Thompson v Freshfood Management Services Pty Ltd
[2023] FedCFamC2G 743
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thompson v Freshfood Management Services Pty Ltd [2023] FedCFamC2G 743
File number(s): SYG 2620 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 August 2023 Catchwords: INDUSTRIAL LAW – application for alleged contravention of terms of enterprise agreements – whether applicant was covered by the relevant enterprise agreements – whether if covered the work the applicant was engaged to perform fell within one of three classifications specified by the enterprise agreements – applicant covered by the enterprise agreements and fell within one of the three classifications – whether the calculation of continuous service for the purpose of determining redundancy payable under an enterprise agreement includes the continuous service of casual employees – the continuous service of casual employees does count – matter listed to make orders giving effect to reasons for judgment and to make directions on the question of penalty. Legislation: Fair Work Act 2009 (Cth) ss 12, 22, 50, 51, 52(1), 53(1), 54, 57(1), 172(2), 185(1), 186, 187, 193
Clerks – Private Sector Award 2010 cls 3.1, 4.1
Food, Beverage and Tobacco Manufacturing Award 2010 cls 3, 4.1, 4.3, 4.7, Sch B
Manufacturing and Associated Industries and Occupations Award 2010 cl 4.1
Cases cited: AMWU v Donau Pty Ltd [2016] FWCFB 3075
James Cook University v Ridd [2020] FCAFC 123
Joyce v Christoffersen (1990) 26 FCR 261
Kucks v CSR Ltd (1996) 66 IR 182
Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713
Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84
Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWASum 1767
Unilever Australia Trading Limited v AFMEPKIU known as the AMWU [2018] FWCFB 4463
Division: Fair Work Number of paragraphs: 142 Date of last submission/s: 14 August 2023 Date of hearing: 7 and 8 February 2022, and 29 April 2022 Place: Sydney Counsel for the Applicant: Ms L Reid, by video Solicitor for the Applicant: Turner Freeman Lawyers Counsel for the Respondent: Mr R Moore, by video Solicitor for the Respondent: Hospitality Legal Pty Ltd ORDERS
SYG 2620 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLAVIA THOMPSON
Applicant
AND: FRESHFOOD MANAGEMENT SERVICES PTY LTD
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 August 2023
THE COURT ORDERS THAT:
1.The matter is listed for directions at 9:30 am on 8 September 2023 to make orders to give effect to reasons for judgment and to make directions on the question of penalty.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In this proceeding the applicant, Ms Thompson, claims that, during her employment with the respondent (FMS) from November 2014 to 8 May 2020 (Relevant Period), she was employed as a “production . . . non-administrative” person within the meaning of each coverage clause of four enterprise agreements that were in force at different times during the Relevant Period (Enterprise Agreements); in that role Ms Thompson performed the functions of a “Level 5” employee or, in the alternative, a “Level 4” employee or, in the alternative, a “Level 3” employee, described in Schedule B to the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Award); but FMS did not pay Ms Thompson the amounts it ought to have paid to her under the Enterprise Agreements as a Level 5 or Level 4 or Level 3 “production . . . non-administrative” person. For these reasons Ms Thompson claims FMS contravened terms of the Enterprise Agreements and, therefore, s 50 of the Fair Work Act 2009 (Cth) (FW Act).
FMS disputes Ms Thompson’s claims. FMS contends that Ms Thompson’s employment was covered by the Clerks – Private Sector Award 2010 (Clerks Award) or, alternatively, by the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). FMS so contends, even though FMS did not pay Ms Thompson wages and other amounts by reference to any award. FMS instead contends that it paid to Ms Thompson amounts that have discharged, or which are available to be applied to discharge amounts it was or is liable to pay Ms Thompson under the Clerks Award or, in the alternative, under the Manufacturing Award.
The principal question that arises, therefore, is whether FMS employed Ms Thompson as a Level 5 or a Level 4 or a Level 3 “production . . . non-administrative” person and, for that reason, she was covered by the Enterprise Agreements. The determination of this question turns on the identification of the activities FMS engaged Ms Thompson to perform, and which she did perform; the proper construction of the expression “production . . . non-administrative persons” that appears in the covering clauses of each of the Enterprise Agreements; and, assuming the Enterprise Agreements applied, the proper construction of the descriptions of the “Level 5”, “Level 4”, and “Level 3” classifications given in Schedule B to the Food Award. An additional question arises if I find the Enterprise Agreements covered Ms Thompson; and that concerns the application of the redundancy provisions of the last of the Enterprise Agreements that applied to Ms Thompson.
To be in position to determine these questions, it will be necessary, first, to set out the statutory provisions that are relevant to Ms Thompson’s claims, and some of the principles that are relevant to construing the Enterprise Agreements; second, to identify the business FMS conducted during the Relevant Period, and the premises from which it conducted its business; third, to identify the Enterprise Agreements and awards that are or may be relevant to Ms Thompson’s employment; and fourth, set out the effect of the evidence relevant to the terms on which FMS engaged Ms Thompson to perform work, and the work she did perform.[1]
STATUTORY PROVISIONS AND PRINCIPLES OF CONSTRUCTION
[1] There is little dispute in the evidence about the terms on which FMS engaged Ms Thompson to perform work, and the work she did perform. In those circumstances, unless the context suggests otherwise, all unqualified statements of fact I state in describing the work Ms Thompson performed reflect my findings of the matters I state.
FW Act
I begin with s 50 of the FW Act, which provides that a “person must not contravene a term of an enterprise agreement”.
An “enterprise agreement” means a “single-enterprise agreement” or a “multi-enterprise agreement”.[2] A “single-enterprise agreement” is an enterprise agreement “made as referred to in” s 172(2) of the FW Act.[3] That subsection relevantly provides that an employer may make an enterprise agreement with “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. Subsection 172(1) of the FW Act specifies the “permitted matters” that may be the subject of an enterprise agreement.
[2] FW Act, s 12
[3] FW Act, s 12. It is unnecessary to refer to provisions that apply to any “multi-enterprise agreement” because each Enterprise Agreement is a “single-enterprise agreement”.
If an enterprise agreement is made, a “bargaining representative for the agreement” must apply to the Fair Work Commission (FWC) for approval of the agreement.[4] The FWC must approve an enterprise agreement if it is satisfied the requirements specified in s 186 and s 187 of the FW Act are met. One of these requirements is that “the agreement passes the better off overall test”.[5] An enterprise agreement (that is not a “greenfields agreement”) passes “the better off overall test” in the circumstances provided for by s 193(1) of the FW Act, namely, where each “award covered employee” (as defined in s 193(4)) and each “prospective award covered employee” (as defined in s 193(5)) “would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee”.
[4] FW Act, s 185(1)
[5] FW Act, s 186(2)(d)
An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement “applies to the person”; and an enterprise agreement does not give an entitlement to a person unless the agreement “applies to the person”.[6] An enterprise agreement “applies to an employee, employer or employee organisation” if the agreement is “in operation”; the agreement “covers” the employee, employer, or organisation; and no other provision of the FW Act applies, or has the effect, that the agreement does not apply to the employee, employer, or organisation.[7] An enterprise agreement “covers” an employee or employer “if the agreement is expressed to cover (however described) the employee or the employer”.[8]
[6] FW Act, s 51
[7] FW Act, s 52(1)
[8] FW Act, s 53(1)
An enterprise agreement comes into effect in the circumstances provided for in s 54(1) of the FW Act, and ceases to operate in the circumstances provided for in s 54(2). When an enterprise agreement is in operation, a modern award does not apply to an employee in relation to particular employment of the employee.[9]
[9] FW Act, s 57(1)
Principles of construction
There are two classes of instruments I am, or may be required to construe. The first is the Food Award, the Clerks Award, and the Manufacturing Award. There are well-established principles for construing awards; and the following passage from the judgment of Madgwick J in Kucks v CSR Ltd has often been referred to.[10]
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 more 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.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
[10] Kucks v CSR Ltd (1996) 66 IR 182, at page 184
The second class of instrument I am required to construe – the Enterprise Agreements – is a single-enterprise agreement. The first point to note about an enterprise agreement is that it “is an agreement in name only”.[11]
Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to “make” an enterprise agreement are the employer and “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be “made”. But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a “party” to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.
[11] Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84, at [88]
The second point to note is that the principles of construction that are applied to enterprise agreements are the same as those that are applied to construing awards. That is apparent from the following statement of the principles for construing enterprise agreements given by the Full Federal Court in James Cook University v Ridd:[12]
[12] James Cook University v Ridd [2020] FCAFC 123, at [65]
(i)The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] IRCA 166; [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv)Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi)A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
FMS’S BUSINESS AND CONCORD SITE
FMS’s business
FMS is in the business of manufacturing and selling a number of brands of coffee on and from a site in Concord (Concord Site),[13] and has been in that business since 1998 when FMS acquired it from Unilever Australia Ltd (Unilever). The coffee products FMS sells include 1kg packs of Robert Timms branded coffee beans, brick packs of Robert Timms branded ground coffee beans, Robert Timms branded plunger bags and coffee bags, Bushells branded coffee essence, Bushells branded Turkish coffee, Bushells and Robert Timms branded single serve coffee packs, Bushells Instant Coffee, Bushells New Zealand Instant (espresso and granulated), Robert Timms Granulated and espresso coffee, and Robert Timms freeze-dried coffee.[14]
[13] Affidavit C A Standley 18.10.2021, [7]. For ease of expression I will use the present tense when describing FMS’s business. Unless I state, or the context suggests, otherwise, my use of the present tense should be read as referring to FMS’s business as it existed during the Relevant Period.
[14] Affidavit F Thompson 14.09.2021, [102]
Raw materials necessary for the manufacture of FMS’s products are delivered to the Concord Site. These include liquid sugar, soup range (for use in the “cafe bar” line of products), caramel (used in coffee essence), hot chocolate powder, agglomerated coffee (for use in products like milk coffee drinks); some types of instant coffee distributed under the Robert Timms brand; maltodextrin; and freeze dried coffee.[15] Most of the products that are produced on the Concord Site are also packaged on site. There are, however, a number of product lines that are packaged by third party co-packers. These product lines, which are referred to as “co-packing materials”, consist of raw material FMS receives from overseas or from third parties in bulk. The only products FMS produces or manufactures at the Concord Site that are sent to third party co-packer companies are roasted coffee beans, Bushells instant coffee single serve sachets, Robert Timms instant coffee single serve sachets, and Bushells New Zealand products (espresso, instant and granulated).[16]
[15] Affidavit F Thompson 14.09.2021, [103]
[16] Affidavit F Thompson 14.09.2021, [103], [104]
As at October 2021, FMS’s workforce comprised 21 managerial employees, 18 administrative employees, 18 sales, marketing, and finance employees, and 61 non-administrative production, maintenance, and warehouse employees.[17] The manufacture of instant coffee is a 24 hour seven days a week operation; and, until 2018, the production of coffee bags was also a 24 hour seven days a week operation.[18]
[17] Affidavit C A Standley 18.10.2021, [10]
[18] Affidavit F Thompson 14.09.2021, [107]
The Concord Site
The Concord Site contains two buildings.[19] One is a large, seven storey building with a prominent chimneystack. It is known as the “Bushells Building”. The other building is known as “Freshfood House”; it is a two storey administration building situated opposite the Bushells Building. Until around 2008 Freshfood House housed employees from FMS’s Finance Department; but from around 2008 Freshfood House largely remained vacant until 2015, when FMS’s Chief Executive Officer moved his office, and his personal assistant’s office, there.[20]
[19] Ms Standley FMS’s human resources manager, annexes to her affidavit of 18 October 2021 a copy of the floor plans of the ground floor, lower ground floor, and the first three floors of the Bushells Building.
