United Voice v Schweppes Australia Pty Ltd
[2015] FWC 7972
•24 NOVEMBER 2015
| [2015] FWC 7972 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Voice
v
Schweppes Australia Pty Ltd
(C2015/560)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 24 NOVEMBER 2015 |
Application to deal with a dispute.
Introduction
[1] On 16 March 2015 United Voice, New South Wales Branch, Liquor and Hospitality Division (United Voice) lodged an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in an agreement pursuant to s.739 of the Fair Work Act 2009 (the Act).
[2] The respondent is Schweppes Australia Pty Ltd (Schweppes) in respect of its factory which manufactures soft drinks and related products at Huntingwood in Western Sydney.
[3] The relevant agreement is the Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013 – 2016 [AE404918] (the Agreement).
[4] The application referred to the creation of a new position of “Manufacturing Supervisor” to perform duties on the “new B2 line”. The duties were covered by the Agreement, United Voice claimed, but it was intended that the employees would be “staff managers” rather than agreement covered employees. These employees would be financially penalised because of this change’s impact on the allocation of overtime. The performance of these duties is contrary to Clause 3 – “Coverage”of the Agreement it is submitted. United Voice sought an order prohibiting the Manufacturing Supervisor from performing duties covered by the Agreement.
Relevant Provisions of the Agreement
[5] The Agreement is the latest in several versions negotiated by the parties for the site. It was approved by myself on 23 October 2013 and its nominal expiry date is 1 November 2016.
[6] The relevant clauses are:
“3. Coverage
3.1 This Agreement shall cover all employees engaged at the company’s workplace at 27 Huntingwood Drive, Huntingwood NSW 2148 engaged in classifications set out in the classification in Attachment A. The agreement does not apply to executive or senior staff mangers or clerical / administrative staff.
3.2 The parties covered by the Agreement are Employer, the Employees and United Voice, Liquor & Hospitality Division, NSW Branch (“the Union”). . . .
15.1 Classification Structure
15.1.1 Attachment A of this Agreement sets out the classification structure grading that all Schweppes, Huntingwood permanent employees covered by this Agreement, will work to. The Classification Structure will be effective from the date this Agreement is signed.
15.1.2 Management and employees are committed to working together over the next 12 months to agree on the training requirements for each of the grades within the structure and the processes to ensure current and new employees are adequately trained and graded.
15.1.3 Classification structure and point system information from previous Agreement will be referenced when putting together future supporting processes.
15.1.4 The introduction of this revised Grading structure is intended to:
- Ensure the site has the skills and capability to successfully deliver on its business requirements:
- Ensure that employees who want a career path and opportunity to grow and develop can do so:
- Ensure that employees who don’t want to progress their career are not financially disadvantaged; and
- Ensure job security for all employees by creating opportunities for the Huntingwood site to expand.
15.1.5 The Business commits that all current, permanent Schweppes Huntingwood EA employees will continue to receive their current level of remuneration and will continue to receive annual EA increases.
15.1.5 Employees who commenced prior to November 2010 will retain their hourly pay rate without modification and will not be graded lower than Grade 5 in the new classification structure, unless such change is accepted by a vote of employees where the vote is restricted to employees employed prior November 2010.
15.1.7 Employees commencing post November 2010 are excluded from voting on modifications to the existing employee’s hourly rate or their grading.
15.1.8 The business is aware that some current employees may decide that they do not wish to further develop their skill level and these employees will not be required to do so. However, they will work with the business to deliver on the requirements of their current level.
15.1.9 No existing employee will be disadvantaged in respect to remuneration or conditions of employment or terminated as a direct result of the introduction and/or application of the new classification structure.
15.1.10 Training programs and places on those programs will be made available by the Employer according to its current and future operational needs having regard to the skills profile of the workforce as well as the need to satisfy the aims of the training programs.
[7] The classification levels are as follows:
“15.4.1 Minimum Rates for existing permanents commencing prior to November 2010
Grade |
Grade 1 (previous EBA Trainee/Entry) |
Grade 2 (previous EBA Level 1) |
Grade 3 (previous EBA level 2) |
Grade 4 (previous EBA level 3 – Manufacturing/Trades) |
Grade 5 (previous EBA level 3 – Manufacturing / Trades |
Grade 6 (previous EBA level 3A) |
Grade 7 |
15.4.2 Minimum Rates for New Permanents commencing after November 2010
Grade |
| Grade 1 |
| Grade 2 |
| Grade 3 |
| Grade 4 |
| Grade 5 |
Grade |
| Grade 6 |
| Grade 7 (Senior Leadership role in Production / Quality / Maintenance) |
[8] The definitions of the classifications are in Attachment A to the Agreement.
