Unilever Australia Trading Limited T/A Streets Ice Cream Minto
[2020] FWC 5935
•6 NOVEMBER 2020
[2020] FWC 5935
The attached document replaces the document previously issued with the above code on 6 November 2020.
Amendments have been made to paragraphs [28] and [34].
Associate to Deputy President Dean
Dated 6 November 2020
| [2020] FWC 5935 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Unilever Australia Trading Limited T/A Streets Ice Cream Minto
(C2018/4767)
DEPUTY PRESIDENT DEAN | SYDNEY, 6 NOVEMBER 2020 |
Application to deal with a dispute –proper construction of enterprise agreement.
[1] This application arises from a dispute involving the interpretation of particular provisions of the Unilever Australia Trading Limited (Trading as Streets Ice Cream Minto) Enterprise Agreement 2017 (the Agreement) with respect to the employment of casual employees.
[2] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU) has filed an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with this dispute in accordance with the dispute settling procedure (clause 28) of the Agreement.
[3] The Agreement covers Unilever Australia Trading Limited trading as Streets Ice Cream Minto (Unilever), the AMWU and employees of Unilever who are employed at Minto under the terms of the Agreement.
[4] There is no issue that the Commission has jurisdiction to deal with the matter in dispute and that the resolution of the dispute turns upon the interpretation of particular provisions in the Agreement.
[5] Mr S Howe appeared for the AMWU and Mr P Brown appeared for Unilever at the hearing on 14 October 2020.
[6] The specific question or questions which, if answered, would determine the dispute were not agreed between the parties prior to the hearing. Both parties proposed different questions, however I consider that the answer to the following will determine the dispute:
a. Are casual employees included within the 35% ratio referred to in clause 10.1.3(4) of the Agreement?
b. If yes, are casual employees counted only on each occasion they perform individual engagements or when they form part of a pool of casual employees employed by Unilever?
[7] In determining this dispute, I have had regard to the principles applicable to the construction of an enterprise agreement which were canvassed in detail in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd 1 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited2(Berri).
[8] For the reasons set out below, I find that casual employees are not counted for the purposes of clause 10.1.3(d) of the Agreement. Accordingly, the answer to the first question is No. The second question therefore does not arise.
Background
[9] Unilever is engaged in the production of ice cream products at its factory in Minto, NSW.
[10] The Agreement was approved by Unilever’s employees in what the AMWU describe as ‘highly contested circumstances’, following a lengthy period of bargaining and various proceedings in the Commission.
[11] The Agreement introduced a new type of employment known as Flexible Permanent Part Time (FPPT) employment.
Relevant provisions
[12] The clauses in the Agreement that were identified by the parties as relevant to determining the dispute include clause 10 - Employment Status, and Appendix C – Career Path. Given the length of clause 10 it is not set out in full here.
[13] Clause 10.1 deals with Permanent Employees.
[14] Clause 10.1.3 deals with FPPT employment. Of particular relevance is clause 10.1.3(4) which is as follows:
“Full time permanent employment will make up at least 65% of the non-maintenance employees employed under this Agreement. FPPT and Seasonal Workers may make up to the remaining 35%.”
[15] Clause 10.1.3(4) is followed by an example in the following terms:
“Example: if Unilever employed 100 permanent operators, only 35 of those positions could be flexible part time and/or seasonal positions.”
[16] Full time permanent employees are described in clause 10.1.1 as those who work an average of 40 hours and 33 minutes per week.
[17] Clause 10.2 deals with Non Permanent Employees, and covers seasonal employees in clause 10.2.1, fixed term employees in clause 10.2.2, and casual employees in clause 10.2.3.
The case for the AMWU
[18] The AMWU commenced its argument noting that clause 10.3.1(4) deals with proportions of employees. It argued that the plain and ordinary meaning of the first sentence of clause 10.1.3(4) is the imposition of an obligation that full time permanent employees make up at least 65% of the non-maintenance workforce at the Minto site, and the sentence is expressed in mandatory terms in that it uses the word “will”. In contrast, the second sentence of clause 10.3.1(4) is expressed in permissive terms, in that it uses the word “may”. The plain and ordinary meaning of the second sentence, it argued, is that Unilever is permitted to employ FPPT and Seasonal employees within the remaining proportion of 35%. The clause does not, however, require that the remaining 35% of employees must be employed on a FPPT or Seasonal basis.
