United Voice v Carlton & United Breweries Pty Ltd

[2013] FWC 7079

[2013] FWC 7079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Carlton & United Breweries Pty Ltd
(C2013/1011)

FOSTER’S AUSTRALIA LIMITED ABBOTSFORD BREWERY AND UNITED VOICE ENTERPRISE AGREEMENT 2012-2015
(AG2012/1928)  [AE895398]

Food, beverages and tobacco manufacturing industry
COMMISSIONER BLAIR	MELBOURNE, 27 SEPTEMBER 2013

Alleged dispute in relation to Classification, Consultation and Production.

[1] This decision relates to an application by United Voice (the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute concerning classification, consultation and production. The respondent to the application is Carlton & United Breweries Pty Ltd (the Respondent).

[2] The dispute concerns the application of the Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012-2015 [AE895398] (the Agreement).

[3] A conciliation conference was conducted on 11 July 2013 with no outcome achieved. Inspections were carried out on 24 July 2013 at the Respondent’s premises. The matter was then set down for arbitration on 20 August 2013. Submissions were lodged by each party with six witness statements provided by the Applicant and four witness statements provided by the Respondent. Dr P Sutton represented the Applicant and Mr J Tuck, with permission of the Commission, represented the Respondent.

[4] There was an issue regarding the application concerning the status quo of the matter, which is dealt with in the Dispute Settlement Procedure, Appendix C of the Agreement.

[5] Appendix C of the Agreement states in part:

“ix) Whilst the parties are attempting to resolve the matter the status quo will prevail.”

[6] In regards to that matter, the Commission issued a Statement [2013] FWC 5019 [PR539342] which reads as follows:

“The Fair Work Commission (the Commission) has conducted inspections of the Carlton & United Breweries site - Abbotsford Brewery, in relation to the introduction of quality checks (PPQA) to be carried out by the Palletiser Operator on the B3 Bottling Line. The inspections were conducted today, Wednesday 24 July 2013.

Following the inspections a discussion occurred between the parties and the Commission regarding the issues that are in contention.

In the Commission’s view there are three issues. They are:

1. status quo;

2. whether or not it is appropriate for the PPQA checks to be undertaken by the Palletiser Operator;

3. if it is not appropriate for the PPQA checks to be undertaking by the Palletiser Operator, then what classification level should apply to the PPQA checks.

Issues 2 and 3 are now subject to arbitration, which will be conducted on Tuesday 20 August 2013.

In relation to issue 1, status quo, the Commission believes that it would be assisted in its deliberations if the PPQA checks were carried out by the Palletiser Operator commencing on Monday 29 July 2013. The Commission determines accordingly.

The Commission wishes to assure all parties that their respective positions are not prejudiced by the Palletiser Operator undertaking the PPQA checks. The Commission believes it would assist in answering issues 2 and 3 above.

Directions will be issued in relation to the arbitration.”

[7] The Statement and the issue in relation to the status quo of the matter were accepted and adopted by the employees of the Respondent. Therefore, the two questions that the Commission had to determine were:

1. Can the Respondent instruct the B3 Palletiser operator to do the PPQA checks; and

2. If the Respondent can instruct the B3 Palletiser operator to do the PPQA checks, what is the correct grading for that role.

[8] The Applicant states that in 2012 the Respondent removed two Grade 4 operators from the B3 Bottling Line and began a regimen of PPQA testing. Those two operators performed PPQA checks on product taken from the B1 lines, B3 line and C1 line.

[9] The Applicant asserts that in or about May 2013 the Respondent instructed B3 operators that the PPQA checks of the B3 product would be done by the B3 Palletiser operator. It was at that point that the Applicant initiated a dispute.

[10] Clause 26 - Production and Product Quality (Quality and Machine Performance Checks), subclause 26.1 of the Agreement states as follows:

“26.1 Work area personnel are responsible for performing and recording established routine and regular quality and machine performance checks related to their work station. The intent is to improve the quality of the product and reliability of the plant. Implementation details will be developed through the work area consultative process.”

[11] It is asserted that the parties are in agreement that the substance of the negotiations of clause 26.1 revolved around operator maintenance.

