by FWC in accordance with this clause.”

[27] It is well settled that the Commission is often required to interpret an award or an agreement in order to resolve a dispute by arbitration.

As the High Court said in Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) CLR 140 at paragraph 9:

“The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power.”

[28] Words in an agreement, or other instrument, should be given their plain and ordinary meaning. The language used, however, needs to be considered in the light of the industrial context and purpose, especially the legislative background: Amcor Limited v Construction Forestry, Mining and Energy Union and Others (2005) HCA 10.

[29] Madgwick J summarised the approach in Kucks v CSR Ltd (1996) 66 IR 182:

“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.”

[30] In any event, the task for the Commission in this case, is not just to interpret the agreement but to arbitrate something which removes ambiguity and works for the future. Obviously, the parties can review the matters in future EBA negotiations.

[31] I turn now to summarise the competing cases.

The AWU’s Case

[32] The AWU relied on a written submission filed on 21 December 2013 and the witness statements and oral evidence of AWU members Ian Morley (level 6), Mark Sillis (Level 6) and Marlin Davoodi (Level 6).

[33] It is submitted that there are two types of “on the job” learning at Snack Brands:

1. An informal “buddy” system for new employees where they watch a current employee carry out their jobs.

2. Structured training where an existing employee works with another employee in a section. This leads to a formal assessment of competency to work in an area.

[34] The AWU claims the second type of training must be carried out by a Level 7 or Level 8 employee or higher duties paid if the employee is Level 6 or below. This training, could take three to five months, for example, to operate all the machinery in the cereal processing section. (Exhibit C4)

[35] The AWU relies on:

● The specific references to training in the classifications quoted above;

● Past practice of payment of higher duties. For example, Ian Morley gave evidence that he had been paid higher duties allowance whilst training another employee in 2006. (page 2 of Exhibit C3)

● The fact that this issue was not raised in the 2013 negotiations amounts to a breach of the no extra claims provision.

● Non payment of “mixed functions” is likely to mean that there will be less employees promoted to Level 7 and 8 over time.

● Marlin Davoodi gave evidence that he had been training a new employee for the last couple of months. Based on past practice he had been expecting a higher duties payment but had not received it. When he was being trained, higher duties were paid to the person who was the trainer. (Exhibit C1 page 2)

● Attached to Ian Morley’s second statement (Exhibit C4) was a petition signed by some 65 employees on 20 December 2013 which stated:

“We, the undersigned, as employees of Snack Brands Australia, believe there has been a long established practice at the Smithfield site for training to be provided by Level 7 or Level 8 employees (or Level 4 or Level 5 employees under previous agreements) and that employees below these levels have been paid a higher duties allowance if they are required to provide training.”

● A distinction is drawn between training for Level 0 and Level 1 (or 4) through the “buddy” system and training for other classifications where there is a formal assessment process. (Exhibit C4 at page 5)

[36] During the hearing the AWU amended the determination it sought to the following:

“The provision of training is a Level 7 or Level 8 duty under the Agreement. If an employee classified at level 6 or below is directed by the employer to provide “training”, the employee will receive a higher duties payment in accordance with Clause 24 for the duration of the “training”.

‘Training’ for the purposes of this determination is when a Trainer is appointed to provided instruction and guidance to a Trainee in relation to a position classified at Level 2 or above under the Agreement. The ‘training’ will commence when the Trainer is appointed by the employer and will conclude when the trainee has been assessed as competent.”

(Exhibit C5)

Snack Brands’ Case

[37] Snack Brands relied on a written submission filed on 7 February 2014 and the witness statements and oral evidence of:

● Jean Abel, Team Leader (Exhibit R5)

● David Murray, Senior Adviser, Australian Industry Group (Exhibit R7)

● Abeda Derwash, Senior Human Resources Adviser (Exhibit R4)

● Doaa Ali, Day Shift Team Leader (Exhibit R6)

[38] Snack Brands submitted that the proper interpretation of the Agreement is that the Higher Duties Allowance is not an entitlement of employees where the employer requires the employee to act as a “training buddy”.

[39] Snack Brands’ submission of 7 February 2014 at page 2 denies that custom and practice supports the payment of “mixed functions”. In any event, they say that only “custom and practice” since the commencement of the 2013 Agreement can be considered by the Commission. (See Clause 45.2 set out at [23] above) (Submission of 7 February 2014 at page 12)

[40] Snack Brands agreed that the Commission has power to arbitrate but not award monetary compensation for an under payment of wages.