[19] The AMWU argued that it was open for Unilever, subject to other terms of the Agreement, to employ various other categories of employees such as part time, fixed term, seasonal and/or casual employees within the remaining proportion of 35%.
[20] In terms of the example which follows clause 10.1.3(4), the AMWU said that it was ‘imprecisely worded’, and inaccurately implied that Seasonal employment was a type of Permanent employment when in fact it was a type of Non-Permanent employment. It described this as “a mere infelicity of drafting”. Nevertheless, it argued that the example still supported a reading of the Agreement that required 65% of employees employed under the Agreement to be Permanent Full Time employees.
[21] In support of the argument as to the primacy of Full Time employment, the AMWU referenced clause 10.1.3(2) which provides that FPPT employment was intended to supplement, not replace, full time employment.
[22] In response to arguments put by Unilever, the AMWU said there was nothing in clause 8 of the Agreement, which deals with training, that had the effect of permitting Unilever to employ proportions of employees that would result in Full Time employees making up less than 65% of the non-maintenance workforce in order to meet its training obligations.
[23] The AMWU also relied on clause 10.2.3 of the Agreement which deals with casual employees and argued that Unilever could only employ casual employees to:
a. allow the company to use full time employees in production;
b. improve the flexibility of the workplace;
c. achieve planning targets; and
d. cover absences.
[24] It argued that the clause did not provide for the use of casuals for training purposes.
[25] In its submissions in reply, the AMWU said the following with respect to clause 10.1.3:
a. Unilever’s submissions do not engage with the expression of the number of full time employees employed under the Agreement as a percentage.
b. A percentage is a proportion of a whole, expressed in numbers out of 100. Axiomatically, numbers expressed as percentages cannot add up to more than 100 in respect of one whole.
c. The “whole” in this case is the number of “non-maintenance employees employed under this Agreement”, regardless of the basis on which they are engaged. In order to comply with clause 10.1.3, Unilever must ensure that at least 65% of that group of employees is engaged on a permanent full time basis.
d. The phrase “at least 65% of non-maintenance employees employed under this Agreement” can only be read as requiring a minimum proportion of the employees employed under the Agreement to be employed on a “full time permanent” basis.
e. This obligation to ensure the minimum of 65% employees engaged on a full time basis is expressed in mandatory and certain terms, in that it uses the word “will”.
f. It is trite that, because numbers expressed as a percentage of a singular whole cannot add up to more than 100, in order to maintain a proportion of at least 65% of one whole, the remaining proportion, or proportions cannot be more than 35% of one whole.
g. The number of other employees “employed under the Agreement” on a basis other than in “permanent full time employment” therefore must not make up more than 35% of the employees “employed under the Agreement”. That 35% of employees “employed under the Agreement” can be employed on a part time, FPPT, fixed term, casual or seasonal basis.
h. The second sentence of clause 10.1.3 provides that seasonal and FPPT employees may make up the remaining 35%. The use of the word “may” provides Unilever with a discretion to use employees who are seasonal and FPPT within that 35%, but also to employ employees who are other than seasonal or part time within that remaining proportion of 35%. This is harmonious with the first sentence.
i. There are no textual indicators that casual employees are additional to employees “employed under the Agreement”. To the contrary, casual employees are employees whose terms and conditions are provided for and set out “under the Agreement”. Casual employees are also “employees employed under the Agreement” and are included within the whole of that body. They may only be employed in a “non-maintenance” role.
j. It follows that the terms of clause 10.1.3 support a finding by the Commission that casual employees are included in the 35% cap. Such an interpretation is consistent with the terms of the Agreement expressed as a whole.
[26] In respect of clause 10.2.3, the AMWU in its reply to the submissions made by Unilever said:
a. Clause 10.2.3 is expressed to allow the employment of casual employees only in very limited circumstances. Properly construed, it provides for further restrictions on the use of casual employees within that percentage of 35%, rather than permitting an unlimited number of casual employees falling outside of the body of employees “employed under the Agreement” if those criteria are satisfied.
b. Unilever’s submission as to the effect of clause 10.2.3 requires the Commission to read clause 10.2.3 in isolation, rather than in context. The task of the Commission is to review the language of the Agreement in light of its context and purpose, including the provisions of the Agreement as a whole.
c. Unilever’s preferred interpretation of clause 10.2.3 would render clause 10.1.3 nugatory and should be rejected.
d. It is also inconsistent with the purpose of the introduction of FPPT employment, which is to address Unilever’s flexibility needs, while maintaining the primacy of permanent and full time employment.