[12] The Applicant states that the Respondent seeks to argue that the phrases “established” and “relevant to the work station” do not adhere to the phrase “quality checks” because “quality checks” were not discussed during negotiations. The Applicant agrees that “quality checks” were not discussed by the parties during those negotiations but they also assert that that does not strip the phrase “quality checks” of all meaning. The phrase occurs in clause 26.1 and the words must be given work to do. The Commission accepts that “quality checks” has work to do, but only in the context of machine performance and not in relation to the term “checking quality” in the Grade 1, Level 1 classification.

[13] The Applicant asserts that the Respondent argues that they do not have to consult with workers if the changes are within the classification structure of the Agreement. The Applicant states that this position is untenable when implementing change quality checks. They state that the Respondent is bound to develop implementation details through the work area consultative process, which, they state, is a clear reference to the consultation provision of the Agreement.

[14] Clause 8 - Consultative Process, of the Agreement states in part:

“Consultative Mechanism

The parties are committed to open consultation and it is their intention to discuss and resolve work area issues in the local work area.

Consultative mechanisms will be set up as required where Management Representatives meet with the work area Delegate and or other Employee elected Representatives from their work area. Consultation will be real and involve more than a mere exchange of information. Both parties will actively contribute to the decision making process.

The Company recognises that the Union and its Elected Delegates are the Representatives for members of the Union”

8.1 Local Work Area

8.1.1 Definition of local work areas are defined as:

- Packaging

- Brewing

- Logistics (other than Main Warehouse)

- Quality, Health, Safety and Environment (Security, Packaging QA)

- Distribution: Abottsford Warehouse

8.1.2 If there is not a Delegate(s) available or existing in that work area, the Union convenor will be notified. The Union will seek nominations from that work area for the position.

8.1.3 If a Delegate is not forthcoming from the work area, the Union and work area Award members will choose an existing elected Union Delegate(s) or other Employee representative to assist them, or if required involve the Union organiser.

8.1.4 The local work area meetings may be used to assist the consultative process, especially in keeping all work area Employees informed of relevant issues. Communication and language difficulties will be taken into consideration.

8.1.5 At any time the work area Employees can involve their Union.”

[15] In this regard, the Respondent states that clause 8 is only triggered when clause 37 - Introduction of Change takes effect.

[16] Clause 37 - Introduction of Change of the Agreement states in part:

“37.1 Company Duty to Notify

37.1.1 Where the Company has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company shall notify the Employees who may be affected by the proposed changes and their Union.

37.1.2 “Significant effects” include termination of employment, major changes in the composition, operation or size of the Company’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work; the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs. Provided that where this Agreement makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.”

[17] The Respondent also asserts that what is sought to occur in relation to the PPQA check on the B3 palletiser does not fall within the terms “significant effect” which, they state, is spelled out quite clearly in clause 37.1.2.

[18] The Commission, at this point, would have to agree that what is being proposed in terms of the PPQA checks to be done on the B3 palletiser cannot be termed to be significant change. The Commission accepts that there is some additional work, but that work falls very clearly within the term “quality checks”.

[19] The Respondent refers to the evidence of Ms Laura Stevens, a witness for the Applicant, who admitted that the negotiations regarding subclause 26.1 concerned machine performance checks (or operator maintenance) and that quality checks were never discussed during the negotiations.

[20] The following exchange between Mr Tuck and Ms Stevens under cross-examination (PN779 to 783 of transcript) seems to confirm that position:

“In paragraph 20 you say, “After various versions of our draft and their draft CUB said they could not agree to a clause that included words like “by agreement” which meant that we had to search for another way to satisfy our membership that CUB couldn’t unreasonably expand their workload in regards to quality checks. It was workload in relation to machine performance checks, wasn’t it, not quality?---Well, the clause, we believe, kind of referred to two separate things. One was the quality checks, one was the machine operator reliability task which is the lubrication task and the assistance during shutdown. What we wanted to make clear in the discussions between the two was that while we were happy to clarify the issues around the machine reliability work –so the lubrication and the assistance during shutdowns, essentially – we wanted to ensure that there was no change to the quality checks, which is the first section of that clause 26.

Who said that? When did you say that?---Sorry?