[41] Snack Brands largely agreed with the AWU’s account of the history of the classification structure and provided the following summary:

“4.9

Classification level

Packer, Trim and Pare, Inner

handling/palletising, Tipping,

Forklift driver, Trim and Pare,

Inner handling/palletising,

Tipping.

Level 1 and 4

Forklift driver, Packaging

Machine Operator, Case

Coordinator, Potato receivals,

Flavour operator, Inner

handling machine as operator

Level 2 and 5

Flavour operator, Case

coordinator, Labour

coordinator, Slicer operator,

Fryer operator, QC technician,

Raw materials receivals,

Processing operator, BM 6&7

and BM in Cereal with Kliklok

and Cermex

Level 3 and 6

Robot Operator

Level 7

Back up team leader

Level 8

4.10 Level 7 and 8 under the Agreement corresponds with Level 4 and Level 5 under the previous agreement; Snack Brands Australia Smithfield Operations Site Agreement 2013 (Previous Agreement).

4.11 The skilled based pay system has been designed to encourage multi-skilling, broad bandings and flexibility across the Smithfield site without demarcation.”

(Submission, 7 February 2014 at page 5)

[42] The parties differed over the role of the “buddy system”. Snack Brands submitted:

“4.15 The role of a training buddy is to train an employee on how to perform the tasks associated with his or her role. The training buddy will provide the employee with on-the-job instructions to perform tasks and then observe how well the employee completed the relevant tasks. The training buddy is also available if the employee has any questions or concerns about the work that the trainee needs to do.

4.16 The Respondent uses the informal training buddy program to train all employees, regardless if the employee is being trained to perform basic tasks classified at level 1 or more complicated tasks classified at level 2 and above.”

[43] Snack Brands submits that the AWU’s reliance on the words in Level 7 and 8 quoted in [24] above is not appropriate because it ignores the context. They rely on the requirement on all employees to participate in the training program contained in clause 27.3 quoted in [22] above and on the skill based and progressive nature of the classification structure.

[44] Snack Brands also relies on the wording of clause 26.2(d), contained in [22] above, which appears to confine the operation of the “mixed functions clause” to the exercise of “appropriate technical skills”. In any event, clause 24 requires that all of the work of a higher paid classification be done, not just one task listed as a core competency, as the AWU claims. In other words, Snack Brands says that the “mixed functions clause” does not apply because the full job and competencies of Level 7 and 8 are not exercised. (Submission, 7 February 2014 at pages 11 and 12)

[45] Snack Brands relied on:

● The evidence of team leaders such as Jean Abel (Exhibit 5) and Doaa Ali (Exhibit R6), who are responsible for authorising the payment of “mixed functions”. Descriptions of how the training buddy system operates are set out. (Exhibit R5, [24] to [32] and Exhibit R6, [22] to [30]) Team leaders are responsible for the development and application of the assessment tool for employees under training. (Exhibit R5, [30] to [32]) Mr Abel and Ms Ali denied that “mixed functions” have been paid, at least since 2008, as asserted by the AWU. (Exhibit R5, [34] to [38] and Exhibit R6 [18]) Ms Ali emphasized the requirement for both the workplace assessor and the buddy trainer to deem the employee as competent.

● The evidence of Abeda Derwash, who gave a comprehensive description of how the buddy system operates. (Exhibit R4, [13] to [21]) She denied that higher duties had been paid to trainers as claimed. Indeed, she said it had not been raised as an issue by employees until recently. (Exhibit 4, [32] to [33]) There were many examples of below Level 7 employees not paid higher duties when they train people. (Exhibit 4, [38]) Attached to her statement were the Induction Kit, the Core Competency Information Kit, the Workplace Health and Safety Kit and the Assessment documentation.

[46] As part of Exhibit R3, Snack Brands tendered copies of the 2009, 2008 and 2005 Agreements covering the Smithfield site. The 2005 Agreement was with Arnotts Snackfoods and was an agreement of the Industrial Relations Commission of NSW. There appear to be no differences of significance in all the agreements with respect to the provisions that are the subject of debate in this case and set out in [20], [22], [23], [24] and [25] above. However, the 2005 Agreement sets out how the training system operates in rather more detail than the current agreement.

Conclusion

[47] As I have already noted, during the course of the proceedings, the AWU clarified and re-stated its claim. It is set out at [36] above. It defines “training” and requires employees at Level 6 or below to be paid at a higher rate when they train another employee.