[27] In summary, the AMWU submitted that the plain and ordinary meaning of clause 10.1.3(4) is that:
a. There is an obligation placed on Unilever to ensure that the non-maintenance workforce must be comprised of at least 65% Full Time Permanent employees employed pursuant to clause 10.1.1 of the Agreement; and
b. In accounting for the remaining proportion of 35%, Unilever is required to count part time, fixed term, seasonal and casual employees, who are employed under the Agreement, the combined total of which cannot exceed 35% of employees employed under the Agreement.
[28] The AMWU also made submissions as to the second question, however given the answer to the first question is no, it is unnecessary to deal with submissions going to the second question.
[29] Finally, the AMWU filed two witness statements by Mr Steven Murphy, two statements of Mr John Stewart, and a statement by Ms Michelle Parkin. Their evidence would have been relevant had I found that there was ambiguity with respect to the relevant provisions, and reference could have been had to extrinsic materials. As set out below, I have found that the Agreement is not ambiguous, and so I have not had regard for their evidence.
The case for Unilever
[30] Unilever submitted that casual employees were not subject to the 35% cap referred to in clause 10.1.3(4) of the Agreement. Therefore, it would be permissible for Unilever to engage casual employees provided that such engagement was consistent with the provision of clause 10.2.3.
[31] It submitted that there was no way that clause 10.1.3(4) and the example that follows it could be read as having any ambiguity at all. In this sense, the clause is abundantly clear as to the types of employees that make up the 35% proportion, and it does not include casuals.
[32] Further, given the hotly contested negotiations referred to by the AMWU, it can be concluded that the clause was carefully drafted by the parties.
[33] To come to the conclusion urged by the AMWU, argued Unilever, would require the Commission to read words into clause 10.1.3(4) that do not exist. Unilever went on to argue that the Commission “should not go looking for meanings that are simply there to meet the disappointment of the applicant union”.
[34] Unilever filed a statement of Mr Robert Roach. As I have not found any ambiguity in the relevant Agreement provisions, I have not had regard to this evidence.
Consideration
[35] Having considered the submissions made by the parties and having reviewed the Agreement in the manner set out in Berri, I find the interpretation put forward by Unilever to be the correct interpretation of the Agreement.
[36] Clause 10.1.3(4) simply makes no reference to casual employees. Both the clause and the example that follows are specific about which types of employment are included in the percentages. Giving the words their ordinary meaning, casual employees are not included in the 35% proportion.
[37] Further, it must be assumed that in introducing a new type of employment and in the context of the highly contested circumstances described by the AMWU, care would have been taken in the drafting of clause 10.1.3(d) or the following example. The omission of any reference to casual employees cannot, in my view, be accidental or simply a drafting error.
[38] There is in my view nothing ambiguous about the relevant provisions of the Agreement. Neither party submitted that the relevant Agreement provisions were ambiguous, however the AMWU did deal with this as a submission in the alternative.
[39] While I accept the submission of the AMWU that a percentage is a proportion of a whole and that numbers expressed as percentages cannot add up to more than 100, it does not follow that casual employees are included in the 35% proportion. This is because the clause provides for the named employment types to make up the whole, and this does not include casual employees.
[40] When the Agreement is read as a whole, and considering the relevant provisions and their place in the Agreement, I find that casual employees are not included in the 35% cap. Further, Unilever is permitted to engage casual employees provided that such engagement is consistent with clause 10.2.3.
[41] The dispute is so determined.
DEPUTY PRESIDENT
Appearances:
S Howe of Turner Freeman Lawyers for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU).
P Brown of Baker & McKenzie for Unilever Australia Trading Limited trading as Streets Ice Cream Minto.
Hearing details:
2020.
Sydney (by video):
October 14.
Printed by authority of the Commonwealth Government Printer
<PR724305>
1 [2014] FWCFB 7447
2 [2017] FWCFB 3005
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