When did you ever say that to Mr Woodburn? You never said that to Mr Woodburn?---Well, we were discussing and we’ve always made it clear during the negotiations - - -

To yourselves?---During the negotiations we made it clear that we were prepared to discuss and talk about the lubrication stuff, that we were prepared to accept those changes in regards to the lubrication and we understood that that was the intention of the clause. We were very - - -

You never discussed quality?---No, we didn’t discuss quality but we were very sure - “

[21] The Respondent seems to infer, and this is the Commission’s interpretation of what the Respondent says, that there is a blurring between the words in Appendix G - Classification, 16.3.1 of the Agreement eg. cleaning, checking quality, manual carrying and lifting duties and the words “quality checks” contemplated by subclause 26.1. The Commission agrees that there is a blurring and refers to its comments in paragraph [12] of this decision.

[22] The Commission would agree that there is a different meaning with the words in subclause 26.1 to those in Appendix G, subclause 16.3.1 where the term “quality” is used. Subclause 26.1 is very clear about recording established routine and regular quality and machine performance checks whereas, given what the Commission has just referred to in the evidence of Ms Stevens, the words “checking quality” relates to the classification structure in Appendix G. subclause 16.3.1.

[23] In reading subclause 16.3.1 as a whole, the Commission is satisfied the words “checking quality” should not inhibit the introduction of PPQA checks given that, in the Commission’s view, what is being asked to be done on the B3 palletiser line is consistent with Brewery Employee Packaging Grade 1 Level 1 with some additional, but not technical, visual inspections.

[24] The Commission does not accept that the PPQA check is so complicated that it requires specific and technical gauges and measuring devices, that it is more advanced than a tear down, that it requires accurate to the millimetre measuring.

[25] As stated earlier, the Commission is satisfied that the gauges used in the measuring devices are gauges that require simple line of sight. They are not technically advanced nor do they require specific training because of their complexity.

[26] In regard to whether or not it is more advanced than a tear down, the Commission is satisfied that the difference between the PPQA check and the other checks is somewhat minimal.

[27] The Commission is also satisfied that it doesn’t require accurate to the millimetre measuring or that it was such a complicated check that it requires a re-classification to Brewery Employee Packaging Grade 3. Brewery Employee Packaging Grade 3, is defined in the Agreement at Appendix G - Classifications, subclause 16.3 - Classifications - Victoria (packaging) as follows:

“16.3.5 Brewery Employee Packaging, Grade 3

Brewery Employee - Packaging Grade 3 means an Employee who is required and capable of operating within a Grade 3 function ad who has satisfactorily completed the agreed training and experience for Grade 3 and/or is required and licensed to operate a 4500kg fork-lift truck on a weekly basis and/or is required and licensed to do rigging or scaffolding. The Employee is required and capable of performing the duties as outlined in the definition of Brewery Employee - Packaging, Grade 2.”

[28] Therefore, in response to the two questions posed previously, the Commission is satisfied that it is appropriate for the PPQA checks to be undertaken by the B3 Palletiser operator but it cannot accept that such functions should be classified as Brewery Employee Packaging, Grade 3, as that would undermine the integrity of the Grade 3 classification.

[29] The Commission does express some concern, though, about Grade 1, Level 1 and Grade 1, Level 2 employees performing the PPQA test. It does so because it believes that those employees are in training mode and it is more appropriate that they establish themselves in order to obtain the basic skills and knowledge that are required to carry out the duties of Grade 1, Level 1 and Grade 1, Level 2 before progressing to Brewery Employee Packaging, Grade 2. Brewery Employee Packaging Grade 2 is defined in the Agreement at Appendix G - Classification, subclause 16.3 - Classifications - Victoria (packaging) as follows:

“16.3.3 Brewery Employee - Packaging, Grade 2

Brewery Employee - Packaging Grade 2 means an Employee who operates a machine on a bottle line, can line or racking plant including operator maintenance ad process reporting and who has satisfactorily completed the agreed training and experience for Grade 2. The Employee is required and capable of performing the duties as outline in the definition of Brewery Employee - Packaging Grade 1.”

[30] Therefore, it is the Commission’s view, given its comments above about employees at Grade 1, Level 1 and Grade 1, Level 2 being trained and becoming experienced in their duties, that the employees should not be expected to perform the PPQA checks until being classified at Brewery Employee - Packaging, Grade 2.

[31] The Commission determines accordingly.

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<Price code C, AE895398  PR541911>