[48] The relevant clauses in the Agreement, it seems to me, need to be re-drafted to clarify how the training system works and make the link between it and the remuneration system clear. I hope that this decision assists, but the final resolution of this issue lies with the negotiating parties.

[49] At the conclusion of the 28 February 2014 hearing I requested that Snack Brands submit a summary of how it says the training system operates at the site.

[50] Snack Brands complied by providing Exhibit R10 which is a proposed definition of “training” as follows:

“Training means ‘the provision of instruction by an employee with judged competent technical skills and who is covered by the Agreement (Trainer), who at the direction of Snack Brands, is required to provide instruction to another person (Trainee), to develop technical skills which the Trainee is working towards attaining. Training will occur “on the job” while the Trainer is performing normal duties and may involve the Trainer:

a) Demonstrating how to perform a relevant task to the Trainee;

b) Directing the Trainee to observe the Trainer perform the relevant task;

c) Communicating information to the Trainee whilst the Trainer performs the relevant task;

d) Observing the Trainee perform the relevant task;

e) Giving the Trainee any correction, direction, instruction or response to question in relation to tasks which the Trainee is yet to be assessed as competent in performing.

For the avoidance of doubt, any assessment process undertaken for the purpose of assessing the Trainee’s competency, whether formal or informal, will not be regarded as training.

It is a condition of employment under section 27.3(a)(3) of the Agreement for all employees covered by the Agreement to provide instruction and or training as appropriate to other team members’.”

[51] Snack Brands also provided Exhibit R8 which is a ten step selection induction and training procedure as follows:

“Selection for new or vacant position

Step 1 Team Leader identifies the need for new or vacant positions, including relief or back-up.

Step 2 Human Resources seek expressions of interest from existing employees (or applications from external candidates) for the new or vacant position.

Step 3 Team Leader interviews candidates.

Step 4 Team Leader selects the best candidate for the role. The selection criteria is based on; experience and exposure; motivation, drive and sense of urgency; team interaction; self-awareness and work habits; work performance; adaptability and flexibility; problem analysis safety consciousness; good manufacturing practices and quality awareness; and, communications skills.

Step 5 If the candidate chosen in step 4 is an external candidate, then he or she will participate in the ‘new employee’ induction before commencing on-the-job training (see step 6 onwards).

If the person chosen in step 4 is an internal candidate then he or she will commence on-the-job training (see step 8 onwards)

New employee induction

Step 6 Human Resources Adviser conducts an induction presentation which the candidate attends.

Step 7 Human Resources Adviser conducts a site induction which the candidate attends.

Commencement of on-the-job-training

Step 8 Team Leader nominates an employee (Trainer) to provide on-the-job instruction to the candidate (Trainee) while performing normal duties. The Trainer is an employee who is competent to perform the role being trained and train the Trainee.

Step 9 The Trainer provides the Trainee with on-the-job instruction on how to perform the tasks associated with the job. The tasks associated with the job are listed on an assessment tool which the Team Leader provides to the Trainer and Trainee at the start of the on-the-job training. On-the -job instruction includes the Trainer sharing their knowledge of the job with the Trainee; the Trainer demonstrating how to do the job to the Trainee; the Trainer explaining how to do the job; the Trainer watching the Trainee perform a task and correcting the Trainee where necessary; the Trainer advising the Trainee of any consequences associated with failure to perform the job correctly; the Trainer advising the Trainee of any health safety risks and control measures.

Assessment

Step 10 At the conclusion of training, the employee is assessed.”

[52] Each of the ten steps in Exhibit R8 was supported by references to the evidence both in witness statements and exhibits.

[53] The AWU, in its written response to Exhibits R8, R9 and R11 which was submitted on 18 March 2014, argued that Exhibit R8 understated the difference in the assessment methods as between Level 0/1 positions and Level 2 and above. The AWU also argued that Exhibit R10 was not supported by the evidence.

[54] I have considered all of the evidence summarised in this decision and was assisted by the inspection of the site. On balance, I find that Exhibits R8 and R10 are reasonable descriptions of the training process at the site. They are supported by the evidence, in statements and cross-examination of Snack Brands’ operational staff Ms Derwash, Mr Able and Ms Ali. I found that evidence convincing, especially as it was grounded in practical application of the Agreement and the company’s policies on the site.

[55] The AWU tendered Exhibit C6 which grouped the core competencies in the Agreement into different categories. Snack Brands submitted that this document was not supported by the evidence. I have considered this Exhibit but have come to the view that it does not affect the decision I have reached.