Attachment A
Classification Structure and Definitions
Current Level @ Nov 2010 | Proposed Grade @ Nov 2010 | From EA Approval | Classification / Training Requirements | Alignment with AQF | Progression Requirements | Training Timeframe |
Entry / Trainee | Grade 1 | Entry Level | 6 months | |||
Level 1 | Grade 2 | No. Machines/ Processers | Skills and Competency based assessment | 12 months | ||
Level 2 | Grade 3 | No. Machines/ Processors | Certificate II | Skills and Competency based assessment | 18 months | |
New Level | Grade 4 | Multi-skilled | Certificate III | Vacancy Driven | ||
Level 3 – Manufacturing/Trades | Grade 5 | Senior Multi-skilled or Specialist Trades | Trades Certificate/ Certificate IV | Vacancy Driven | ||
Level 3 | Grade 6 | Team Leader | Management Appointment | |||
Level 4 | Grade 7 | Senior Leadership Role in Production/ Quality/ Maintenance | Management Appointment |
[9] Clause 8 “Dispute Resolution” deals with a dispute which relates to:
“(a) A matter arising under the Agreement; or
(b) The National Employment Standards.”
It provides for binding arbitration by the Commission if the dispute cannot be resolved after the steps in the procedure have been completed.
[10] Therefore, it was agreed that s.738 and s.739 of the Act provide the Commission with jurisdiction to arbitrate in accordance with the disputes clause of the Agreement provided that the dispute can be characterised as falling within the ambit of that clause.
Commission Proceedings
[11] The matter was dealt with in conference by me on 22 April 2015. The next day I issued a statement which summarised the process agreed which was essentially to exchange each of the parties’ positions in writing and a meeting to then take place between them.
[12] Schweppes maintained its position that the Manufacturing Supervisor position was not covered by the Agreement but that an ancillary task was to provide line machine relief duties so that the operation would be continuous. It argued that the Agreement did not prevent this. Whilst the role was supervisory it was not office-bound and therefore relief machine operation tasks would be required from time to time to keep the line operating.
[13] I note, at this stage, that the creation of the role arose from the introduction of the new blow-mould line at Huntingwood. This involved bringing in-house the moulding of the various plastic bottles used for the products. This was previously done outside the factory by Visy. Small coloured plastic tubes are now delivered to the factory. They are the moulded into the appropriate bottles for the various products. The bottles are then filled on the same line. The line went live on 16 June 2015 and active production started 16 August 2015.
[14] Further meetings between the parties did not resolve the matter and it was listed for a further conference on 30 June 2015.
[15] There was particular focus at this conference on the effect the new position would have on the availability and allocation of overtime for Agreement covered employees. A document entitled “Huntingwood Overtime Guidelines” was tabled. This was a Schweppes policy which did not form part of the Agreement. It provided a mechanism for the allocation of overtime once management had decided that either scheduled or unscheduled overtime was required. An overtime tracker system records overtime worked and availability for overtime. Selection is on the basis of a number of criteria where there are more employees available than are required. These are:
● Skill requirements for the job
● Least overtime worked within the past two weeks
● Any unplanned absence by the employee within the past week
[16] The aim is that overtime will be equalised amongst employees.
[17] No agreement was reached. On 30 June 2015 directions were issued. I conducted an inspection at the site on 18 September and the hearing took place on 22 September.
[18] United Voice was represented by Mr C. Acev and Schweppes by Ms K. Aistrope. Ms Aistrope was granted permission to appear pursuant to s.596 of the Act.
[19] United Voice relied on its written submissions and witness statements and oral evidence of the following of its members:
● Benjamin White (Exhibit UV1)
● Patrick O’Connor (Exhibit UV2)
● Gareth Campbell (Exhibit UV3)
[20] Schweppes relied on its written submissions and the witness statement and oral evidence of Mark Hoogesteger (Exhibit S2) the Commissioning and Start-Up Lead (Blow Mould Project).
United Voice’s Case
[21] United Voice accepted Schweppes’s position that the Manufacturing Supervisor position would not be covered by the Agreement. Clause 3, quoted above, makes it clear that the Agreement does not apply to these employees. United Voice submits that the Commission should stop the Manufacturing Supervisor from performing work that it argues is work covered by the Agreement and which is properly performed only by Agreement covered employees.
[22] It submits that this is consistent with the intention of the parties in negotiating the Agreement and the custom and practice on the site.
