Unilever Australia Trading Ltd T/A Streets Ice Cream Minto v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2024] FWCFB 248
•29 MAY 2024
| [2024] FWCFB 248 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Unilever Australia Trading Ltd T/A Streets Ice Cream Minto
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2023/7124)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 29 MAY 2024 |
Appeal against decision [2023] FWC 2582 of Commissioner McKenna at Sydney on 3 November 2023 in matter number C2023/2419.
Unilever Australia Trading Ltd T/A Streets Ice Cream, Minto (Unilever) has appealed under s.604 of the Fair Work Act 2009 (FW Act) a decision made by Commissioner McKenna on 3 November 2023 (the Decision). [1] The Decision was in respect of an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) pursuant to s.739 for the Commission to deal with a dispute in accordance with the dispute settling procedure in the Unilever Australia Trading Ltd (trading as Streets Ice Cream, Minto) Enterprise Agreement 2021 (the Agreement).
The parties proposed an agreed question for determination by the Commissioner. It was whether employees who are required to operate a forklift are entitled to the payment of the Heavy Vehicle Driving Allowance (HVDA) prescribed by cl.20.2(c) of the Food, Beverage and Tobacco Manufacturing Award 2020 (the Award). During the course of the arbitration a further issue arose over how the allowance should be paid. The contest being whether, if the allowance was payable, it was payable only for the time that the vehicle was driven or for all hours worked.
Relevant to the first question was clause 2.6.1 of the Agreement which reads:
“2.6 Relationship to the Modern Awards and that National Employment Standards (NES)
2.6.1 To the extent that there is any inconsistency between this Agreement and the Awards then the provisions of this Agreement will apply. Where this Agreement is silent then the relevant Award(s) will apply. Where this Agreement is silent and where the Award(s) differ on conditions, the industrial parties will resolve the issues and add it into the Agreement at its next review.”
The second issue turned on the application of clause 20.2 of the Award which relevantly reads:
20.2 Wage-related allowances
(c)Heavy vehicle driving allowance
An employee who is required to drive a vehicle of more than 3 tonnes Gross Vehicle Weight (GVW) must be paid while they are engaged on such work:
Vehicle size per hour extra $ OVER 3 TONNES GVW AND UP TO 4.5 TONNES GVW 0.16 over 4.5 tonnes GVW and up to 14.95 tonnes GVW 1.31 over 14.95 tonnes GVW 1.73 a semi-trailer 3.12
The Commissioner determined the agreed question by finding that, as the Agreement is silent regarding the entitlement to a HVDA, cl.2.6.1 of the Agreement operated such that the HVDA is payable. The Commissioner also determined that the allowance was payable to any employee required to drive a forklift for all hours worked.
Permission to appeal
An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2).[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.[3]
Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so. Permission to appeal may be granted on grounds other than the public interest.[4]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[6] However, the fact that the first instance decision maker made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Given the dispute involved the proper construction of the Agreement, the determination to be made was non-discretionary and was required in accordance with the “correctness standard”.[8] What follows in relation to this appeal is that we must determine whether the Commissioner’s answer to the question was correct, and if we conclude that it was wrong, that would amount to appealable error.[9]
The Decision
Briefly, the Commissioner found that:
a.She did not accept Unilever’s submissions which were to the effect that the allowances provided for in the Agreement were intended to be a comprehensive statement of allowances payable to employees such that any other allowance contained in the Award had no effect.
b.The Agreement does not contain any HVDA or any other analogous or broadly analogous allowance or payment identified referable to heavy vehicle driving.
c.As the Agreement is silent on the matter of an HVDA, the second sentence of clause 2.6.1 of the Agreement which reads: “where this Agreement is silent then the relevant Award(s) will apply”, had work to do and the HVDA in the Award applied.
d.The words “An employee who is required to drive a vehicle of more than 3 tonnes Gross Vehicle Weight (GVW) must be paid while they are engaged on such work” required payment to employees required to drive a forklift, whether the requirement was to do so from time to time or as part of his or her predominant role, for all hours worked.
In the Decision the Commissioner considered the text of the provisions she was required to consider, referred to previous industrial instruments applicable to the workplace, and relied in part on the Form F17 – Employers declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) filed by Unilever with its application for the approval of the Agreement (the Form F17). The latter was provided at the Commissioner’s request and the Commissioner determined that it supported the conclusion that the HVDA was payable.
