United Voice v Cascade Brewery Company Pty Ltd
[2012] FWA 6652
•6 AUGUST 2012
[2012] FWA 6652 |
|
DECISION |
Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
United Voice
v
Cascade Brewery Company Pty Ltd
(AG2011/10903)
Food, beverages and tobacco manufacturing industry | |
DEPUTY PRESIDENT LEARY | HOBART, 6 AUGUST 2012 |
Application to vary an agreement to remove an ambiguity or uncertainty.
[1] This is an application by United Voice (the Union) pursuant to s.217 of the Fair Work Act, 2009 (the Act) to vary the Cascade Brewery Operations LHMU Enterprise Agreement 2010 (the Agreement) to remove an ambiguity or uncertainty. Discussions between the Union and the Cascade Brewery Company Pty Ltd (Cascade) have failed to settle the issues.
[2] The application seeks to vary the Agreement as follows:
“Clause 23:
This clause is amended by inserting an additional paragraph immediately following the paragraph in 23.1 as follows:
For the avoidance of doubt when an employee elected, or elects, to convert his/her weekly hours of work from 35 to 37 per week the basis of calculating the 37 hour rate will simply be to calculate 2 hours at double time on the 35 hour base rate. This calculation will occur each time the 35 hour base rates alter. Further, for the avoidance of doubt this method of calculation is the calculation that has applied from 10 June 1999.
Clause 24.1.1:
This clause is amended by inserting an additional paragraph after Hobart Regatta Day as follows:
For the avoidance of doubt Hobart Show Day, as a proclaimed day under the Statutory Holidays Act 2000 is a public holiday covered by the terms of this clause and has been since 2 February 1994.
Clause 24.4.2:
This clause is amended by inserting a new sub clause (i)(a) as follows:
For the avoidance of doubt day’s sick leave entitlement (however described) is, and has been, since 2 February 1994, 8 hours.
APPENDIX A:
The appendix is amended by inserting an additional paragraph immediately following the paragraph under the heading “Note” as follows:
For the avoidance of doubt when an employee elected, or elects, to convert his/her weekly hours of work from 35 to 37 per week the basis of calculating the 37 hour rate will simply be to calculate 2 hours at double time on the 35 hour base rate. This calculation will occur each time the 35 hour base rates alter. Further, for the avoidance of doubt this method of calculation is the calculation that has applied from 10 June 1999.”
[3] The Union relies on the following grounds in support of its application:
“Since the Agreement was made there have arisen a number of issues, as set out above, concerning the calculation of certain entitlements and benefits.
During discussion with the employer it has become obvious that the methods of calculation used by the employer go back many years.
The terms of the Agreement are ambiguous and United Voice has proposed a number of amendments to address the issues however the parties have been unable to reach agreement.
It is necessary that the ambiguities be removed.
The proposed orders will achieve the removal of the ambiguities.”
[4] Gavin Stewart Calvert provided sworn evidence, he has been employed by Cascade for approximately 25 years and has been involved in enterprise bargaining negotiations for various agreements since 1994. It was his evidence that the sick leave provision in the Agreement is ambiguous. He said that for his first four years of employment his entitlement to sick leave was expressed in hours and was 10 days per year and after the fourth year of service it increased to 11 days per year. If a sick leave day was taken 8 hours were deducted even though he was working a 35 hour week. It was his view that only 7 hours should have been deducted and his entitlement was 80 hours not 70 hours per annum. Mr Calvert cited an instance in July 1999 where he claims he was incorrectly paid his sick leave entitlement and referred to his payslips and a spreadsheet “that I’ve kept since 1998 which highlights where I was on every particular working day from that point right forward to this day now.” [PN64]
[5] Mr Calvert agreed that the 2007 Agreement included a provision that prescribed sick leave “was in fact to be 88 hours per year” and accrues at 88 hours per year. A day’s sick leave is deducted as 8 hours per day. He said that the Agreement now provides sick leave “exactly as it should be.” [PN346]
[6] In regard to the conversion from a 35 hour week to a 37 hour week Mr Calvert said that all employees worked a 35 hour week and in 1995 Cascade proposed that they convert to a 37 hour week. He said all employees were given the opportunity to convert and a formula using the level 1 base rate was agreed to implement the conversion, not all employees converted at the time.
[7] He converted at the time according to the agreed formula. It was his evidence that sometime later when other employees converted they did so on a higher base rate which was he said a result of the introduction of a competency based system. He said they therefore received a higher base rate on conversion and had received the benefit of that higher rate which he had been denied and no adjustment had been made to recognise his earlier conversion at a lower base rate.