[56] I find that the AWU claim cannot be granted. It is not supported, in my view, by the terms of the Agreement or a consideration of the evidence.

[57] Clause 24 of the Agreement provides for payment at a higher classification rate if the work of the higher paid classification is done. It is true that the definitions of Levels 7 and 8 mention “training”, as set out in paragraph 25 above, but that is not enough to justify the payment. The substance of the work of the higher classification would need to be done. Even on the AWU’s argument, training is only one aspect of the work of these levels.

[58] Snack Brands relied on clause 26.2 to restrict the operation of the “mixed functions” clause to “appropriate technical skills”. I do not accept this argument but, in any event, the question is whether the substance of the work of the higher classification is done.

[59] Snack Brands also relied on clause 27.3 to support its argument that the Agreement requires all employees to participate in training. I accept this argument although, as I have said, the training provisions in the Agreement should be expressed more comprehensively.

[60] Finally, Snack Brands relied on clause 45.2 of the Agreement to argue that the Commission should not take into account past practice in interpreting the Agreement. I do not accept this point. The appropriate approach to interpreting the agreement is set out in [27] to [30] above.

[61] In any event, the evidence supports the picture of what occurs in training on site provided by Snack Brands. There are not two types of training system, but one, as described by Snack Brands.

[62] The evidence of a “mixed functions” payment being paid by Snack Brands from Ian Morley and Marlin Davoodi was not detailed. Under cross-examination the main difference in the training systems alleged appeared to be the time taken. (Transcript PN516 - PN525) If “mixed functions” was paid for training in 2006 as Ian Morley says, it is possible that Arnotts’ practice, in this instance, was different.

[63] I found the Snack Brand witnesses, Ms Derwash, Mr Able and Ms Ali consistent, under cross-examination, with their witness statements. They all denied that a “mixed functions” payment had been made in the way claimed by the AWU. Ms Derwash explained the training system in this way:

“[931] THE DEPUTY PRESIDENT: Can I just ask you, reading your witness statement, Mrs Derwash, is it right in characterising it that you see the training and assessment process that operates as being on the one hand more formal training for new employees, which you deal with in paragraphs 9 to 12, and then for existing employees, it’s the buddy system, loosely described? Is that a fair characterisation?---I think all the training and assessment that takes place on site is formal to a degree. It just varies in terms of where the focuses are. So a new employee, the focus would be on familiarising them with the core elements, and I think it’s by default the nature of how we progress people through the classification structure that the technical element doesn’t come in, or the job task-based assessment doesn’t come in until later. So they’re both equally important but it’s not until you spent time and have to go through that application process that you can go and do a more technical assessment, but it’s all formal, whether it’s question and answer based or demonstrate how you would use that.

[932] And it all leads to some formal assessment at the end?---The core competency assessment - if a team member has returned that assessment to myself and I’m not satisfied with the responses in the assessment, then I will give it back to them and say, “Come back to me with a more valid response,” or, “Speak to somebody in quality who can help you understand that element better,” or safety or whatever it might be.”

[64] I accept that Snack Brands have described a system of training that applies at Smithfield, whatever the level of the employee. Even though the Agreement could have been drafted in a better way, it does make it clear in clause 27.3 that training is a role for all employees.

[65] Despite questions from me, there was no definitive material put by the parties about the cost of granting the AWU’s claim. Accordingly, it is not a matter I have specifically taken into account.

[66] In summary:

(a) I dismiss the AWU’s claim for a “mixed functions” payment for employees who train other employees as set out in [36] above.

(b) I accept that the descriptions of the training system provided by Snack Brands in Exhibits R8 and R10 are accurate and appropriate. They should be applied and implemented on site from the date of this decision. Ultimately, they should be incorporated into the Agreement unless the parties decide to amend them in the next Agreement negotiations.

(c) The Agreement expires in February 2016. Its terms should be revised to address the issues raised in this case. For example, the classification structure should be revised to reflect the role of training across the classifications.

(d) It may be that the classification structure and rates do not adequately reflect the value to Snack Brands of the employees’ roles in training. However, that is a matter for discussion in the Agreement negotiations.

DEPUTY PRESIDENT

Appearances:

S. Crawford for the Australia Workers’ Union

F. Rodriguez with M. Mead for Snack Brands.

Hearing details:

Sydney:

2013

December 5.

2014

February 27 (inspection), 28;

March 11.

Final Written Submissions:

2014

March 17 (Snack Brands), 18 (Australian Workers’ Union).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550183>