[20] Affidavit F Thompson 14.09.2021, [17]-[21]
The ground floor and lower ground floor of the Bushells Building are made up of various warehousing and production areas.[21] The first floor of the Bushells Building contains a number of distinct areas. There is an office area which houses FMS’s sales, finance, payroll, human resources, management, and marketing departments. This area also houses the Commodities Department.[22] Persons employed within the Commodities Department engage in sensory testing of FMS’s products.[23] “Sensory testing” is the evaluation of a product or of a commodity by use of the human senses of taste, smell, sight, and touch. Everything that is produced, packed, received, or used in the coffee manufacturing plant at the Bushells Building is subject to sensory testing.[24]
[21] Affidavit F Thompson 14.09.2021, [22]
[22] Affidavit F Thompson 14.09.2021, [23]
[23] Affidavit F Thompson 14.09.2021, [36]
[24] Affidavit F Thompson 14.09.2021, [39]
The other areas of the first floor of the Bushells Building comprise two boardrooms, production and storage areas (which include a Turkish coffee pulverising area, an area for bins containing coffee, and an area that houses instant coffee drying operations), and a “Quality Assurance Lab” (QA Lab). The expression “QA Department” (QA Department) appears in the evidence; and this is used to refer to FMS’s Quality and Technical Assurance Department.[25] Coffee beans are roasted on the second floor of the Bushells Building; and the instant coffee plant is located on the third floor. The fourth, fifth, and sixth floors house machinery, such as the “Agglomerator”, the “Dryer”, and the “Roaster”; and silos.[26]
[25] Affidavit F Thompson 14.09.2021, [42]; Affidavit C A Standley 18.10.2021, [122]
[26] Affidavit F Thompson 14.09.2021, [30]-[32]
According to Ms Thompson, the area of the first floor that contains the Commodities Department, and the sales, payroll, human resources, and management functions, were colloquially referred to as “the office area”; and the rest of the first floor was “colloquially” referred to as the “factory area”.[27] A red door separates the “office area” from the Turkish coffee pulverising area and, hence, from “the factory area” on the first floor of the Bushells Building.[28] By “colloquially” I find Ms Thompson to intend to say that FMS employees differentiated between two areas of the first floor by referring to one area as the “office area”, and the other as the “factory area”. To gain access to the factory area, a person must wear closed shoes, a lab coat, and a hairnet, and must have a security pass.[29]
[27] Affidavit F Thompson 14.09.2021, [27]
[28] Affidavit F Thompson 14.09.2021, [28]
[29] Affidavit F Thompson 14.09.2021, [29]
Mr Harry Poeltl, FMS’s Business Director for its Australian and New Zealand operations, deposes that he does not agree with Ms Thompson’s delineation of the first floor as between “factory” and “office” areas.[30] Mr Poeltl says:[31]
The QA Lab and the Office area, are not viewed as part of the production function at the Concord site. Both these areas are quite separate from the production function at the Concord site. Both fell within my initial responsibility of Operational Services which is also called Operations Support.
[30] Affidavit H J Poeltl 18.10.2021, [44]
[31] Affidavit H J Poeltl 18.10.2021, [45]
This evidence does not address Ms Thompson’s description of the areas that comprised the first floor of the Bushells Building; and it does not address Ms Thompson’s evidence that the first floor is comprised of two areas that were colloquially known as the “office area” and the “factory area”. In any event, in evidence given under cross-examination, Mr Poeltl accepted that:
(a)it was FMS’s policy that every person entering a production area must wear a hairnet and beard net if required and make sure all hair is fully covered;[32]
(b)a red door separates the office area from other areas on the first floor of the Bushells Building;[33] and to get “from production into the office” a person needed to swipe a security card, but to “get through the door from the office to production” did not require the swiping of a security card;[34]
(c)once a person passed through the red door on the first floor, that person was in the production area;[35] and
(d)the QA Lab is on the non-office side of the red door.[36]
[32] 08.02.2022 T90.20
[33] 08.02.2022 T90.45
[34] 08.02.2022 T91.5
[35] 08.02.2022 T91.20
[36] 08.02.2022 T91.25
I find that the first floor did contain two broad areas separated by a red door. One of those areas housed the QA Lab, and a production area that could only be accessed by a person wearing closed shoes, a lab coat, and a hairnet, and holding a security pass. Nothing turns on whether this area was called the “factory area” and the remaining areas of the first floor the “office area”. Given the nature of the activities that occurred in the respective two broad areas, however, I accept Ms Thompson’s evidence that employees of FMS used “factory area” to refer to the area that housed the production area and the QA Lab, and “office area” to refer to the remaining areas of the first floor. Mr Poeltl, in evidence given under cross-examination, referred to the non-office area as the “production area”.
Production areas and lines
FMS manufactures and packages products in distinct areas. In particular:[37]
(a)coffee bags and plunger bags are produced in the “Coffee Bag Room”;
(b)instant coffee, granulated coffee, and Turkish Coffee are produced in the “Instant Coffee Packing Section” (being lines, 1, 2, and 3);
(c)roast and ground coffee are produced in the “Roast and Ground Packing line” (being line 7); and
(d)coffee essence is produced in the “Essence Room”.
[37] Affidavit F Thompson 14.09.2021, [118]
Every two hours in the course of their shifts, production employees complete a pro forma document known as a “Production Checklist” (Production Checklist). The employee completes the Production Checklist in relation to a sample the employee takes off the line. The Production Checklist requires the employee to record in relation to the sample the date of production and the “best before” date; the name of the product; the batch code; the weight and oxygen reading of the product; whether the labelling is correct; whether the caps are properly sealed; whether there has been any glass breakage; and whether the line was clean before starting production.[38] When the employee completes the Production Checklist, he or she leaves the sample, together with the Production Checklist, in an area provided for that purpose, to be collected for the purpose of testing.[39]
[38] Affidavit F Thompson 14.09.2021, [115]
[39] Affidavit F Thompson 14.09.2021, [116]
ENTERPRISE AGREEMENTS
From around 1998 FMS has been party to a number of enterprise and collective agreements made under State industrial laws, the Workplace Relations Act 1996 (Cth), and the FW Act. Relevant to this proceeding are the Enterprise Agreements, which are as follows:
(a)An enterprise agreement made in 2010 (2010 EA) between FMS, on the one hand, and, on the other, the National Union of Workers (NUW), the Australian Manufacturing Workers Union (AMWU), and the Electrical Trade Union.[40] The 2010 EA applied from 22 November 2010 to 15 July 2015.[41]
(b)An enterprise agreement made in 2014 (2014 EA) between FMS, on the one hand, and, on the other, NUW, AMWU, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).[42] The 2014 EA applied from 16 July 2015 to 12 January 2017.[43]
(c)An enterprise agreement made in 2016 (2016 EA) between FMS, on the one hand, and the NUW, AMWU, and CEPU.[44] The 2016 EA applied from 13 January 2017 to 1 April 2020.[45]
(d)An enterprise agreement made in 2019 (2019 EA) between FMS, on the one hand, and the NUW, now named United Workers Union (New South Wales Branch) (UWU), AMWU, and CEPU.[46] The 2019 EA applied from 2 April 2020, and was in force on 8 May 2020, when Ms Thompson’s employment with FMS ended.[47]
[40] Affidavit C A Standley 18.10.2021, [30]; Affidavit S Howe 13.09.2021, [16]; annexure “SH-5”, pages 105-148
[41] Statement of Claim, [20]
[42] Affidavit C A Standley 18.10.2021, [31]; Affidavit S Howe 13.09.2021, [17]; annexure “SH-6”, pages 211-260
[43] Statement of Claim, [23]
[44] Affidavit C A Standley 18.10.2021, [32]; Affidavit S Howe 13.09.2021, [18]; annexure “SH-7”, pages 273-330
[45] Statement of Claim, [26]
[46] Affidavit C A Standley 18.10.2021, [33]; Affidavit S Howe, [19]; annexure “SH-8”, pages 478-536
[47] Statement of Claim, [29]
The Enterprise Agreements contain substantially the same terms.
Coverage clauses of Enterprise Agreements
The coverage clause of the 2010 EA is stated in cl 5.1, which provides as follows:
Subject to clause 6, Period of Operation, the Agreement shall apply to all production, maintenance & warehouse non-administrative persons:
(a)who are eligible to be financial members of the NUW, AMWU or CEPU (ETU NSW branch); and
(b) employed by [FMS] at [the Concord Site].
Relevant to Ms Thompson’s claims are the rules governing the eligibility of financial membership of the NUW and UWU, being the new name of the NUW. The relevant rules are contained in r 5(G)(i)(e) of the “Rules for the National Union of Workers”, which provides:
The Union shall consist of persons who are bona-fide employees, wholly or partly engaged in any capacity in the manufacture or preparing for sale of . . . (e) condiments and cereal foods, and all other articles, goods and preparations usually or commonly known as Grocers’ sundries including arrowroot, baking powder, barley, bicarbonate of soda, bird seed, borax, brose meal, carraway seeds, cassia, castor sugar, chicory, chicorine, chillies, chocolate, cinnamon, citric acid, citron peel, cloves, cocoa, coffee, coffee essence, coriander seed, cornflour, cornina, cream of tartar, cummin seed, curry powder, custard powder, copras oils, condensed milk, dessicated coconut, digestive meal, epsom salts, fennel, fenugreek, flavouring essences, graham flour, groats, ginger, haricot beans, hommell, hemp seed, icing sugar, jellies, lemon peel, lentils, linseed, linseed meal, macaroni, mace, magnesia, meal wheat, malt preparations, maize meal, millet seeds, mustard, nutmegs, oatmeal, oats, orange peel, peas, pepper, pimento, patent foods, rape seed, rice, sago, sago flour, self-raising flour, spices, semolina, sulphur, tapioca, tartaric acid, vermicelli, . . .
Clause 4 of the 2010 EA identifies the persons who are bound by that agreement, and this includes:
[a]ll non-administrative employees engaged directly by [FMS] in the production, maintenance and warehouse functions whether members of the NUW, the AMWU or the ETU, or not, whose employment is, at any time, when the Agreement is in operation, subject to the Agreement (“the Employees”).
The coverage specified by cl 4.1 of each of the 2014 EA, the 2016 EA, and the 2019 EA is substantially identical with the coverage provided for by cl 5.1 of the 2010 EA (I will collectively refer to the coverage clauses of the Enterprise Agreements as the EA covering clauses); and cl 3.1 of each of the 2014 EA, 2016 EA, and 2019 EA binds substantially the same class of persons as are bound by cl 4 in the 2010 EA. (I will collectively refer to these clauses as the EA parties bound clauses.)
Parent Awards of Enterprise Agreements
Each of the Enterprise Agreements contains a clause that identifies the “parent awards” (Parent Awards) and specifies the relationship between the respective terms of the relevant Enterprise Agreement and the Parent Awards.[48] The clauses are substantially the same, and it will be sufficient if I set out the relevant part of cl 7 of the 2019 EA, which provides as follows:
7.1The terms of the Food, Beverage and Tobacco Manufacturing Award, 2010 (MA000073); the Manufacturing and Associated Industries and Occupations Award, 2010 (MA000010) and the Storage Services and Wholesale Award, 2010 (MA000084) [the Award(s)], as varied from time to time, are incorporated into this Agreement. If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the incorporated Award term to the extent of the inconsistency.
. . . .
7.3Upon incorporating Award terms into the Agreement the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of an award. So, for example, the loadings, penalties and allowances in the Award apply to the rates of pay due under the Agreement, not the Award rate.
[48] Clause 8 of the 2010 EA, and clauses 7 of each of the 2014 EA, 2016 EA, and 2019 EA.
It would be convenient at this point to set out the coverage and classifications provided for by two of the Parent Awards, namely, the Food Award and the Manufacturing Award.
Food Award
Clause 4.1 of the Food Award provides that it covers “employers throughout Australia in the food, beverage and tobacco manufacturing industry and their employees in the classifications in this award to the exclusion of any other modern award”. Clause 4.3 provides that the Food Award “does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees”.
Clause 4.1 of the Food Award comprises two elements. The first is employers and their employees who are “in the food, beverage and tobacco manufacturing industry”. The expression “food, beverage and tobacco manufacturing” is defined in cl 3.1 as follows:
food, beverage and tobacco manufacturing means the preparing, cooking, baking, blending, brewing, fermenting, preserving, filleting, gutting, freezing, refrigerating, decorating, washing, grading, processing, distilling, manufacturing and milling of food, beverage and tobacco products, including stock feed and pet food, and ancillary activities such as:
(a) the receipt, storing and handling of ingredients and raw materials to make food, beverage and tobacco products, including stock feed and pet food;
(b)the bottling, canning, packaging, labelling, palletising, storing, preparing for sale, packing and despatching of food, beverage and tobacco products, including stock feed and pet food; and
(c) the cleaning and sanitising of tools, equipment and machinery used to produce food, beverage and tobacco products, including stock feed and pet food.