[8] It was Mr Calvert’s evidence that he is some $25 per week worse off compared to employees who converted at later dates. He did agree however that he had received the higher rate of pay for a longer period than those who converted at a later date but was still of the view that he had been disadvantaged. He also agreed that the current provision found in the 2007 and the 2010 Agreements reflected the agreed position reached between the parties as to the conversion issue. He said he voted against the Agreement but testified that there was no confusion as to what the clause meant and that there were 2 base rates applicable and he was aware which one applied to him but does not believe “that is the base rate that I should be on.” [PN316]
[9] In regard to the claim that Hobart Show Day be added to the Public Holiday list Mr Calvert said that it had always been treated as a Rostered Day Off (RDO) not as a public holiday but he said Show Day is recognised as a public holiday and was treated as such in 2011 for the first time. The issue of Public Holidays was raised when Anzac Day fell on another Public Holiday and an alternative day was not gazetted in Tasmania. Mr Calvert agreed that Show Day had never been a named Public Holiday and was not subject to a claim or negotiations for the current Agreement. He agreed that “..there’s never any arrangement that you would get Hobart Show Day” [PN 372]
[10] Sworn evidence was provided by Brendan Patrick Richardson who is a Director of PPR and Associates. About March 1994 Mr Richardson was Manager Employee Relations for Carlton and United Breweries Limited, in or about 2003 he became Manager - National Employee Relations of Foster’s Group Limited and held that position until 2011.
[11] He said that he became involved in matters related to Cascade from 2003 onwards and provided advice in relation to the negotiations for the 2010 Agreement. He referred to the Union log of claims and noted that it stated that “all existing conditions of employment are to be retained save and except for those modified as proposed in the Log of Claims.” He said that the 2010 Agreement was approved by employees in or about December 2010 and was aware that in or about November 2010 Mr Calvert was raising issues about long service accrual and queried the conversion calculation for the 37 hr week.
[12] It was his evidence that the issue of the conversion calculation and the changes to ordinary hours was not discussed in the 2007 negotiations until the agreement was quite progressed but that it was agreed that a more prescriptive clause would be inserted in the Agreement. The clause demonstrated the differential in the rates between employees who converted during the life of the Agreement and he does not recall any dispute being raised by the Union about the different rates other than some recollection of Mr Calvert raising the issue with Cascade.
[13] Mr Richardson noted that none of the previous agreements had provided for Hobart Show Day to be considered as a Public Holiday.
[14] He agreed that the sick leave provision now provided 10 days (80 hours) per annum or after 4 years 11 days (88 hours) and discussed the history of the provision.
[15] John Saliba is employed by the Foster’s Group Limited as the Human Resources Manager for Supply Northern and his evidence discussed the conversion process from 35 to 37 hours. He said that a letter he wrote which said “...the calculation will take place each time the 35 hour base rate alters” was for the purpose of establishing the employee’s 37 hour base rate at the time of conversion, he said it was not the intention, and it was never expressed as such, that the formula would apply to every future wage increase.
[16] His evidence was that he recalled there was some confusion as to the calculation for conversion purposes and the letter he provided was to clarify the position. He disagreed that the letter supported the Union position that the calculation would continue for every wage increase saying that “If what you are suggesting is to be true that would result in additional costs to the business which I wouldn’t have authority to approve and I would need to pursue that further with a number of different individuals.” [PN447]
[17] It was submitted by the Union that the Agreement and previous agreements have been ambiguous or uncertain in relation to sick leave calculations and inconsistencies have impacted on accrued sick leave entitlements.
[18] The Union submitted that Hobart Show Day had been a Public Holiday in Tasmania since 1919 and is contained in the Statutory Holidays Act as such. Cascade had in the past allowed employees to take a RDO on Hobart Show Day so it was not treated as a Public Holiday but represented accrued hours to enable a RDO. It was said that there is no evidence that any agreement existed to replace Hobart Show Day with any other day such as Union picnic day or Union leisure day.
[19] Reliance was placed on the memo from Mr Saliba that in regard to the 35/37 hour conversion that the rate would be recalculated every time there was a wage movement, this the Union argued was the way the calculation should continue to be applied.
[20] [20] Cascade submitted that the application before FWA was in fact an application pursuant to s.217 of the Act claiming ambiguity and uncertainty. It was submitted that the decision of the Full Bench in Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 [PR917548] considered ambiguity and said:
“We now turn to the question of whether the Agreement is ambiguous or uncertain. In this regard the Commission has to make an objective judgement about whether, on a proper construction of the relevant provision of an agreement, the wording of the provision is susceptible to more than one meaning. In SJ Higgins Pty Ltd and others v CFMEU, after referring to the Victorian Public Transport case, SDP Williams said:
"It must be noted, however, that, immediately prior to its reference to the observations of Gray J, that Full Bench stated that the first part of the process "involves an objective assessment as to whether or not an ambiguity or uncertainty exists". In my view, it is not enough that there are or may be rival contentions as to the proper construction of the terms of an award or agreement. Nor is it enough that claims may have been made in the field for the application of a particular provision in circumstances and its applicability of the provision is disputed. Such contentions and claims may well be self serving. The correct approach, as applied by the Full Bench, requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than on meaning".