The Commissioner then turned to how and to whom the HVDA is paid. Unilever argued this was not part of the agreed question to be determined and otherwise submitted it would not be appropriate or available for the Commission to determine the operation of the HVDA payments under the Award. The Commissioner took the view that the dispute settling procedure allowed her to make such a determination as the method of payment was a matter which necessarily fell for determination in resolving the dispute.
The Commissioner’s answer to the question for determination was “yes”. She went on to determine that the payment to relevant employees is “to be made in a way that is conformable with the all purposes-type approach advocated by the AMWU rather than the narrower approach to the payment entitlement advocated by Unilever. The relevant employees’ entitlements should be calculated and paid accordingly”.
Appeal Grounds
The four grounds of appeal are as follows:
The Commission misconstrued clause 2.6 and clause 15.5 of the Agreement;
The Commission erred:
a)in failing to find that there was an inconsistency between the Agreement and the Award;
b)in making a finding that the Agreement was silent as to a Heavy Vehicle Driving Allowance or an analogous or broadly analogous allowance or payment; and
c)in finding the Agreement required that the Appellant pay the HVDA;
The Commission erred in introducing and taking into account the Form F17 for the Agreement; and
Assuming the HVDA to be payable, the Commission:
a)exceeded its jurisdiction and power to determine the circumstances in which the allowance is to be paid; and
b)erred in finding that the allowance be paid “on an all-purpose basis” to any employee required to drive/operate a forklift rather than when engaged on the work of driving or operating a forklift of more than 3 tonnes Gross Vehicle Weight.”
Consideration
Appeal grounds 1 and 2 – Construction of clause 2.6.1 and clause 15 of the Agreement
The first two grounds go to the correct construction of the Agreement and can be dealt with together. The principles of statutory construction and those pertaining to the construction of enterprise agreements are well-settled and need not be rehearsed.[10]
Unilever’s submission pointed to a number of errors in the Commissioner’s reasoning process complaining that she did not appreciate and take into account that clause 2.6.1 is susceptible to more than one meaning. Clause 2.6.1, it submitted, does not identify the matter about which the Agreement may be ‘silent’ so it is necessary to identify this matter before any conclusion as to the mandatory language of clause 2.6 may be made.
Unilever raised two contextual issues, contending that the Commissioner did not take into account the Agreement was an enterprise agreement made pursuant to Pt 2-4 of the FW Act or relevant evidence of the surrounding circumstances to aide in the interpretation of the Agreement.
As the correctness standard applies to the appeal our task is to determine whether we consider that the Commissioner’s response to the question of the construction of the Agreement was correct. If we consider that her answer was not correct, our duty is to substitute what we consider to be the correct answer for the answer given in the decision.[11] Our task is not to identify whether the Commissioner’s reasoning process was sound, although the Commissioner’s reasoning will be relevant, but whether her decision was correct.
As noted above, clause 2.6.1 is the clause relevant to the determination of this aspect of the dispute and is in the following terms:
“2.6.1 To the extent that there is any inconsistency between this Agreement and the Awards then the provisions of this Agreement will apply. Where this Agreement is silent then the relevant Award(s) will apply. Where this Agreement is silent and where the Award(s) differ on conditions, the industrial parties will resolve the issues and add it into the Agreement at its next review.”
The starting point for interpretation is the ordinary meaning of the words, read as a whole and in context. The three sentences of clause 2.6.1 must be read together.
The first sentence of clause 2.6.1 deals with any inconsistency between the Agreement and the Awards. “Awards” is defined in clause 2.5 of the Agreement. There are two; the Manufacturing and Associated Industries and Occupations Award 2020 and the Award. Where any inconsistency exists, the Agreement applies. ‘Any’ inconsistency is not limited, as Unilever suggests, to an inconsistency between a topic or subject matter such as “Allowances”. Had ‘topics’ or ‘subject matters’ been intended by the parties as the consideration of whether any inconsistency existed, this wording could easily have been included. It was not. The inconsistencies that the clause is directed at is to the “provisions” of the instruments.
The second sentence must be read with the first sentence. It deals with circumstances where the Agreement is silent. In those circumstances the relevant Award will apply. We consider the second sentence is also directed at provisions in the instruments. Not topics or subject matter, such that if ‘any’ Award provision is not otherwise dealt with in the Agreement, then the Award provision will apply.