[23] United Voice tendered the Agreements on the site dating from 2002. The 2007 – 2010 version introduced the exclusionary words for staff employees. It is said that this confirms the non-performance of “production work” by staff.
[24] Patrick O’Connor is a Team Leader who is now assigned to the new B2 line. His evidence was that since 2000 he had not seen staff perform work on the line. As Team leader he would do relief work until the Manufacturing Co-ordinator found an overtime replacement. Currently relief for breaks on the B2 line is provided by Agreement employees.
[25] Benjamin White, who commenced in 1999, testified that absences have been covered by Agreement employees allocated by the Manufacturing Co-ordinators, utilising the overtime guidelines. This has continued on the new line. He has transferred from a Team Leader on the old line to an operator on the new line.
[26] Gareth Campbell, the United Voice delegate, gave evidence of the intention of the negotiating parties that the Agreement covered production work and that this would only be done by Agreement employees.
[27] United Voice submitted that the Commission had jurisdiction to arbitrate the dispute because it is one about the application of the Agreement and therefore comes within Clause 8 of the Agreement. In order to resolve the dispute United Voice sought the following draft determination:
“DRAFT DETERMINATION
1. That the position of Manufacturing Supervisor is a position that would be correctly categorised as falling into the class of positions referred to in the Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013 – 2016 as “executive or senior staff mangers or clerical / administrative staff”.
2. That the intent and purpose of Clause 3.1 of the Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013 – 2016 is that executive or senior staff managers or clerical / administrative staff are prohibited from performing duties associated with the classifications referenced at Attachment A of the Schweppes Australia Huntingwood (SW) Enterprise Agreement 2013 – 2016).
3. That the Manufacturing Supervisor is prohibited from performing duties associated with the classifications referenced at Attachment A of the Schweppes Australia Huntingwood (NSW) Enterprise Agreement 2013 – 2016).”
Schweppes’ Case
[28] Schweppes submitted that it had decided that it needed a new managerial role to oversight the new line. The new Manufacturing Supervisor position was a senior staff position and therefore not covered by the Agreement. It was intended to be more “hands on” being located on the production floor and involving:
● training
● performance management and discipline
● problem solving
and ensuring that the line keeps running continuously. The last responsibility could involve relief of Agreement employees.
[29] Schweppes characterised the dispute as whether or not Manufacturing Supervisors can perform duties on the production line which are part of the role performed by employees covered by the Agreement. They submit that it is not a dispute about the coverage of the Agreement because it is conceded that the Manufacturing Supervisor position is not covered by the Agreement.
[30] In any event, Schweppes submits that there is no provision of the Agreement which prevents a staff employee from performing work covered by the Agreement, i.e. duties included in the roles of Agreement covered employees. Absent any express provision in the Agreement, Schweppes can determine who and when work is performed and by whom.
[31] Schweppes submits that because the Agreement excludes staff employees it does not mean that only Agreement covered employees can perform production line work. There is no ambiguity and the plain and ordinary meaning of the clause should be applied. It describes who is and who is not covered by the Agreement.
[32] Schweppes also disputes the United Voice argument based on custom and practice. The right to overtime for Agreement covered employees is not automatic and management reserves the right to decide whether it is necessary. The Overtime Guidelines will still apply for Agreement covered employees.
[33] Mr Hoogesteger’s evidence detailed the amount of training given to employees on the B2 line, especially the Manufacturing Supervisors. The Manufacturing Supervisors approach has been taken in the business nationally. A copy of the position description for the Manufacturing Supervisors position was attached to his witness statement. Three positions have been created. He asserted that the Manufacturing Supervisor’s focus was on managerial duties but their training and skill levels meant that they would be able to assist with the running of the line if necessary to ensure continuous production. Moreover, it is not uncommon for managerial employees to perform work on the production line. The position description makes it clear that any machine operation will be for relief activities only.