[21] In respect to the claim that the clause relating to the 35/37 hour per week conversion it was submitted by Cascade that the evidence revealed that much effort had been put into amending the Agreement to ensure that it was very clear as to what those ordinary work arrangements would be. Mr Calvert’s evidence was that the clause and the rates in the Agreement were very clear to him and he had no difficulty understanding what the words said and meant. It was his evidence that he did not agree with the rate which had been applied to him. That may be so; but because he may disagree with the application of the clause it does not follow that the clause is ambiguous or uncertain; just that Mr Calvert disagrees with its application.
[22] In regard to the claim that the sick leave clause should be amended as it is ambiguous and uncertain Cascade submitted that the clause is clear and concise and that the complaint by Mr Calvert has a long history which is unrelated to the clause in the current Agreement.
[23] The evidence was that Hobart Show Day has never been recognised as a public holiday and that Cascade had accommodated employees to have a four day weekend by rostering RDOs to coincide with the Show Day holiday. Cascade said that the employees enjoyed more public holidays than the general community and continue to receive 12 days. In fact in 2011 a decision was made locally that Show Day would be treated as a public holiday and the same will apply for 2012. Further Cascade said that even if an entitlement exists under the National Employment Standards of the Act, which Cascade deny, that does not represent an ambiguity or uncertainty. It would be an argument about an entitlement.
[24] Cascade said that the evidence of Mr Calvert was largely irrelevant as it was little more than a “personal grievance by an employee that he has been unfairly treated since 1996.” [PN533] The evidence shows that the matters of concern to Mr Calvert had been raised and addressed during negotiations for both the 2007 and 2010 agreements. The Agreement was supported by a majority of employees and just because Mr Calvert may not agree with the application of some of the provisions is not a basis for varying the Agreement claiming ambiguity.
[25] It was submitted that the claims by the Union was an attempt to create past rights for events that happened in around 1994. Even if FWA agreed with the claims it is unlikely and possibly impracticable to back date any of them beyond the life of the current Agreement.
[26] Cascade referred to a number of decisions which consider the approach to be taken in these sorts of applications. In the Australasian Meat Industry Employees’ Union and Australian Country Choice (Slaughtering and Boning Operations) Enterprise Agreement 2011 [2011 FWAA 7899] Commissioner Booth set out the law as follows at para [9]:
“ The approach to be taken in considering an application under s.217 of the Act has been clearly outlined in a number of cases. The applicant argued that the decision of Fosterville Gold Mine Pty Ltd [2011] FWA 316 provides a summary of the law (the respondent generally agreed). Fosterville detailed a two stage approach:
“a. The Tribunal should approach the matter by way of two stages. Firstly, as a jurisdictional pre-requisite, identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty has been identified, FWA has discretion whether or not to vary the agreement. Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (Full Bench, 9 May 2002, PR917548) at [28], [32] & [35].
b. The first part of the process (ie identifying ambiguity or uncertainty) involves an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context. See Re Tenix at [29].
c. The Tribunal will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and arguable case is made out for more than one contention. See Re Tenix at [31].
d. However, the Tribunal must make a positive finding that the agreement is uncertain or ambiguous. Being satisfied of ambiguity or uncertainty on a prima facie basis is not sufficient. See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].
e. It is not sufficient that there are rival contentions as to the proper construction of the terms of the agreement. Such contentions may be self serving. The Tribunal’s task is to mark an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. See Re Civil Construction Corporation Enterprise Agreement (Ross VP, 13 October 2002, PR939346); SJ Higgins v CFMEU (Williams SDP, 2 May 2001, PR903843); RE CFMEU Appeal (Full Bench, 25 February 1999, Print R2431).
f. In terms of the second stage of the process, once an ambiguity or uncertainty has been identified, in exercising the discretion of the Tribunal whether or not to vary the agreement, the Tribunal is to have regard to the mutual intention of the parties at the time the agreement was made. See Re Tenix at [32].”
[27] The above is a good summary of the approach to be taken for a s.217 application and I agree with it.
[28] It would seem that the issues in dispute are more about Mr Calvert not being satisfied with some of the outcomes of negotiations, and their application, going back to the mid 1990s, and how they impact on him personally. The evidence reveals that much attention has been paid to Mr Calvert’s grievances and both the 2007 and the 2010 Agreements, with his active participation, have been expressed in language with which he agrees and understands but remains, it would seem, unhappy as to the application of some of those provisions.
[29] The Agreement was supported by a majority of employees, approved as required under the Act and reflects the intentions of the parties.
[30] In this matter there is no ambiguity or uncertainty about the words in the relevant clauses of the Agreement; in fact it was the evidence of the witness for the applicant, Mr Calvert, that the words mean what they say and he clearly understood them.
[31] Accordingly there is no jurisdictional basis to exercise my discretion.
[32] The application is dismissed.
DEPUTY PRESIDENT
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