The second element of cl 4.1 is that the employees must not only be employees of employers in the “food, beverage and tobacco manufacturing industry”; they must be employees “in the classifications in” the Food Award. That directs attention to Schedule B to the Food Award. Item B.1 of that Schedule provides that the “classification structure and definitions set out in this Schedule apply to employees covered by this award, except where otherwise specified”. Schedule B specifies six levels. Although Ms Thompson relies only on the Level 3, Level 4, and Level 5 classifications, it would be relevant to set out all six levels:
Level 1 (78% relativity to the tradesperson)
(a)An employee at Level 1 has less than three months’ experience in the industry or enterprise, and does not possess recognised enterprise or industrial or prior learning experience and/or skills sufficient for appointment to Level 2 or above. Provided that the length of service required to advance to Level 2 for a seasonal employee is four weeks and for a casual employee is 152 hours.
(b) Competencies
An employee at Level 1 performs general duties essentially of a manual nature, and:
(i) exercises minimal judgment;
(ii) works under direct supervision; and
(iii)is undertaking up to 38 hours’ induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
Level 2 (82% relativity to the tradesperson)
(a) An employee at Level 2 is an employee who has either:
(i)completed a structured induction program over three months or for such shorter period as is necessary to reach the required level of competency for appointment to Level 2; or
(ii)has recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 2.
(b) Competencies
An employee at Level 2 performs a range of general duties essentially of a manual nature and to the level of the employee’s competency, and:
(i) exercises limited judgment;
(ii) works under direct supervision;
(iii)is undertaking structured training to enable the employee to work at Level 3.
Level 3 (87.4% relativity to the tradesperson)
(a) An employee at Level 3 is an employee who has either:
(i)completed an Australian Qualifications Framework (AQF) Certificate 1 in Food Processing; or
(ii)has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 3.
(b) Competencies
An employee at Level 3 performs a range of duties including specialised work, and:
(i) may exercise judgment within defined procedures;
(ii) works under general supervision;
(iii)may undertake structured training to enable the employee to work at Level 4;
(iv)is responsible for the quality of the employee’s own work within the limits of Level 3;
(v)assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers or an accredited training provider.
Level 4 (92.4% relativity to the tradesperson)
(a) An employee at Level 4 is an employee who has either:
(i) completed an AQF Certificate 2 in Food Processing; or
(ii)has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 4.
(b) Competencies
An employee at Level 4 performs work above and beyond the competencies of a Level 3 employee, and:
(i) exercises judgment;
(ii) works under general supervision;
(iii)may undertake structured training to enable the employee to work at Level 5 level;
(iv)is responsible for assuring the quality of the employee’s own work;
(v)assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers or an accredited training provider.
Level 5 (100% relativity to the tradesperson)
(a) An employee at Level 5 is an employee who has either:
(i) completed an AQF Certificate 3 in Food Processing; or
(ii)has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5.
(b) Competencies
An employee at Level 5 performs work above and beyond the competencies of a Level 4 employee, and:
(i) understands and applies quality control techniques;
(ii) has good interpersonal and communication skills;
(iii)is able to inspect products and/or material for conformity with established operational standards;
(iv) exercises judgment and decision making skills;
(v)works under general supervision either individually or in a team environment;
(vi)may undertake structured training to enable the employee to work at Level 6.
Level 6 (105% relativity to the tradesperson)
(a)An employee at Level 6 is an employee who has completed the following training requirement above that for Level 5:
(i) two competency units from the Associate Diploma of Food Technology (ADFT); or
(ii) six competency units from the Advanced Certificate of Food Technology (ACFT); or
(iii) six competency units above the requirement for Level 5; or
(iv) equivalent.
(b) Competencies
An employee at Level 6 performs work above and beyond a Level 5 and to the level of the employee’s training:
(i) exercises skills attained through satisfactory completion of the training prescribed for Level 6;
(ii) exercises discretion within the scope of Level 6;
(iii) works under general supervision either generally or in a team environment;
(iv) understands and implements quality control techniques;
(v)provides technical guidance and assistance as part of a work team;
(vi) exercises skills relevant to the specific requirements of the enterprise at a level higher than a Level 5.
Clause 4.7 of the Food Award provides that it does not cover employees covered by the awards it specifies. These awards include the Clerks Award and the Manufacturing Award. Clause 4.1 of the Clerks Award is as follows (emphasis added):
This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:
(a) an employer bound by a modern award that contains clerical classifications; or
(b) an employee excluded from award coverage by the Act.
Clause 3.1 of the Clerks Award provides that “clerical work”:
includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk
Manufacturing Award
Clause 4.1 of the Manufacturing Award provides that it covers “employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees”. The expression “Manufacturing and Associated Industries and Occupations” is defined in cl 4.9 to mean:
(a) the following industries and parts of industries:
(i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:
•the products, structures, articles, parts or components set out in clause 4.10; or
•the materials or substances set out in clause 4.10; or
•any products, structures, articles, parts or components made from, or containing, the materials or substances set out in clause 4.10.
(ii) the coating, painting, colouring, varnishing, japanning, lacquering, enamelling, porcelain enamelling, oxidising, glazing, galvanising, electroplating, gilding, bronzing, engraving, cleaning, polishing, tanning, dyeing, treatment and finishing of any of the items referred to in clause 4.9(a)(i).
(iii) the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of:
•any of the items referred to in clause 4.9(a)(i); or
•floor covering; or
•plant, equipment and buildings (including power supply) in the industries and parts of industries referred to in clauses 4.9(a)(i) and (ii); or
•plant, equipment and buildings (including power supply) in any other industry.
(iv) mechanical and electrical engineering.
(v) space tracking.
(vi) farriery (other than in the racing industry).
(vii) bottle merchants.
(viii) the printing and processing of photographs from film.
(ix) every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries, parts of industries or occupations.
(x) handling, sorting, packing, despatching, distribution and transport in connection with any of the foregoing industries or parts of industries.
(b)the provision of any of the operations or services set out in clause 4.9(a) on a contract basis by one business to another business, where the first business is independent of the second business:
(c) the following occupations:
(i) maintenance employees in the engineering streams.
(ii) technical workers.
(iii) draughtspersons.
(iv) production planners.
(v) trainee engineers.
(vi) trainee scientists.
(vii) engine drivers.
Classification provided for in Enterprise Agreements
Each of the Enterprise Agreements specifies the wages of two classes of employees – “Maintenance Employees”,[49] and “Production/Warehouse Employees” (“Production Employees” in the 2010 EA).[50] The wages specified in each of the Enterprise Agreements for “Production/Warehouse Employees” differ according to whether the employee falls within one of grades 1, 2, 3, or 4, or is a “Team Facilitator” or an “Area Supervisor”. These classifications are not defined in the Enterprise Agreements; but their meaning is suggested by paragraph (a) of appendix 2 to each of the Enterprise Agreements, which provides that “[c]urrently classifications follow the award classifications”. That may be taken to be a reference to the classification provided for by the Parent Awards, namely the Food Award, the Manufacturing Award, and the Clerks Award.
[49] Clause 26 of the 2010 EA, and clause 25 of each of the 2014 EA, 2016 EA, and 2019 EA.
[50] Clause 27 of the 2010 EA, and clause 26 of each of the 2014 EA, 2016 EA, and 2019 EA.
It is admitted on the pleadings that the “award classifications” to which paragraph (a) of appendix 2 to each of the Enterprise Agreements refers include the classifications specified in the Food Award. In particular, it is admitted that the “Area Supervisor”, “Team Facilitator”, “Grade 4”, “Grade 3”, “Grade 2”, and “Grade 1” specified in cl 27 of the 2010 EA, and cl 26 of each of the 2014 EA, 2016 EA, and 2019 EA, follow the “Level 6”, “Level 5”, “Level 4”, “Level 3”, “Level 2” and “Level 1” classifications under the Food Award.[51] Relevant to Ms Thompson’s claims are the Level 3, Level 4, and Level 5 classifications, which I have reproduced above.
MS THOMPSON’S EMPLOYMENT
[51] Amended Statement of Claim, [22], [25], [28], [31]; Amended Defence, [22], [25], [28], [31]
Ms Thompson commences employment
Ms Thompson commenced employment with FMS in around August 2001 as a casual sensory assistant in the Commodities Department.[52] Ms Thompson generally worked two days per week, but sometimes she worked extra days if other employees were on leave or did not come to work.[53]
[52] Affidavit F Thompson 14.09.2021, [12]
[53] Affidavit F Thompson 14.09.2021, [13]
Ms Thompson reported to Mr Matthew Thomas, who was the head of the Commodities Department.[54] As a sensory assistant, Ms Thompson was required to prepare samples for sensory testing. That involved Ms Thompson grounding green beans after they had been roasted, weighing out between 30 to 40 samples of 13 grams of the grounded beans, and pouring hot water on each of the samples.[55]
[54] Affidavit F Thompson 14.09.2021, [35]
[55] Affidavit F Thompson 14.09.2021, [40]
30 September 2008 – letter of offer
By letter dated 30 September 2008 FMS offered Ms Thompson the position of “Sensory Assistant” on the terms set out in the letter.[56] Clause 3.1(a) of the letter provided that Ms Thompson was to perform the duties specified in the job description attached to the letter. The job description was divided into a number of sections. One section described the purposes of a “Sensory Assistant” as follows:
•Prepare samples for sensory testing
•Inspect & report on quality of purchased Green Beans and commodities.
•Assist with sensory testing when required.
•Administer and maintain accurate records and samples used for sensory testing.
•Assist with Commodities/QA duties as required.
[56] Affidavit F Thompson 14.09.2021, [15]; annexure “FT-1”
Another section of the job description specified the responsibilities of a Sensory Assistant, which included the following:
•Preparation for sensory evaluation of green bean ‘type’, ‘pre-shipment’ and ‘shipment’ samples. Also soluble coffees and other purchased beverages.
•Preparation for sensory evaluation of WIP and packing line samples.
•Maintain reference samples and identification
•Assist with organisation and maintenance of records of all sample testing, other results and administrative files.
The letter provided that Ms Thompson’s ordinary hours of work would be 30 hours per week, Monday to Friday; that Ms Thompson would be paid at the normal hourly rate of $18, and that she would not be entitled to any additional remuneration for work she may perform outside normal business hours.
July 2012 – Ms Sevilla’s duties
In or shortly before August 2012 Ms Avalina Sevilla, an employee who worked within the QA Lab, announced her retirement.[57] Ms Thompson submits that the tasks Ms Sevilla performed immediately before she resigned are relevant to the functions Ms Thompson submits FMS later engaged her to perform. It will therefore be convenient at this point to refer to the evidence that is relevant to identifying the tasks Ms Sevilla performed. First, there is Ms Thompson’s evidence that Ms Sevilla worked in the QA Lab; she collected production and raw materials samples, and ran tests on them; and she was classified as a “[s]upervisor”.[58]
[57] Affidavit F Thompson 14.09.2021, [63]
[58] Affidavit F Thompson 14.09.2021, [55]-[57]
Second, there is the following evidence Ms Carmen Standley, FMS’s Human Resources Manager, gives in her affidavit.
(a)Ms Sevilla commenced her employment at the Concord Site as a laboratory assistant in around May 1988 on the terms of a letter dated 6 May 1988 from Bushells Pty Ltd.[59] (I infer that Bushells Pty Ltd was a member of a group of companies, the holding company of which was Unilever.)
(b)By letter dated 10 March 1998, after noting that Unilever had agreed to sell its coffee business to FMS, FMS made an offer to Ms Sevilla that she continue her employment with FMS.[60] At that time, cl 1.6 of the Draughting Employees, Planners, Technical Employees, &c. (State) Award excluded employees of Unilever at the Concord Site from the operation of that Award.[61]
Exclusion - Unilever Australia Limited (Unifoods Division) - Employees of Unilever Australia Limited, Unifoods Division, Concord, employed on the Concord site shall be excluded from the terms and conditions of this award so long as they are employees under the terms and conditions of the Industrial Agreement registered pursuant to section 11 of the Industrial Arbitration Act 1940, or any agreement replacing it.