The Commission’s Approach to the Construction of Agreements
[34] The 2014 Full Bench decision in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) FWCFB 7447 (Golden Cockerel) sets out the Commission’s approach to the interpretation of agreements. I set out below the relevant passages which refer to the relevant authorities:
“General Approach
19. The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (Wanneroo):
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). ” (Wanneroo)
20. To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 (Kucks) that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, 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.” (Kucks)
21. Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements. See: Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd[2011] FWAFB 2555 at [11] For example, similar observations were made in Amcor Limited v CFMEU.(2005) 222 CLR 241 (Amcor):
“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” (Amcor) at 253 per Gummow, Hayne and Heydon JJ
22. The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:
“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“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.” (2006) 153 IR 426 at 440
Use of extrinsic material as an aide to interpretation
23. As is often the case in disputes that involve the construction of an enterprise agreement, parties will seek to place reliance of a variety of extrinsic material as an aide to interpreting the provisions of an agreement in issue. The use to which extrinsic material of the surrounding circumstances may be put to assist in the interpretation of an instrument is set out in the judgement of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337(Codelfa). In Codelfa his Honour said:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” (Codelfa) at 352
[35] The Full Bench then dealt in some detail with subsequent cases which took varying approaches to the determination of an ambiguity. It went on to conclude as follows:
“30. Regard may therefore be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter ambiguity is not identified extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aide in the interpretation of the instrument. In this context we would make the observation that the law in relation to the interpretation of commercial contracts (Codelfa; Metcash and Stratton) has now aligned with the approach to the construction of awards and enterprise agreements as espoused by Burchett J in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 and confirmed by French J, as he then was, in Wanneroo.
Application of the Acts Interpretation Act 1901 to enterprise agreements approved under the Act
31. Both at first instance and before us the Appellant maintained that the Agreement must be interpreted in accordance with the Acts Interpretation Act 1901 (AI Act). (AB268-AB271 and Transcript PN271-PN280) That proposition is made on the basis that an enterprise agreement is an agreement that is made by the Commission pursuant to a power conferred by the Act to make the agreement. (See Section 46 of the AI Act) To make good the proposition the Appellant at first instance relied on the following passage from the judgement of French J in Wanneroo:
“The interpretation of legislative instruments is dealt with in the Legislative Instruments Act 2003 (Cth). Awards and agreements made under the Act are declared, by s 7(1) of the Legislative Instruments Act, not to be legislative instruments – see Item 18 in the table set out in s 7(1). This leaves such awards and agreements within s 46 of the Acts Interpretation Act 1901 (Cth) which provides, inter alia:
‘(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and
(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.
An award is an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.” (2006) 153 IR 426 at 438 [52]
32. The decision in Wanneroo does not support the proposition contended by the Appellant. In Wanneroo Justice French was concerned with the construction of an award under the Workplace Relations Act 1996 (WR Act) and not an enterprise agreement made under the Act. Relevantly, the award in question was an instrument that was not a legislative instrument but was an instrument made by the Australian Industrial Relations Commission pursuant to a power under the WR Act to make the instrument. Consequently French J concluded that the award was “an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act (AI Act) for the purposes of its interpretation.”
[36] The Full Bench, having dealt with s.172 of the Act, which contains the requirement for an agreement to be made about permitted matters (pertaining to the relationship between the employer and the employer’s employees) summarised its conclusions as follows:
“Summary
41. From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[37] I have applied the principles summarised above in this decision.
Jurisdiction of the Commission
[38] Despite Clause 8 providing for arbitration, Schweppes submitted that the dispute was not within the Commission’s jurisdiction to arbitrate. This was based on the admission by United Voice that the Agreement did not cover Manufacturing Supervisors. Schweppes characterised the dispute, therefore, as about the work of employees not covered by the Agreement.
[39] I do not accept this submission. The dispute is about the coverage of the Agreement. In particular it is about the meaning of Clause 3. It is also about how work is conducted on the site to which the Agreement applies. Even with United Voice’s concession, it is also about the work performed by Agreement covered employees as a result of the changes brought about by the introduction of the Manufacturing Supervisor position. The focus was on the impact on the overtime for Agreement covered employees but there is no doubt that there is an impact on what occurs in ordinary hours as well. Some of the changes are dealt with in the following exchange I had with Mr Hoogesteger:
“THE DEPUTY PRESIDENT: Can I just ask a few questions before you go? Can you just tell me what's happened to the roles and the positions of team leaders as a result of the V2 line being introduced?---The role of the team leader has been replaced with the supervisor.
What's your summary of the difference between the roles of the manufacturing supervisor and the team leader, as they were? Can you give me a picture of that?---Yes. The supervisor does the same things the team leader did, which is around troubleshooting, meal break relief, absence relief. On top of that, they also do performance management, coaching. They also manage maintenance, in terms of CILs, planning, executing. They also manage people's time cards, overtime allowances, and they also manage operational excellence or our continuous improvement Lean Six Sigma improvement tools. So it's really around people management, continuous improvement management and maintenance management.
Again, I ask you to just paint a general picture, and I understand there will be exceptions to this, but what is your anticipation of the general role that manufacturing supervisors will undertake in terms of relieving production employees?---So I'd expect that they relieve production employees on the blow moulder, on the labeller and packer, if the fitter can't do the labeller and packer, on the palletiser, and on the forklift, so basically the entire line, working with the fitter.