The third sentence deals with what is to happen where the Agreement is silent on a provision and the Awards have provisions which differ. In those circumstances the parties have agreed to address the conflict when the Agreement is next reviewed. In doing so the third sentence clarifies that the provisions that are dealt with in the first two sentences are provisions that go to conditions, not topics or subject matters.
Applying the ordinary meaning of the words of clause 2.6.1, we consider that the relevant provision was the provision of an allowance for employees who are required to drive a heavy vehicle. The Agreement is silent on a HVDA. The Award is not. Consequently, the allowance in the Award applies. So much follows from a reading of the ordinary language of the Agreement read in context.
We do not accept any of the matters raised by Unilever going to broader contextual matters displaces the ordinary meaning of the terms. The matter which the Agreement may be silent upon is identified as a provision, and more specifically a provision going to a condition. The legislative context that the Agreement was made under, the FW Act, which provides for Agreements to displace award regulation, does not lead to a different conclusion.
While it is the case, as Unilever pointed out, that s.57 of the Act provides that awards do not apply at a time that an enterprise agreement applies, s.257 provides that an enterprise agreement may itself incorporate material contained in an instrument, including an award. Awards fall within the definition of “fair work instrument” in s.12 of the FW Act.[12]
Unilever also raised surrounding circumstances being the conduct of the parties, the first matter being that Unilever had never paid the HVDA to forklift drivers and the second being that the issue had never arisen in a review of the Agreement. So far as the conduct of the parties can be taken into account, we do not believe that these circumstances would permit us to do so. We do not consider that the conduct of the parties relied upon displaces the ordinary meaning of the clause.
Our conclusion is that the Commissioner’s construction of the clause was correct. As we consider the decision to be correct in this regard there is no arguable appealable error. As we consider there is no arguable appealable error, we do not grant permission to appeal in relation to grounds 1 and 2 of the appeal.
Appeal ground 3 – reliance on the Form F17
Unilever noted that the Form F17 was introduced into the proceedings at the behest of the Commissioner. It was not relied upon by the parties to the dispute. The introduction of the Form F17, it argued, amounted to an interference by the Commission in the dispute hearing such as to deny Unilever procedural fairness.
In other words, Unilever submitted there was no contention by either party that the Form F17 could be relied upon to evidence a common understanding that the HVDA was not omitted because of the operation of clause 2.6.1. The Commissioner did not inform the parties of any intention to rely on the Form F17 for the purpose of concluding that there was such a common understanding and as such there was a denial of procedural fairness.
The AMWU confirmed that it was not in dispute that the Form F17 did not give rise to any common understanding between the parties. They submitted the Form F17 is post-agreement (but pre-approval) conduct that cannot be said to be evidence of prior negotiations that tends to establish objective background facts known to all parties. It is simply the subjective understanding of the individual filling out the form.
The submissions reveal that neither party considered the Form F17 could be relied on by the Commissioner to evidence a common understanding or otherwise between the parties. We agree with these submissions.
We also agree with the AMWU that given the correctness standard applies to the task before the Commission, any improper reliance on the Form F17 will not change our role in determining whether the Commissioner correctly construed the Agreement. Consequently, if there was a denial of procedural fairness it is of no consequence. We refuse permission to appeal on this ground.
Appeal Gound 4 – jurisdiction and basis for payment
In relation to this appeal ground, Unilever contended that the Commissioner went beyond the scope of the dispute to determine that clause 20.2(c) required that employees who required to drive/operate forklifts should be paid the allowance for all hours so worked. Unilever also submitted that the Commissioner erred in the construction of the clause 20.2(c) of the Award.
The AMWU contended that the issue of how the allowance should be paid arose in the dispute and so the Commissioner was required to resolve that issue. It relied upon the decision of the Federal Court in National Union of Workers v Pacific Dunlop Tyres Pty Ltd[13] and decisions of the Full Bench in DL Employment v AMWU[14] and CFMMEU v Falcon Mining.[15]
The Commissioner took the view that the disputes procedure required the Commission to conciliate and to arbitrate on matters dealt with by the Agreement and the relationship between the Agreement and the Award is dealt with by the Agreement. In the dispute before her, the parties disagreed about what payment entitlement flows from that relationship, so that the disagreement was a matter which necessarily fell for determination in resolving the dispute.
We discern no error in the Commissioner’s reasoning.