(c)Ms Sevilla’s employment was covered by an enterprise agreement under which she was classified at Level 4.[62]
(d)On about 1 November 2002, FMS increased Ms Sevilla’s remuneration to that of a Level 5 employee in her position of “Senior QA/QC Technologist”. Ms Standley says that “[t]his appears to have coincided with a further increase in her then assigned duties”.[63]
(e)Ms Standley says that “[a]ll of the administration of Ms Sevilla in this fashion by [FMS] as an employee arose from the “grandfathered” position agreed to with her by [FMS] in 1998. I refer to Annexure CS-9”. There is no document in evidence that is marked “Annexure CS-9”. In evidence given to an answer I asked, Ms Standley explained what she meant by “grandfathering”:[64]
She commenced in 1988 and I believe she was – became a union delegate in 1994. Grandfathering is she continued with that same position once – as she was under the enterprise agreement, we were unable to change that. We just continued with that position until she retired.
[59] Affidavit C A Standley 18.10.2021, [50], [51]; annexure “CS-2”
[60] Affidavit C A Standley 18.10.2021, [52], [53]; annexure “CS-3”
[61] The instrument to which cl 1.6 of the Draughting Employees, Planners, Technical Employees, &c. (State) Award refers is not in evidence. Ms Standley does refer to the instrument in paragraph 14 of her affidavit, being a paragraph FMS did not read at the hearing. Ms Standley identifies the instrument as “a State-based enterprise agreement known as the FreshFood Management Services Pty Ltd as a Wholly Owned Subsidiary of Freshfood Australia Holdings Pty Ltd Enterprise Agreement 1998 (the 1998 State EA).”
[62] Affidavit C A Standley 18.10.2021, [55], [56]; annexure “CS-4”.
[63] Affidavit C A Standley 18.10.2021, [57]
[64] 08.02.2022 T84.30
Ms Standley gave the following additional evidence:[65]
Given that the terms of Ms Sevilla’s employment were derived from the then operative agreement, a decision was made based on the changes made by the FW Act to include Ms Sevilla in the agreement making process as a relevant employee in that she would be covered in her particular employment by the proposed enterprise agreement based upon her then classification.
Ms Sevilla was a participant in the agreement making process and was an employee who voted on the proposed agreement.
. . . .
When Ms Sevilla retired in August 2012 her position of Senior QA/QC Technologist was not replaced or filled by FFMS.
[65] Affidavit C A Standley 18.10.2021, [61], [62], [64]
July 2012 – PCFPT Officer Position advertised
On about 25 July 2012, Ms Standley issued a memorandum dated 25 July 2012 which invited applicants “to apply for the position of: QA/QC Support” (PCFPT Officer Position memorandum).[66] The PCFPT Officer Position memorandum stated that the role is important in verifying FMS’s food and safety programs. The PCFPT Officer Position memorandum also stated that the successful candidate would perform the following functions:
[66] Affidavit F Thompson 14.09.2021, [68]; annexure “FT-2”
•Conduct regular production line QA audits performing packaging integrity. Fill weight and residual oxygen checks.
•Perform daily calibration of all scales used for check weighing.
•Collect QA samples left by production and arrange representative samples to be sent to commodities for tasting by completing commodities Quality Report Book.
•Retain daily, a representative sample of manufactured product as a laboratory file sample.
•Sample, test and record in QA Data Base all incoming raw material deliveries. Arrange tasting by commodities and retention of a file sample with certificate of analysis.
•Sample, test and record in QA Data Base all incoming deliveries of subcontract manufactured product. Arrange tasting by commodities and retention of a file sample with certificate of analysis where applicable.
•Provide general technical support to Production and Operational Services departments by providing technical information in response to miscellaneous requests.
•Perform calibration tests on Infra Red, Sartorious Moisture Analysers, Cera Tester and Neuhaus Neotec Colour Meters in the Laboratory and ICP Lab.
•Assist Quality Assurance Co-ordinator in performing GMP and HACCP quality audits
On about 25 July 2012 Ms Standley approached Ms Thompson and placed the PCFPT Officer Position memorandum on the desk at which Ms Thompson was working. Ms Standley suggested to Ms Thompson she should read the document and apply for the position referred to in the PCFPT Officer Position memorandum (PCFPT Officer Positon).[67] After speaking with four other employees, Ms Thompson decided to apply for the PCFPT Officer Positon, which she did by completing and submitting an application, and by handing in her resume.[68]
[67] Affidavit F Thompson 14.09.2021, [66], [67]. Ms Standley does not dispute this part of Ms Thompson’s affidavit.
[68] Affidavit F Thompson 14.09.2021, [71], [74]
In her affidavit Ms Standley says the PCFPT Officer Position was “a newly created position”.[69] Ms Standley further says as follows:
(a)When Ms Sevilla retired in August 2012 her position of “Senior QA/QC Technologist was not replaced or filled by” FMS.[70]
(b)The PCFPT Officer Position “was a quite different position to the Senior QA/QC Technologist position held by Ms Sevilla”.[71]
(c)Some of Ms Sevilla’s former duties remained to be performed by the PCFPT Officer Position, “whilst others were either reallocated to other employees, or simply were not to be continued to be performed, or were varied from the manner in which these duties had been performed by Ms Sevilla”.[72]
(d)The duties of the PCFPT Officer Position “had been initially established in consultation with technical services management”.[73]
[69] Affidavit C A Standley 18.10.2021, [70]
[70] Affidavit C A Standley 18.10.2021, [64]
[71] Affidavit C A Standley 18.10.2021, [66]
[72] Affidavit C A Standley 18.10.2021, [67]
[73] Affidavit C A Standley 18.10.2021, [69]
There are two difficulties with this evidence. First, Ms Standley does not identify the tasks Ms Sevilla performed that were “reallocated” to other employees, or the employees to whom they were “reallocated”; and Ms Standley does not identify the tasks Ms Sevilla had been performing but which were no longer to be performed by anyone. Second, although Ms Standley says she drafted the duties attached to the PCFPT Officer Position memorandum “in consultation with the technical services management”, FMS has not adduced evidence from a person within FMS’s “technical services management” about the functions Ms Sevilla carried out, or about the consultations Ms Standley says she had with FMS’s “technical services management” concerning the duties for the PCFPT Officer Position, or about the duties Ms Sevilla performed that had been “reallocated”, or about the identity and position or positions of the person or persons to whom tasks Ms Sevilla had performed had been “reallocated”. Mr Alwin Suwandi, who held the positon of “Technical Services Manager” and who, for that reason, could have given evidence about these matters to which Ms Standley deposes, made an affidavit, but Mr Suwandi does not address those matters. I therefore do not accept Ms Standley’s evidence I set out in paragraph 51of these reasons.
August 2012 interview
Ms Thompson attended an interview with Ms Standley, Ms Karen de Leeuw, and Mr Suwandi (August 2012 interview). According to Ms Thompson, words to the following effect were spoken:[74]
[Ms Standley]: You’ll be doing Avelina’s job but you won’t have Avelina’s job title, because her position is closed and no longer exists. Avelina was in the union and because her position no longer exists, you won’t be able to join the union. This is a non-union position. You can’t join the Union.
Karen:You can join the Union if you want to, but you won’t be entitled to all of the benefits that Avelina had under the enterprise agreement, like pay rises, RDOs and the morning tea breaks. You’ll be under a contract, like people in the office.
[74] Affidavit F Thompson 14.09.2021, [75]
In her second affidavit, Ms Thompson says that during this meeting, Ms Standley said:[75]
You won’t be entitled to pay increases, overtime and RDOs and the other entitlements. You won’t be receiving the same wage as Avelina. You’ll be paid on a monthly, rather than a weekly, basis.
[75] Affidavit F Thompson 10.11.2021, [56]
In her affidavit, Ms Standley accepts she had a meeting with Ms Thompson; but she denies saying words Ms Thompson deposes Ms Standley said. Ms Standley says she did not tell Ms Thompson that she could not join “the union”, although she says she did tell Ms Thompson that the position was not covered by the “FFMS enterprise agreement”, being the 2010 EA. Ms Standley says she told Ms Thompson that the position “was not a production position”; she described the position as an administrative position, and that “the position has been designed to support the technical employees” within the QA Lab; and that “the technical components” that had been previously performed by Ms Sevilla “had been taken out of the position”, and would be performed by the technically qualified employees within the QA Lab.[76] Ms Thompson denies Ms Standley said that the role “was not a production role”, or that the role was an “administrative position”, or that the “position has been designed to support the technical employees”, or that “the technical components had been taken out of the position”.[77]
[76] Affidavit C A Standley 18.10.2021, [127]
[77] Affidavit F Thompson 10.11.2021, [57], [58]
In evidence given under cross-examination Ms Standley said that she did not at the August 2012 interview tell Ms Thompson that the position she was being offered was not a production role,[78] even though in her affidavit Ms Standley deposes she did. Ms Standley also gave evidence that she did not say to Ms Thompson that the position had been designed to support technical employees,[79] even though in her affidavit Ms Standley deposes she said words to that effect.
[78] 08.02.2022 T80.10
[79] 08.02.2022 T80.25
Ms Thompson was also cross-examined about the evidence she gave of the August 2012 interview. It would be convenient, and illuminating, if I set out some of the evidence Ms Thompson gave:[80]
[80] 07.02.2022 T57.10-T58.40
Ms Standley denies that she said at any time that you could not join a union. What do you say to that?‑‑‑That’s incorrect, because she did say it.
Right. She did tell you that the position was not covered by the then FMMS [sic] enterprise agreement – that was the two thousand .....?‑‑‑She just referred to it as the “enterprise agreement”.
Right. Yes. And so you say that her statement was she told you the position was not covered by the enterprise agreement?‑‑‑Yes.
Also told you it was not a production position.?‑‑‑ .....
She told you it was an administrative position?‑‑‑No. No, she just referred to it as at the – as “Avelina’s position”.
..... where is that in your affidavit when you give your first account of this conversation?‑‑‑I just remember her always referring to “Avelina’s position”.
Well, what she – she denies that she says anything about Avelina’s position, does she not?‑‑‑She ..... – that’s how she used – that’s what she used to say. She always used to talk – Avelina’s name was always mentioned.
Yes?‑‑‑“You’ll be doing what Avelina’s doing, and this – and Avelina, and Avelina, you’ll be doing Avelina’s position – you’ll be doing Avelina’s job.”
. . . .
MR MOORE: Well, what she was telling you was that the duties had been taken out of ..... not ‑ ‑ ‑?‑‑‑ ..... because I was doing Avelina’s job.
I’m going to suggest to you she never said that you would be doing Avelina’s job?‑‑‑Yes, she did ‑ ‑ ‑
‑ ‑ ‑ because you do not have – you do not have a Bachelor of Science degree, do you?‑‑‑She did.
No, I asked you a question – ..... Bachelor of Science degree?
HIS HONOUR: Sorry – I missed the question. What’s the question?
MR MOORE: The question was I’m asking Ms Thompson did she have a Bachelor of Science degree?‑‑‑No.
Avelina – do you know Avelina had a Bachelor of Science degree?‑‑‑No, I just thought that she did a laboratory skills course.
And so you have no idea of what Avelina’s qualifications are?‑‑‑Like I said, I heard that she did a laboratory skills course.
Who did you hear that from?‑‑‑One of the workers. Production workers.
Yes. You’ve said that you’ve had actual conversations with Avelina, so did you ever ask her what qualifications she had?‑‑‑No, I didn’t.
Right. See, what I’m suggesting to – you had been told that the job that the job that Ms Avila [sic] had performed or Ms Sevilla had performed was no longer going to be performed any more. There was a new job?‑‑‑No. They just changed the title.
They ..... ‑ ‑ ‑?‑‑‑They just changed the title, but I was still doing the same work as what Avelina was doing.
I’m going to suggest to you they didn’t just change the title. They changed the job?‑‑‑Not really, no. I – no, I disagree with that.