In what circumstances?---So for meal break relief. So every day they have comfort breaks, lunch breaks. Those breaks, as well as any unplanned absences, like we've talked about, when someone can't attend and doesn't have the skills onsite to run the like. You would expect that the supervisor would be able to stand in for a period of time to be able to run that equipment so the line doesn't stop.
When you say a period of time, what, in general terms, is it likely to be? For example, is it likely to be, say, half a shift, as long as that?---I'd expect maximum of half a shift. I'd expect we'd be able to get someone in faster, but we don't want the line to stop, so primarily, the maximum might be something like that. It might be a couple of hours until we get someone.” (Transcript PN482 - 486)
[40] The Commission’s jurisdiction to arbitrate arises from a combination of the Dispute Settlement Clause 8 and ss. 738, 739 and 595 of the Act. Clause 8 is drafted in broad terms and deals with disputes about a matter arising under the Agreement or the NES. The nature of the power to arbitrate derives from the dispute settlement clause. However, in exercising that power the Commission has a broad power, pursuant to s.595, to settle the dispute by making orders it considers appropriate.
[41] The task for the Commission is to make a finding as to how the relevant clauses in the Agreement are to be applied in the future. It is not a declaration about past rights or past compliance with the agreement by the employer. That would be a matter to be considered by a competent court. In doing so, the Commission must properly characterise the dispute. See Maritime Union of Australia v Australian Plant Services Pty Ltd (PR908236).
[42] In upholding my decision in a dispute between the CFMEU and Lend Lease, a recent Full Bench decision, Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union ([2015] FWCFB 1889) has confirmed the broad discretion given to the Commission to arbitrate pursuant to a dispute settlement clause:
“[22] No relevant limitation on the scope of the Commission’s power to arbitrate a dispute under clause 19 may be identified in the terms of clause 19 itself. It is not necessary to explore the outer limits of what might constitute a “dispute” for the purpose of clause 19, since there was no issue that the dispute concerning Mr Genovese’s return to work was one to which clause 19 applied. We consider that an unrestricted power to arbitrate a dispute involves the conferral on the decision-maker of a broad discretion. Lend Lease accepted in its submissions that the power exercised by the Deputy President was discretionary in nature and that (leaving aside for present purposes Lend Lease’s jurisdictional ground of appeal based on alleged inconsistency with State OHS laws), it was necessary for it to demonstrate error of the type identified in House v The King (1936) 55 CLR 499 at 504-5.”
[43] In summary, I am satisfied that there is jurisdiction to make an order to settle the dispute.
Conclusion
[44] I am not satisfied, however, that it is appropriate for me to make the order sought by United Voice.
[45] Applying the principles set out above from Golden Cockerel I am satisfied that Clause 3.1 means that the Agreement does not apply to managerial staff. It does not describe or restrict what work is done by managerial staff. In the absence of a provision which restricts or prevents staff employees from performing work covered by the Agreement, it would be inappropriate to make the order sought. The Agreement excludes managerial staff from its operation but this does not mean that only agreement covered employees can perform production work.
[46] Substantial changes in the Huntingwood Plant have arisen from the new B2 line. Consultation with the Union and its delegates commenced in February 2015. There was no suggestion that Schweppes had not met its consultation requirements. There was evidence as to the custom and practice on the site but most of that went to the allocation of overtime. The delineation between agreement covered work and managerial staff work may have changed but it has not been substantiated that this is contrary to the Agreement.
[47] The incidence clause of the Agreement is very broad and is based on the classifications which have brief descriptions, to say the least. Given the amount of change, especially to Team Leaders, United Voice might have claimed that the Agreement covered the Manufacturing Supervisors role. That would have meant a claim to amend the classification structure, and by extension, the coverage of the Agreement. It decided not to take that route, however. Rather, it seeks an order to determine what happens in respect of people who are not covered by the agreement. Given the content of the Agreement, I am not satisfied that such an order is appropriate.
[48] Notwithstanding my decision, I urge Schweppes to continue to consult United Voice, with a view to reaching agreement, on the impact of the new B2 line, any practical measures that can be taken to ensure that breaks are covered in the most efficient manner and the allocation of overtime.
[49] Accordingly, the application by United Voice is dismissed.
DEPUTY PRESIDENT
Appearances:
C. Acev for United Voice.
K. Aistrope, solicitor with R. Cluning for Schweppes.
2015
Conferences:
Sydney:
April 22;
June 30.
Inspection: (on site Huntingwood):
September 18.
Hearing details:
Sydney:
September 22.
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