The issue that the Commissioner went on to determine was whether the HVDA was payable for all hours so worked. The answer to that question turned on the construction of clause 20.2(c) of the Award. Arguments in the appeal were put on the text of the clause only and went to two issues. First, how the allowance could practically be paid on an hourly basis, and second, how it could be paid on annual leave for the purposes of cl 20.2(a), which provides that it is an all purpose allowance.
Clause 20.2(a) of the Award provides:
(a)All-purpose allowances
Allowances paid for all purposes are included in the rate of pay of an employee who is entitled to the allowance, when calculating any penalties or loadings or payment while they are on annual leave. The following allowances are paid for all purposes under this award:
(i) Leading hand allowance (clause 20.2(b));
(ii) Heavy vehicle driving allowance (clause 20.2(c)); and
(iii) Boiler attendants allowance (clause 20.2(d)).
The Commissioner accepted the AMWU’s submissions on this point and found that the allowance was to be paid for all hours worked.
In view of the limitations associated with the proceedings before the Commissioner, we do not consider that these appeal proceedings are an appropriate vehicle to agitate the proper construction of clause 20.2 of the Award. The proper construction of clause 20.2 was a matter that had wider ramifications than the dispute before the Commissioner. It had the potential to affect many other employers and employees covered by the Award. It also appears from the material filed in this matter at first instance that the issue was dealt with without full argument. Unilever contended that the matter should not have been considered at all and relied on that as its primary basis for resisting the determination sought. Consequently, the Commissioner was not provided with evidence of matters such as what instructions were given to employees as to when they were required to drive the forklift. No material was advanced going to the award history of clause 20.2.
We are not persuaded that there is sufficient evidence before us to determine the proper construction of the provision. The Full Bench in Appeal by Australian Maritime Officers’ Union[16] refused to consider arguments about award construction where insufficient evidence was available. Similarly, a Full Bench in ASU v Jobs Australia & Aged and Community Services Association of NSW and ACT Incorporated and Others[17] refused to consider arguments going to a variation of an industry award in circumstances where the interests of the parties before it were confined to their own interests.
We consider these factors as important matters going to whether permission to appeal should be granted. We consider it would be contrary to the public interest for us to grant permission to appeal and determine the proper construction of clause 20.2 absent full argument and submissions from other interested parties.
We refuse permission to appeal on Unilever’s fourth ground.
Conclusion and Disposition of the Appeal
We are not persuaded that any of the appeal grounds advanced by the Appellant disclose an arguable case of appealable error.
We have also considered whether the appeal attracts the public interest. We are not satisfied, for the purposes of s.602(2), that the appeal raises any legal or factual issue of significance or general application, or that there is a diversity of decisions at first instance, or that the legal principles applied are disharmonious when compared with other decisions. We do not consider that the decision is counter-intuitive or manifests an injustice. We conclude that the public interest is not enlivened.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
J Fernon of Counsel for the Appellant.
J Martin for the Respondent.
Hearing details:
2024.
By video:
February 14.
[1] [2023] FWC 2582.
[2] See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[3] Section 604(1) of the Fair Work Act 2009 (Cth).
[4] Ibid s.604(2).
[5] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] - [46].
[6] Wan v AIRC (2001) 116 FCR 481 at [30].
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
[8] Minister for Immigration and Boarder Protection v SZVFW [2018] 264 CLR 663.
[9] Rail Commissioner v Rogers [2021] FWCFB] 371 at [61].
[10] As to statutory construction principles see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [2017] HCA 34 (per Kiefel CJ, Nettle and Gordon JJ) at [14] and (per Gageler J) at [37]-[39]; as to the construction of enterprise agreements see Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90at [18] and the authorities cited therein; James Cook University v Ridd [2020] FCAFC 123, (2020) 278 FCR 566at [65] and the authorities cited therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131at [197] and the authorities cited therein.
[11] Rail Commissioner v Rogers[2021] FWCFB 371 at [61]; RTBU v Laing O’Rourke Australia Construction Pty Ltd[2019] FWCFB 33 at [23]; Appeals by ASU and CPSU [2013] FWCFB 4752, 234 IR 366 at [13]; AMIEU v Diamond Valley Pork Pty Ltd[2021] FWCFB 532 at [31].
[12] An example of the incorporation of an award term into an enterprise agreement by reference was considered by the Full Federal Court of Australia in Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206.
[13] (1992) 37 FCR 419; 43 IR 201 at [26].
[14] [2014] FWCFB 7946.
[15] [2022] FWCFB 93.
[16] [2013] FWCFB 8338.
[17] [2014] FWCFB 379.
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