Ms De Leeuw you’ve even got saying this is a new position. That’s your own evidence?‑‑‑New position, yes, they changed the title and that was it.
You don’t say they just changed the title in your affidavit?‑‑‑They changed the title.
Of course; it’s a different position. It’s not the position of a senior technologist in food. It’s ..... ‑ ‑ ‑?‑‑‑She wasn’t a senior technologist.
.....?‑‑‑She was just a QA technician. Her title was QA Technician.
You read Ms Standley’s affidavit?‑‑‑Her title was QA ‑ ‑ ‑
That’s not the question?‑‑‑ ‑ ‑ ‑ Technician. That’s how she used to sign off. That’s how she used to sign her paperwork.
I accept Ms Thompson’s evidence of what was discussed at the August 2012 interview, and the evidence she gave in cross-examination; and I prefer it to the evidence Ms Standley gave to the extent of any inconsistency. Ms Thompson’s account is consistent with three objective facts. Ms Sevilla resigned; the PCFPT Officer Position was offered to Ms Thompson at around the time Ms Sevilla resigned; and there is no evidence, apart from the general evidence of Ms Standley which I have not accepted, that identifies the tasks Ms Sevilla performed that had been “reallocated” to other employees. In these circumstances, it is open to infer, and I find, that the PCFPT Officer Position was created to replace the position Ms Sevilla had occupied; and that the tasks Ms Sevilla performed in the position she occupied were to be performed by the person who would assume the PCFPT Officer Position.
It would be appropriate at this point to say something about the proposition that was put to Ms Thompson in cross-examination, and to which Ms Standley deposes in her affidavit,[81] namely, that Ms Sevilla had tertiary qualifications whereas Ms Thompson did not. As I set out later, Mr Poeltl in his affidavit says that on the termination of Ms Thompson’s employment on 8 May 2020, some of the tasks she performed were allocated to others, including to Mr Suwandi. Mr Suwandi holds a Bachelor of Food Science and Technology which he obtained in 2008. That suggests that, although Ms Thompson did not hold any tertiary qualifications, she performed tasks that were later performed by persons who did hold tertiary qualifications. That, in turn, suggests that it was not necessary for a person who performed Ms Thompson’s functions to hold tertiary qualifications.
[81] Affidavit C A Standley 18.10.2021, [74]
23 August 2012 – FMS offers Ms Thompson PCFPT Officer Position
By letter dated 23 August 2012 FMS confirmed Ms Thompson’s “new job”, effective from 27 August 2012. The new position was described as a “Process Control & Finished Product Testing Officer” (this being the PCFPT Officer Position I defined above). The letter attached a document titled “Position Description” (PCFPT Officer Job Description), which included the following information:[82]
[82] Affidavit F Thompson 14.09.2021, [79], [80]; annexure “FT-3”
1. Purpose
main functionMaintain the company’s quality and food safety programs, by conducting “on line” verification checks.
Manage the collection of QA manufactured product samples for Commodity testing and Laboratory filing.
Manage the QA surveillance program of deliveries of incoming raw materials and contract-manufactured product
Perform calibration checks on scale only
Assist Operational Services and Production departments by providing technical information when requested.
Perform GMP and HACCP audits.
Assist the Quality Systems Co-ordinator and Technical Services Manager in the development of QA procedures and factory Standard Operating Procedures (SOP’s).
Participate in company OH&S program
2. Work Relationships
Internal
. . . .Positions reporting
Technical Services ManagerPositions requiring liaison
Commodities
Manufacturing.
Warehouse
Engineering
. . . .3. Person Specification
skills, qualifications, experience, attitude and behavior [sic]Essential
· An understanding of food safety programs and quality systems.
· To be observant and diligent in accurate recording of information
· Ability to analyze and recommend and [sic] initiatives for continual improvement.
· Excellent interpersonal skills, with the ability to develop and maintain relationships with internal customers.
· Must have initiative and have the ability to work unsupervised.
· PC skills.
· Flexible and proactive approach to work – make positive and practical suggestions for improvement
4. Responsibilities
prime tasks and areas of operation
Key Accountabilities· Conduct regular production line QA audits performing packaging integrity; fill weight and residual oxygen checks.
· Perform daily calibration of all scales used for check weighing.
· Collect QA samples left by production and arrange representative samples to be sent to commodities for tasting by completing commodities Quality Report Book.
· Retain daily, a representative sample of manufactured product as a laboratory file sample.
· Sample, test and record in QA Data Base all incoming raw material deliveries. Arrange tasting by commodities and retention of a file sample with certificate of analysis.
· Sample, test and record in QA Data Base all incoming deliveries of subcontract manufactured product.. [sic] Arrange tasting by commodities and retention of a file sample with certificate of analysis where applicable.
· Manage product shelf testing program.
· Perform regular moisture determinations on unpacked Roast & Ground Coffee samples to monitor quenching rates.
· Assist Quality Assurance Co-ordinator in performing GMP and HACCP quality audits.
· Maintain filters and needles on Oxygen Analysers
· Participate in sensory testing of coffee products in conjunction with the commodities department.
· Assist with the collection of imported coffee samples
· Assist with the collection of green bean samples when required
· Assist with the issuing of Certificates of Analysis when required
· Assist with the positive release of finished goods after testing
· Annual leave coverage in rest of department as required
· Assist with operator training for GMP and HACCP
· Participate in company safety audits when requested.
. . . . . . . . . . . . . . . . 5. Key Performance Indicators
quantitative and qualitative targets which will be used to measure performance· Accuracy of testing and reliability in detecting production non-conformances
· Detail and organisation of recorded quality data
· Contribution to general productivity levels in both the QA and production departments.
Reporting
The PCFPT Officer Position was part of the QA Department.[83] As noted in the PCFPT Officer Job Description, the person holding the PCFPT Officer Position (PCFPT Officer) reported to a person holding the position of “Technical Services Manager”. That position was occupied by Mr Suwandi from around 2012 until the end of the Relevant Period.[84] Mr Suwandi, in turn, reported to Ms de Leeuw and Mr Poeltl, FMS’s Operations Services Manager; and he supervised or worked in conjunction with Ms Teresa Kusnadi, a Product Development Testing Officer.[85]
[83] Affidavit F Thompson 14.09.2021, [42]
[84] Affidavit A Suwandi 18.10.2021, [5], [9]
[85] Affidavit A Suwandi 18.10.2021, [5]
Initial training
According to Ms Thompson, the tasks she was expected to perform in the PCFPT Officer Position were new to her, and differed from the work she had been performing.[86] Ms Thompson, therefore, required training for her new tasks.
[86] Affidavit F Thompson 14.09.2021, [92]
According to Ms Thompson, a person by the name of “Teresa”, who I infer is Ms Teresa Kusnadi, trained Ms Thompson. This occurred over two or three months.[87] Ms Kusnadi accompanied Ms Thompson on the daily rounds for the first week by which Ms Thompson collected product samples, and raw materials; she showed Ms Thompson how to use and calibrate the testing equipment used to test the samples for weight, bulk density, moisture, oxygen and brix testing raw materials, and then asked Ms Thompson to perform the relevant test; Ms Kusnadi corrected any mistakes Ms Thompson made, and showed her how to do the work correctly; and Ms Kusnadi sat next to Ms Thompson when Ms Thompson did “data entry on raw material”.[88] Ms Thompson made detailed notes of what Ms Kusnadi had taught her.[89] Ms Thompson estimates it took her about six months to learn to perform her role efficiently.[90]
[87] Affidavit F Thompson 14.09.2021, [96]
[88] Affidavit F Thompson 14.09.2021, [93], [94]
[89] Affidavit F Thompson 14.09.2021, [95]
[90] Affidavit F Thompson 14.09.2021, [98]
Work performed by Ms Thompson up to July 2019
There are a number of items of evidence that describe the work Ms Thompson performed up to July 2019. First, there is the evidence Ms Thompson gives in her first affidavit.
Ms Thompson’s evidence
Ms Thompson’s ordinary hours of work were 7:00 am to 3:00 pm, Monday to Friday.[91] She generally arrived at work at 6:15 am to get a head start on her paperwork.
[91] Affidavit F Thompson 14.09.2021, [108]
The work Ms Thompson performed as a PCFPT Officer consisted of the following:
(a)collecting samples of product and raw materials to be tested for a number of technical attributes;[92]
(b)testing and recording the results of those tests;[93]
(c)conducting visual tests and inspections;[94]
(d)calibrating the measuring equipment Ms Thompson and other employees used, and the scales on the production lines;[95]
(e)maintaining a collection of retention samples in a cupboard in the QA Lab, and a storage area on the ground floor;[96] and
(f)other tasks.
[92] Affidavit F Thompson 14.09.2021, [110]
[93] Affidavit F Thompson 14.09.2021, [110]
[94] Affidavit F Thompson 14.09.2021, [155]-[160]
[95] Affidavit F Thompson 14.09.2021, [111]
[96] Affidavit F Thompson 14.09.2021, [112]
Collection of samples
Ms Thompson undertook the following collection activities:
(a)At around 7:30 am and between 11:30 am and 12:00 pm every day, Ms Thompson attended different production lines and production areas and collected samples the production workers had taken out of the production line, and in relation to which they had prepared a Production Checklist.[97] Ms Thompson undertook various tests in relation to these samples. Ms Thompson collected the samples in a plastic tub trolley, and took them to the QA Lab.[98]
(b)Every two hours Ms Thompson collected a set of samples from the production employees. Ms Thompson provided all but one set of these samples to the Commodities Department. Ms Thompson kept one batch for the “shelf life program as a retention sample”.[99]
(c)Ms Thompson collected from the warehouse raw materials that had been delivered, and which needed to be tested in the QA Lab. Ms Thompson collected the raw material samples in response to emails she received from “Diane” in the warehouse, although Ms Thompson would usually check in at Diane’s office to enquire if any materials had been received from co-packers.[100]
(d)Ms Thompson collected from the warehouse “Certificates of Analysis”, being a document a supplier or co-packer has prepared specifying the quality check the supplier or co-packer had undertaken.[101]
(e)Once a week a production employee who worked in the Essence Room brought to Ms Thompson in the QA Lab a sample of the coffee essence for testing.
[97] Affidavit F Thompson 14.09.2021, [114], [120]
[98] Affidavit F Thompson 14.09.2021, [122]
[99] Affidavit F Thompson 14.09.2021, [116], [117]
[100] Affidavit F Thompson 14.09.2021, [124], [125]
[101] Affidavit F Thompson 14.09.2021, [126]
In evidence given under cross-examination, Ms Thompson said that she collected the samples from the ground floor: “That’s where the production area is”.[102] Ms Thompson got to the ground floor from the QA Lab either by taking the lift (as she would usually do because she placed samples in a trolley), or by stairs.[103]
[102] 07.02.2022 T37.10
[103] 07.02.2022 T37.40
Testing activities
Ms Thompson performed the following tests and procedures:
(a)Ms Thompson checked the weight of eight classes of finished products, these being 1kg coffee beans, brick packs of ground coffee beans, plunger bags, coffee essence, Turkish coffee, Coffee bags, Bushells Instant Coffee, and Robert Timms granulated coffee. Ms Thompson performed this task by placing the jar or package containing the coffee on a digital bench scale, and then recorded the weight. If there was a serious inconsistency or over measurement, in addition to recording the result Ms Thompson checked the scale to check it did not need recalibration, and let Mr Suwandi know.[104]
(b)Ms Thompson conducted colour testing on raw materials and co-packaging materials, including instant coffee, agglomerate, freeze dried coffee, and granulated coffee. Ms Thompson performed this task by placing the material into a petri dish, and placing the loaded dish under a colour meter. The colour meter recorded its analysis by displaying a measurement number. Ms Thompson recorded the number on three copies of a pro forma document called “Commodities Quality Report”.[105]
(c)Ms Thompson conducted moisture testing on the raw material supplies, the co-packing material, and samples as part of the shelf-life program Ms Thompson maintained. Ms Thompson measured the dry weight of two or three tablespoons of coffee into a special dish, weighed the coffee on the desktop digital scale, recorded the weight on a scrap of paper, and then put the weighed sample into a specialised oven on a bench in the back of the QA Lab and left it there for three to four hours. Ms Thompson then removed the sample from the oven and placed it in a desiccator, where it remained for half an hour. Ms Thompson removed the sample and weighed it again to obtain the weight of the sample with the moisture removed. Ms Thompson recorded the measurement of the moisture as a percentage on the Commodities Quality Report.[106]
(d)Ms Thompson conducted bulk density testing of granulated coffee, freeze dried coffee, and instant coffee. Ms Thompson poured coffee into a cylinder, compacted it, and smoothed the surface; and then put the cylinder containing the coffee on top of a bulk density meter. Ms Thompson switched on the bulk density meter which caused it to shake and vibrate the cylinder. Ms Thompson watched the clock for 15 seconds, after which she switched off the bulk density meter and removed the cylinder from the bulk density meter. Ms Thompson then removed half of the coffee from the cylinder, and weighed what was left in the cylinder. Ms Thompson recorded this measurement on a Commodities Quality Report Sheet.[107]
(e)Ms Thompson measured the level of dissolved coffee essence, liquid sugar, and caramel by use of a refractometer. This procedure is known as “brix measurement”. Ms Thompson performed this test by placing a smear of coffee essence on a slider and placing it under the refractometer and, pressing a button that would give the reading expressed as a percentage. The procedure also gave a temperature reading. Ms Thompson recorded the results in a Commodities Quality Report Sheet.[108]
(f)Ms Thompson performed oxygen testing on coffee bags by placing a needle from an oxygen analyser into the bag, putting her finger over the needle, pressing the button, observing the reading, and recording the result on a sheet in the coffee bag room.[109]
[104] Affidavit F Thompson 14.09.2021, [130]-[132]
[105] Affidavit F Thompson 14.09.2021, [133]-[135]
[106] Affidavit F Thompson 14.09.2021, [136]-[140]
[107] Affidavit F Thompson 14.09.2021, [141]-[144]
[108] Affidavit F Thompson 14.09.2021, [145]-[150]
[109] Affidavit F Thompson 14.09.2021, [151]-[154]
Visual tests and inspections
Ms Thompson also undertook the following tasks:
(a)Ms Thompson walked around checking cartons as they were packed to make sure the right product was packed in the correct cartons. That required Ms Thompson to check the “best before” dates were accurate on all products, and checking for any glass breakage.[110]
(b)At 9:45 am every day, Ms Thompson went downstairs to the production lines, and took cartons of finished goods off the end of the line. Ms Thompson took these products to the canteen for a final visual check before they were released for distribution. Ms Thompson, together with the supervisor for the relevant production line opened the cartons and checked the “best before” dates, the batch numbers, the packaging, the labels, and for any cracking in the jars.[111]
(c)Ms Thompson inspected labelling in relation to finished products. This included checking the alignment of the labelling, the printing and colour of the labels, and “best before” dates.[112]
[110] Affidavit F Thompson 14.09.2021, [155]
[111] Affidavit F Thompson 14.09.2021, [156], [157]
[112] Affidavit F Thompson 14.09.2021, [158]
After she completed her visual checks, Ms Thompson sent the sample to the Commodities Department for sensory testing. Ms Thompson left the samples on a cupboard next to the factory side of the red door leading to the office area where they were collected by an employee who worked in the Commodities Department known as “Natalia”.[113]
[113] Affidavit F Thompson 14.09.2021, [161]
Calibration
Ms Thompson weighed the production scales located in the production areas during her first morning run. Ms Thompson recorded the readings on a calibration sheet.[114] Ms Thompson also calibrated the colour meter every day. She did this by placing each of three differently numbered coloured ceramic tiles under the colour meter. If the measurement read by the colour meter did not reflect the number on the tile, Ms Thompson adjusted the colour meter by moving the dial.[115]
[114] Affidavit F Thompson 14.09.2021, [162]
[115] Affidavit F Thompson 14.09.2021, [163], [164]
Shelf life program
Ms Thompson was required to maintain a “Shelf Life Program” in the QA Lab. This involved Ms Thompson keeping a large catalogued collection of samples in a big, sliding glass cupboard in the QA Lab, and in a storage room on the ground floor. Ms Thompson obtained these samples daily from products that had been packed on that day. Ms Thompson sent to the Commodities Department for sensory testing a sample that been in the “Shelf Life Cupboard” for six months. Ms Thompson sent the same sample for sensory testing six months later, and also at the end of the sample’s shelf life.[116]
[116] Affidavit F Thompson 14.09.2021, [193], [198]
Other tasks
Ms Thompson was expected to understand, maintain, and promote “Good Manufacturing Practices” (GMP) and “Hazard Analysis Critical Control Point” (HACCP) Principles as they applied to the food manufacturing industry in general, and to FMS’s business in particular.[117] To that end, Ms Thompson undertook occasional internal training and refresher training in relation to those principles.[118]
[117] Affidavit F Thompson 14.09.2021, [166]
[118] Affidavit F Thompson 14.09.2021, [167]
Ms Thompson promoted GMP by making sure employees wore hairnets and gloves; maintained cleanliness and hygiene standards; were not wearing jewellery; were not wearing overpowering perfume; were not consuming food, drinks, or gum in the processing areas; and were keeping windows and doors shut. Ms Thompson approached any employee whom she observed was not complying with GMP and asked them to address their non-compliance.[119]
[119] Affidavit F Thompson 14.09.2021, [178], [179]
Other matters
Ms Thompson was provided with documents that recorded weekly production schedules, weekly packing schedules, weekly coffee summaries, a cyclic calendar for instant coffee plant shutdown, “Production Quality Checksheets”, and “Visual Checksheets”.[120] These documents were provided to Ms Thompson by their being left in a “pigeon hole” that was marked “FLAVIA – QA”. The pigeon hole was situated in the “production office” on the ground floor, where there was also located pigeon holes for leading hands and supervisors.[121] The pigeon holes of employees who worked in sales, finance, human resources, and in the Commodities Department were located on the first floor.[122]
[120] Affidavit F Thompson 14.09.2021, [89], [90]
[121] Affidavit F Thompson 14.09.2021, [87]
[122] Affidavit F Thompson 14.09.2021, [88]
Documents Ms Thompson completed
In evidence given under examination in chief, Ms Thompson identified examples of a number of classes of documents Ms Thompson prepared in the course of her employment as a PCFPT Officer.
(a)A pro forma document headed “Quality Report Samples submitted to Commodity Room”.[123] It is dated 13 September 2019. The document comprises two principal columns, the first being “Laboratory Comment”, and the second being “Commodity Room Comments”. In the column headed “Laboratory Comment” Ms Thompson identified the raw material (by reference to a number), when the raw material was received; the weight of the raw material, and “BB 25/5/21”” (which I infer is “Best Before 25/5/2021”, and other information which includes moisture determinations, colour reading, and bulk density measurements Ms Thompson had made. The section headed “Commodity Room Comments” itself contains columns headed “Appearance”, “Texture”, “Aroma”, “Flavour”, and “Sign”. Ms Thompson wrote “OK” in each of the first four columns, and placed her signature in the column headed “Sign”.
(b)A pro forma document headed “Quality Report Samples submitted to Commodity Room”.[124] Ms Thompson described that document as a “tank sample of coffee essence before it’s packed” and records the temperature and other readings.[125]
(c)A pro forma document headed “Quality Report Samples submitted to Commodity Room”.[126] Ms Thompson described that document as a “shelf life evaluation”.[127]
(d)A pro forma document headed “Quality Report Samples submitted to Commodity Room”.[128]
(e)A pro forma document headed “Certificate of Analysis”.[129] Ms Thompson described that document as a “certificate of analysis that has a Brix reading, a temperature reading and my handwriting”.[130]
(f)A document headed “Raw Material Sample Input Form” which records the information Ms Thompson inputted into FMS’s “QA database”. It identifies liquid sugar supplied by Manildra, and records a brix test, and also comments by Ms Thompson.[131]
(g)A document headed “Raw Material Sample Input Form” which records the information Ms Thompson inputted into FMS’s “QA database”. It records the “RM number, purchase order number, the quantity, the date raised, date packed, batch code, fresh food batch code, best before date, certificate of analysis tick, bulk density, moisture, colours, comments” and Ms Thompson’s name.[132]
(h)A document titled “Quality Report Contract Packed Products”.[133] That document records the item code, the date raised, the date packed, the batch code, the best before date, the “filled weight”, and the packaging.[134]
(i)A pro forma document Ms Thompson described as a “brick pack document”.[135] This appears to be the “Production Checklist” on which, every two hours during his or her shift, an operator records information specified by the document.[136]
(j)A number of other pro forma documents that appear to be Production Checklists completed by operators that contain Ms Thompson’s handwriting in red.[137]
[123] 07.02.2022 T18.10; Exhibit A, CB1345
[124] Exhibit A, CB1346
[125] 07.02.2022 T18.35
[126] Exhibit A, CB1347
[127] 07.02.2022 T18.40
[128] Exhibit A, CB1348
[129] Exhibit A, CB1349
[130] 07.02.2022 T19.5
[131] Exhibit A, CB1350; 07.02.2022 T19.10
[132] Exhibit A, CB1351; 07.02.2022 T19.20
[133] Exhibit A, CB1352
[134] 07.02.2022 T19.30
[135] Exhibit A, CB1353; 07.02.2022 T19.35
[136] 07.02.2022 T19.40
[137] Exhibit A, CB1354-1361
Daily routine
It would be convenient first to identify some context for construing the EA covering clauses. Of relevance are two of the Parent Awards referred to in the Enterprise Agreements, namely the Food Award, and, to a lesser extent, the Manufacturing Award.
Each of the Enterprise Agreements assumes that, but for the operation of the agreement, the Food Award and the Manufacturing Award would or may apply to at least some classes of employees who work or may work at the Concord Site. Given that each of the Enterprise Agreements could only have been approved if, among other things, it passed the “better off overall test”, it is reasonable to expect that each of the Enterprise Agreements intended to cover employees who would otherwise be covered by the Food Award and by the Manufacturing Award. Thus, the words used in each of the Food Award and the Manufacturing Award to identify the persons covered by those awards may be relevant to ascertaining the meaning of the words used in the Enterprise Agreements to identify the persons who are covered by those agreements.
Food Award
I have already noted that the Food Award covers persons who are in the “food, beverage and tobacco manufacturing industry”; and I have reproduced earlier in these reasons the definition of “food, beverage and tobacco manufacturing” given in cl 3.1 of the Food Award. There are three things to note:
(a)The definition in cl 3.1 contains two elements. One is what may be called the “non-ancillary element” of the definition; it consists of some form of processing or other form of treatment of food, beverages, and tobacco; and the raw materials that form part of, or are used in connection with, the processing or treatment of food, beverages, and tobacco. The other element is “ancillary” activities. Clause 3.1 specifies three classes of ancillary activities, these being the receipt, storage and handling of ingredients and raw materials to make food, beverage, and tobacco products; the bottling, canning, and packaging of food, beverage, and tobacco products; other activities in relation to finished food, beverage, and tobacco products; and the cleaning and sanitising of equipment used to produce food, beverage, and tobacco products. This is a non-exclusive list of “ancillary activities” because cl 3.1 uses the words “such as” between “ancillary activities”, and the three classes of ancillary activities it identifies.
(b)The Food Award does not simply cover employees who are in the “food, beverage and tobacco manufacturing” industry; it covers employees who are “in the classifications in this award”. The classifications are described in Schedule B to the Food Award.
(c)The Food Award excludes persons who are covered by the Clerks Award. I have reproduced earlier in these reasons the coverage clause of the Clerks Award (cl 4.1), and the definition of “clerical work” given in cl 3.1 of that Award. Gray J in Joyce v Christoffersen made the following observations about the meaning of “clerical”:[223]
[223] Joyce v Christoffersen (1990) 26 FCR 261, at pages 270-273
The Oxford English Dictionary (2nd ed., 1989), defines “clerical” relevantly as “of or pertaining to a clerk or penman”. The appropriate definition of “clerk” is “one employed in a subordinate position in a public or private office, shop, warehouse, etc, to make written entries, keep accounts, make fair copies of documents, do the mechanical work of correspondence” and similar “clerkly” work. Among the definitions of “clerkly” is “of or belonging to an office clerk”.
. . . .
In the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary functions. A good illustration of this problem is found in The Federated Clerks’ Union of Australia Industrial Union of Workers, (WA Branch) v Cary (1977) WAIG 585. In that case, the question was whether a person employed in a firm of real estate agents to deal with the leasing of premises was a clerk. Her principal duties were to negotiate tenancy agreements, supervise performance by tenants of those agreements, advise landlords as to the termination of tenancies and act on instructions in relation to them. Inevitably, she did a great deal of work that was essentially of a clerical nature. The Industrial Appeals Court held that she was not a clerk. Burt CJ said (at 586):
“If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The “substance” of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.”
Brinsden J said (at 587):
“There is no doubt, of course, that she was involved in doing a lot of work which was of a clerical nature in relation to the running of the rental department. In addition, it appears that she also at times did clerical work relating to other portions of the respondents’ business. It does not appear to me, however, that the work which she did which was not of a clerical nature, was work which could be said to be or form part of general office administration. Indeed that work was the work of a land salesman as understood by the provisions of the Land Agents Act 1921 (WA) and as such she was required to be, and was in fact, registered as a land salesman under that Act. What one is left with therefore is the necessity to evaluate the evidence to
determine whether her duties as a land salesman were so slight as to be outweighed by her duties of a clerical nature, so that in truth and in substance, it should be said that she acted as a clerk.”. . . .
The other aspect of the word “clerical” which is raised in the dictionary definition is that of its subordinate nature. This was borne out in Keogh v. Federated Clerks’ Union of Australia (1979) Industrial Arbitration Service Current Review 589, especially at pp 592-593, where it was held to be an important factor in deciding the eligibility of a trade union organiser to belong to the Union that his work was unsupervised. If, in turn, a person is employed in a supervisory capacity, it is unlikely that his or her employment will be in a clerical capacity.
Manufacturing Award
I set out earlier the coverage clause of the Manufacturing Award. It is clear from that clause that the Manufacturing Award covers activities that involve the manufacturing, fabrication, processing, and other treatment of the classes of physical objects specified in cl 4.10 of that Award.
The text of the EA covering clauses
Each EA covering clause provides that the agreement applies to “all production, maintenance & warehouse non-administrative persons”. Each of the words “production”, “maintenance”, “warehouse”, and “non-administrative” is an adjective that qualifies the word “persons”. The first question is whether each adjective is intended to be read cumulatively. That question must be answered in the negative. The Enterprise Agreements distinguish between the payment of wages to producers, on the one hand, and the payment of wages to maintenance or warehouse persons, on the other.
The second question is whether each of the EA covering clauses identifies four different classes of persons – “production persons”, “maintenance persons”, “warehouse persons”, and “non-administrative persons”; or whether the coverage clauses cover three classes of “non-administrative persons”, namely, “production non-administrative persons,” “maintenance non-administrative persons”, and “warehouse non-administrative persons”. The latter is the correct construction. The Enterprise Agreements do not provide for the payment of wages to any person who is classified as a “non-administrative” person. Each EA covering clause provides, therefore, that each of the Enterprise Agreements apply to “production persons”, “maintenance persons”, “warehouse persons”, provided such persons are also “non-administrative persons”.
The third question concerns the meaning of “production”. As I have already noted, it is employed as an adjective to qualify “persons”. That means that “production . . . persons” denotes persons that undertake activities that warrant their being called “production” persons. Those activities must relate to “production”: it would be a person’s conducting tasks in connection with “production” that would warrant his or her being characterised as a “production … person”. It may be accepted that the ordinary meaning of “production” is that given by the Macquarie Dictionary, namely, the “act of producing; creation; manufacture”. That means that persons will properly be characterised as “production . . . persons” if they conduct activities that are substantially associated with activities that constitute producing, or creating, or manufacturing things.
The fourth question relates to the word “non-administrative”. That word bears the opposite meaning of “administrative”. “Administration”, the noun form of “administrative”, has a number of meanings; but, when used in relation to a business, it means the “action of carrying out or overseeing the tasks necessary to run an organization, bring about a state of affairs, etc.; the process or activity of running a business, organization, etc”.[224] More broadly “administration”, when applied to a manufacturing or processing business, denotes activities other than the activities that are directly involved in the process of manufacturing goods the business sells to earn revenue. A “non-administrative” person, therefore, in relation to manufacturing or production, is a person who participates in activities that are directly involved in the process of manufacturing or processing goods.
[224] Oxford English Dictionary, online edition, accessed on 11 July 2023.
Conclusion
Based on these matters, I conclude that, on the proper construction of each of the Enterprise Agreements, the expression “production . . . non-administrative persons” in each of the EA covering clauses, denotes persons who are engaged to conduct, and do conduct, activities that are directly involved in the process of the production, creation, or manufacture of coffee products at the Concord Site.
Construction of Level 3, Level 4, and Level 5 Schedule B classifications
Schedule B to the Food Award describes six classifications, three of which are relevant to Ms Thompson’s claims. These are “Level 3”, “Level 4”, and “Level 5”. Each description (Description) of these classifications is divided into two parts. The first part, which does not contain a heading, specifies two alternatives.
(a)The first is the completion of an “Australian Qualifications Framework (AQF) Certificate 1 in Food Processing” (AQF1), an “AQF Certificate 2 in Food Processing” (AQF2), and an “AQF Certificate 3 in Food Processing” (AQF3) respectively.
(b)The alternative to (a) is the requirement that the employee have “equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to” Level 3, or Level 4, or Level 5.
Each of AQF1, AQF2, and AQF3 imply distinct fields of knowledge; and that the granting to an employee of any of these certificates in food processing constitutes an acknowledgement that the employee has demonstrated he or she has acquired the field of knowledge implied by the certificates. The parties did not provide to the Court or seek to tender at the hearing (assuming it were necessary to do so) evidence that reveals the field of knowledge implied by AQF1, AQF2, and AQF3.[225]
[225] To the submissions Ms Thompson filed on 1 August 2023 in response to the email my Associate sent to the parties on 11 July 2023, there was attached documents that describe the fields of knowledge implied by AQF1, AQF2, and AQF3. In submissions filed on 7 August 2023, FMS submitted it was not open to me to have regard to the documents without Ms Thompson applying for leave to reopen her case. On the view I have taken about the proper construction of each Description, it is unnecessary for me to have regard to the documents.
The second part of each the Descriptions specifies a number of matters under the heading “Competencies”. These matters are best characterised as attributes or abilities, and they are expressed in general terms. I will refer to these matters as Attributes.
At the hearing FMS submitted that the classifications provided for in Schedule B to the Food Award reflect a sequential structure, each level after Level 1 being dependent on the employee having undergone “structured training”, and that Ms Thompson has not adduced evidence that she has participated in any such structured training.
In her counsel’s written submissions in reply, on the other hand, Ms Thompson submitted that nothing turns on Ms Thompson’s having undertaken no formal training, or holding no qualifications.[226] Ms Thompson submitted that, although the classification structure in the Food Award is sequential, it is clear “from the text set out in each of the competencies”[227] that it is not an essential element of each level above Level 1 for an employee to undertake structured training to progress to the next level. Ms Thompson submitted:[228]
An employee at Level 5, Level 4 or Level 3 may have “recognised enterprise or industrial experience, training or prior learning experience and / or skills to” perform at the requisite level. The Applicant’s case is that she had in-house training to the relevant standard of enterprise and industry experience. The Applicant’s evidence at Thompson 1 [93] – [96] was that she received on the job training from another employee, Teresa Kusnadi, for approximately two or three months after she commenced in the role of Process Control & Finished Product Testing Officer. Her evidence at Thompson 1 [167] – [174] was that she continued to undertake internal training and refresher training in relation to Good Manufacturing Practices and Hazard Critical Control Point Principles. As at the date of her redundancy in May 2020, the Applicant had almost 19 years of experience working at the Respondent’s site, and almost 8 years of experience in the role of Process Control & Finished Product Testing Officer.
[226] Applicant’s Written Submissions in Reply, [10]
[227] Applicant’s Written Submissions in Reply, [11]
[228] Applicant’s Written Submissions in Reply, [13]
In the course of preparing these reasons for judgment, I formed the view that neither party expressly identified the construction of the text of each Description. For that reason, on 11 July 2023 I directed my Associate to send the following email to the parties’ lawyers:
Dear Practitioners,
His Honour has requested the following be brought to the parties attention.
Paragraph (a)(i) of each of the descriptions (Descriptions) of the “Level 3”, “Level 4”, and “Level 5” classifications in Schedule B to the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Award) refer to an AQF certificate in Food Processing (Certificate 1, Certificate 2, and Certificate 3, respectively); and paragraph a(ii) of each of the Descriptions refers to “equivalent recognised enterprise or industrial experience, training or prior learning experience”. It has not been suggested that the applicant has completed any of the AQF certificates in Food Processing; so it appears to be the case that the applicant contends that she has “equivalent recognised enterprise or industrial experience, training or prior learning experience”.
His Honour invites the parties to provide written submissions on the following questions:
1.Is it the case that the applicant contends that, although she did not satisfy the requirement of paragraph (a)(i) of each of the Descriptions, she satisfied the requirement of paragraph (a)(ii) of each of the Descriptions?
2.If 1 is answered in the negative, on what basis does the applicant contend that she meets paragraph (a) of each of the Descriptions?
3.If 1 is answered in the affirmative, what is the proper construction of paragraph (a)(ii) of each of the Descriptions? In particular:
a.Does paragraph (a)(ii) of each of the Descriptions require that the applicant have the “enterprise or industrial experience, training, or prior leaning [sic] experience” that is equivalent to the relevant AQF certificate in food processing?
b.If a. is answered in the negative, what is the proper construction of paragraph (a)(ii) of each of the Descriptions? More particularly, to what does paragraph (a)(ii) of each of the Descriptions require that the “enterprise or industrial experience, training or prior learning experience” be “equivalent”?
c.If a. is answered in the affirmative, does paragraph (a)(ii) of each of the Descriptions require that the applicant’s industrial experience, training, or prior leaning experience that is equivalent to the relevant AQF certificate in food processing be “recognised” in some way?
4.If 3.c. is answered in the affirmative, what is the evidence and matters on which it is open to contend that the applicant’s “enterprise or industrial experience, training or prior learning experience” has been “recognised”?
5.If 3.c. is answered in the negative, what is the evidence and matters on which it is open to the applicant to contend that she has satisfied paragraph (a)(ii) of each of the Descriptions.
His Honour would appreciate the parties providing their submissions within seven days or within such time as the parties reasonably require.
The parties filed written submissions in response to my Associate’s email.[229]
[229] Ms Thompson filed submissions on 1 August 2023, FMS filed submissions on 7 August 2023, and Ms Thompson filed submissions in reply on 14 August 2023.
Ms Thompson’s submissions
In her written submissions, Ms Thompson confirmed that she satisfies the requirement of paragraph (a)(ii) of Level 5, or in the alternative, Level 4, or in the alternative, Level 3. Ms Thompson submitted that paragraph (a)(ii) of each Description does not require that an employee have the “enterprise or industrial experience, training, or prior learning experience” that is equivalent to the relevant AQF certificate in food processing. Ms Thompson submits that, if it were the intention of the Award that Level 3, Level 4, or Level 5 required the employee to have the knowledge implied by AQF1, AQF2, or AQF3 respectively, paragraph (a)(ii) of each Description would have expressly stated so by including after the word “skills to” the words “Australian Qualifications Framework AQF Certificate 1 in Food Processing”, or “AQF Certificate 2 in Food Processing”, or “AQF Certificate 3 in Food Processing” respectively. Paragraph (a)(ii) of each Description instead requires that the employee have the experience that is equivalent to the competencies of an employee at the relevant level.
Ms Thompson submitted that if, contrary to her primary submission, paragraph (a)(ii) of each Description did require the employee to have the “enterprise or industrial experience, training, or prior learning experience” that is equivalent to the relevant AQF certificate in food processing, Ms Thompson did have the equivalent training and experience. For reasons that appear later, it is unnecessary to consider that submission.
FMS’s submissions
FMS made extensive submissions about particular aspects of the text of each Description; but I do not understand FMS to submit that, on their proper construction, each Description required that the employee have the “enterprise or industrial experience, training, or prior learning experience” that is equivalent to the relevant AQF certificate in food processing. I will, however, proceed on the basis that FMS does not accept the contrary of that proposition, namely, that each Description did not require that an employee have the “enterprise or industrial experience, training, or prior learning experience” that is equivalent to the relevant AQF certificate in food processing.
Determination of the proper construction of each Description
I accept Ms Thompson’s submission that, on their proper construction, paragraphs (a)(ii) of each Description do not require that the employee have the “enterprise or industrial experience, training, or prior learning experience and/or skills” that are equivalent to the relevant AQF certificate in food processing; each Description requires that the employee have the “enterprise or industrial experience, training, or prior learning experience and/or skills” “to Level 3”, or “to Level 4”, or “to Level 5” respectively. Each of the expressions “to Level 3”, “to Level 4”, and “to Level 5” point to the Attributes in paragraph (b) of the relevant Description. In other words, that to which the “enterprise or industrial experience, training, or prior learning experience and/or skills” must be equivalent are the Attributes, that is, the matters identified as “Competencies” in paragraph (b) of the relevant Description.
Thus, whether an employee who has not completed an AQF1, AQF2, or AQF3 falls within the Level 3, or the Level 4, or the Level 5 classification turns on whether the duties and work the person performs reflect, or substantially reflect, the Attributes, that is, the matters identified in paragraph (b) of the relevant Description.
Was Ms Thompson a “production . . . non-administrative” person?
I have concluded that, on the proper construction of each of the Enterprise Agreements, the expression “production . . . non-administrative persons” in each of the EA covering clauses denotes persons who are engaged to conduct, and do conduct, activities that are directly involved in the process of the production, creation, or manufacture of coffee products at the Concord Site. Was Ms Thompson a “production . . . non-administrative persons” in the sense I have construed that expression? That question is to be answered in the affirmative.
Both the responsibilities and functions of a PCFPT Officer, as stated in the PCFPT Officer Position, and the work I have found Ms Thompson performed, constitute activities that were directly involved in the process of producing, or creating, or manufacturing coffee products. The essential character of Ms Thompson’s role as a PCFPT Officer was to observe, test, and record information relevant to the receipt of raw materials, their processing into finished goods, and the despatch of the finished goods, as and when raw materials were received, materials were being processed on the production lines, and finished products were despatched. The information Ms Thompson acquired through her observations and testing was relevant to ensuring, as and when these activities occurred, that the raw materials FMS received, the goods it manufactured, and the condition in which the finished goods were despatched, met FMS’s standards. This role was essential to FMS’s manufacturing processes as and when they were in progress. If, in the course of Ms Thompson’s activities, she were to have observed, or to have recorded tests that showed or suggested, that the raw materials FMS received, the goods it manufactured, or the condition in which the goods FMS manufactured were to be despatched, did not meet FMS’s standards, action would been taken that would have affected the processes FMS implemented in manufacturing or producing its coffee products.
Was Ms Thompson a Level 5, or Level 4, or Level 3 employee?
On the construction I have given of the Description of each of Level 5, Level 4, and Level 3, whether Ms Thompson’s employment fell within any of these levels turns on whether the duties and work Ms Thompson performed reflect, or substantially reflect the character of the Attributes listed in the relevant Description.
I first turn to the Attributes listed in the Description of the Level 5 classification (Level 5 Description). I am satisfied of the following:
(a)The work Ms Thompson performed manifested an understanding of the relevant quality control techniques FMS applied in its production processes; and Ms Thompson applied those techniques. This met the Attribute specified in paragraph (b)(i) of the Level 5 Description. Further, the PCFPT Officer Job Description required that Ms Thompson possess this attribute; it listed as an essential requirement that the PCFPT Officer have an “understanding of food safety programs and quality systems”.
(b)The work Ms Thompson was required to perform, and which she did perform, required her to communicate with a number of different personnel, and in particular the persons who worked on the production lines, and the persons who worked in the warehouse. That satisfies me that Ms Thompson had good interpersonal and communication skills and, for that reason, she met the Attribute specified in paragraph (b)(ii) of the Level 5 Description. Further, the PCFPT Officer Job Description identified “[c]ommodities”, “[m]anufacturing”, “[w]arehouse”, and “[e]ngineering” as positions with which a PCFPT Officer was required to liaise; and the PCFPT Officer Job Description required that the PCFPT Officer have “[e]xcellent interpersonal skills, with the ability to develop and maintain relationships with internal customers”.
(c)Ms Thompson manifested an ability to inspect products and materials for conformity with FMS’s established operational procedures. This met the Attribute specified in paragraph (b)(iii) of the Level 5 Description.
(d)It is true that the work Ms Thompson performed was relatively repetitive, regular, and standardised. That by itself does not exclude Ms Thompson’s having been required to exercise, and her having exercised, judgment and decision making skills regularly and repetitively.
(i)Ms Thompson worked under general supervision; that means she was required to exercise judgment, and decision making skills about the manner in which she arranged the tasks she was required to perform.
(ii)In evidence given under cross-examination, Mr Suwandi accepted that, “to a certain extent”, Ms Thompson was exercising judgment when checking whether finished products conformed with FMS’s standards.[230]
(iii)The PCFPT Officer Job Description stated that the purpose of the PCFPT Officer was to “[m]anage” the “QA surveillance program of deliveries of incoming raw materials and contract-manufactured product”. Management itself implies the need to exercise judgment, and to have decision-making skills.
I am satisfied, therefore, that Ms Thompson had the Attribute specified in paragraph (b)(iv) of the Level 5 Description.
(e)Ms Thompson worked under general supervision individually; and, for that reason, met the Attribute specified in paragraph (b)(v) of the Level 5 Description.
(f)Given Ms Thompson met attributes (i)-(v) of the Level 5 Description, Ms Thompson had the capacity to successfully undertake the structured training necessary to enable her to work at Level 6. Thus, Ms Thompson also met the Attribute specified in paragraph (b)(vi) of the Level 5 Description.
[230] 08.02.2022 T112.10
I therefore find that Ms Thompson’s employment with FMS fell within the Level 5 Description, and that FMS ought to have classified her as a Level 5 employee.
My confidence in finding that Ms Thompson’s employment fell within the Level 5 Description is reinforced by two matters. The first is my finding that the PCFPT Officer Position was created to replace the position Ms Sevilla had occupied, and that Ms Sevilla herself had been classified as a Level 5 employee at the time she resigned from FMS. The second matter is that I have accepted Ms Thompson’s evidence that Ms Kusnadi had trained Ms Thompson over two to three months, and that it took Ms Thompson about six months to learn to perform her role efficiently.
REDUNDANCY
There is no issue that FMS terminated Ms Thompson’s employment because the position for which she was employed had become redundant. Ms Thompson contends, however, that FMS’s terminating her employment on that basis engaged cl 22.8.1 of the 2019 EA, which, according to the heading of cl 22.8, applied to “Permanent Employees Engaged Prior to 24th May, 2007”.
Clause 22 relevantly provides (bold in original):
22.1 It is agreed between the parties that Employees (production, maintenance and warehouse non-administrative persons only) at the Concord site will be entitled to redundancy benefits in accordance with the Agreement.
22.2 Preamble:
The following definitions shall apply:
Employer: FreshFood Management Services Pty Ltd as a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd.
Employee: Any person covered by the Agreement
Current Rate: The Employee’s ordinary all-purpose wage rate plus any applicable shift loading.
. . . .
22.7 Severance Payment for Permanent Employees Engaged Prior to 24th May, 2007:
22.7.1 Each Employee made redundant shall receive four (4) weeks payment at the current rate. This provision only applies to those Employees with twelve (12) months or more continuous Employer service.
22.8 Redundancy Formula for Permanent Employees Engaged Prior to 24th May, 2007
22.8.1Redundancy payment shall be made in accordance with the following formula:
a.Four (4) weeks payment for the first year of service greater than three (3) months; and
b.Four (4) weeks payment for each subsequent completed year of service or part thereof.
c.The basis of calculation for clause 22.8.1 will be at the employee’s current rate of pay.
The clause then sets out a table containing five columns. The first column is headed “[s]ervice” underneath of which is specified different lengths of “service”. Clause 22 continues as follows:
22.9 Notice Period and Redundancy Payment for Permanent Employees Engaged After 24th May 2007
22.9.1 Notice Period:
a.The Employer will give the Employee to be made redundant four (4) weeks’ notice of the appropriate effective date.
b.Each Employee shall thereupon elect to work for the period of notice or terminate their employment and receive, in lieu of such notice, four (4) weeks payment at the Employees [sic] current rate of pay.
c.This provision only applies to those Employees with twelve (12) months or more continuous service.
22.9.2 Redundancy Pay:
A maximum of fifty two (52) weeks redundancy pay, shall apply in the following manner:
a.Four (4) weeks payment for the first year of service greater than three (3) months; and
b.Four (4) weeks payment for each subsequent completed year of service or part thereof.
c.The basis for clause 22.9.2 will be at the Employees [sic] current rate of pay.
Ms Thompson submits that “service”, as it appears in cl 22 of the 2019 EA, bears its ordinary meaning, namely, the period of an employee’s employment with his or her employer, which includes “contiguous casual, seasonal and permanent employment”.[231] Ms Thompson also relies on the decision of the Full Bench of the FWC in AMWU v Donau Pty Ltd.[232] The question in that decision was whether the period of service of a casual employee was to count when calculating “continuous service” for the purposes of a clause of an enterprise agreement which incorporates s 22 of the FW Act which defines the meaning of “service” and of “continuous service”. The Full Bench concluded as follows:[233]
[T]he [FW] Act does not exclude a period of regular and systematic casual employment from the definition of service or continuous service for the purpose of severance payments, and neither does the Agreement exclude that period of employment.
[231] Applicant’s Written Submissions in Reply, [25]
[232] AMWU v Donau Pty Ltd [2016] FWCFB 3075
[233] AMWU v Donau Pty Ltd [2016] FWCFB 3075, at [19]
FMS, on the other hand, submits that Ms Thompson’s service as a permanent employee of FMS did not commence until on or about 1 October 2008. If the 2019 EA applies, Ms Thompson’s entitlement to redundancy would be covered by cl 22.9. This submission is premised on the view that cl 22 applies only to “Permanent Employees”. FMS relies on the decision of the Full Bench of the FWC in Unilever Australia Trading Limited v AFMEPKIU known as the AMWU.[234] The question in that decision was whether casual and seasonal service was to count as service for the purpose of a redundancy clause. The Full Bench decided that such service did not count because the agreement provided that “[t]his [r]edundancy [a]greement does not apply to casual or seasonal employees”.[235]
[234] Unilever Australia Trading Limited v AFMEPKIU known as the AMWU [2018] FWCFB 4463
[235] Unilever Australia Trading Limited v AFMEPKIU known as the AMWU [2018] FWCFB 4463, at [21]
Whether cl 22.8.1 of the 2019 EA applies to a period of service of casual employees turns on the proper construction of the text of that clause, viewed in context. Although the heading of cl 22.8.1 contains the words “Permanent Employees”, the heading does not form part of the operative provisions of the clause. When attention is directed to cl 22.8 as a whole, it is apparent that it applies to employees that are covered by the 2019 EA. That follows from cl 22.2 of the 2019 EA, which defines “Employee” to mean “[a]ny person covered by the Agreement”. That includes casual employees. Assuming cl 22.8 applies to casual employees, their “service” is to count when applying the provisions of cl 22.8.1; and here, “service” must be taken to mean “continuous service”.
I conclude, therefore, that cl 22.8.1 of the 2019 EA applied to the calculation of the amount for redundancy to which Ms Thompson became entitled when FMS terminated her employment.
FURTHER CONDUCT
I have concluded that the Enterprise Agreements covered Ms Thompson’s employment, and that she fell within the classification of a Level 5 employee. I have also concluded that cl 22.8.1 of the 2019 EA applied to the termination of Ms Thompson’s employment because her position had become redundant.
The only order I propose to make is to list the matter at 9:30 am on 8 September 2023 to make orders to give effect to these reasons for judgment, and to make directions in relation to penalty.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 August 2023
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