United Workers' Union v George Weston Foods Limited T/A Tip Top Bakeries

[2021] FWC 6624

[2021] FWC 6624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Workers’ Union
v
George Weston Foods Limited T/A Tip Top Bakeries
(C2021/5011)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 DECEMBER 2021

Alleged dispute about a matter arising under an enterprise agreement.

[1] On 24 August 2021, the United Workers’ Union (UWU) filed an application under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute about the classification of their member, Mr David Kurtovic. The UWU made its application raising a dispute with George Weston Foods Limited T/A Tip Top Bakeries (Tip Top Bakeries) pursuant to clause 11 of the Tip Top Bakeries Operations (Victoria) Agreement 2021. 1

[2] The dispute was the subject of conferences before me on 30 August 2021 and 23 September 2021, however, the matter did not resolve. Thereafter the parties further considered their positions and ultimately agreed to have a jurisdictional objection that has been raised by Tip Top Bakeries determined by me.

Background

[3] Mr Kurtovic completed his baking apprenticeship at Tip Top Bakeries in or around 2012. He primarily works as a baker. In the period since 2012, the following enterprise agreements have covered Mr Kurtovic’s employment (collectively, the Agreements):

•  From 14 October 2011 to 13 July 2014, the Tip Top Bakeries Operations (Victoria) Agreement 2011 (the 2011 Agreement);

•  From 14 July 2014 to 30 August 2017, the Tip Top Bakeries Operations (Victoria) Agreement 2014 (the 2014 Agreement);

•  From 31 August 2017 to 8 June 2020, the Tip Top Bakeries Operations (Victoria) Agreement 2017 (the 2017 Agreement);

•  From 9 June 2020 to 8 August 2021, the Tip Top Bakeries Operations (Victoria) Agreement 2020 (the 2020 Agreement); and

•  Since 9 August 2021, the Tip Top Bakeries Operations (Victoria) Agreement 2021 2(the 2021 Agreement).

[4] Between 2012 and 2017, Mr Kurtovic was classified by Tip Top Bakeries as a Level 4 production employee. It would appear that in November 2017, Mr Kurtovic was re-classified as a Level 5 production employee with effect from the commencement date of the 2017 Agreement, being 31 August 2017. A subsequent review by Tip Top Bakeries in 2021 revealed that when the 2017 Agreement was approved, all Tip Top Bakeries employees were back paid increases to the first full pay period on or after 1 March 2017.

[5] Mr Kurtovic claims that since the completion of his trade qualification in 2012, he has been undertaking the tasks and duties of a Level 5 production employee. He therefore claims that for the period between 2012 until 2017, he should have been classified as a Level 5 employee. While Tip Top Bakeries proposed making payment to Mr Kurtovic at the L5 classification rate for the period 1 March 2017 to 31 August 2017 in a letter dated 29 June 2021, this proposal has to date not been accepted by Mr Kurtovic. Instead, Mr Kurtovic maintains a claim for payment at the L5 classification rate from 2012 onwards.

[6] The Settlement of Disputes clause in each of the Agreements has outlined the Disputes resolution procedure at clause 11.1 as follows:

“11.1 Disputes resolution procedure

Grievances or disputes including matters relating to the National Employments Standards shall be dealt with by the following procedures.”

[7] Tip Top Bakeries submits the question for determination is whether the 2021 Agreement provides the Commission with jurisdiction to determine the classification of Mr Kurtovic under the 2014 Agreement.

[8] The UWU submits that the question for determination is whether the 2021 Agreement provides the Commission with jurisdiction to determine the dispute around the incorrect classification of Mr Kurtovic as set out in the “revised contract of employment” provided to him on 29 June 2021. However, the UWU submits the Commission has jurisdiction to determine either question.

[9] In practical terms, the parties are in dispute regarding the classification applicable to Mr Kurtovic’s employment from 2012 to 2017, during which time the 2011 Agreement and then the 2014 Agreement were in operation.

Principles and submissions

[10] The principles that apply to the interpretation of an enterprise agreement have been outlined by the Full Bench of the Commission in AMWU v Berri Pty Ltd 3 (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.4 The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.5

[11] Further, the correct approach was succinctly put by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 6as follows:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted)

[12] Berri further provides that the first task in construing an enterprise agreement is to determine whether an agreement has a plain meaning or is ambiguous or susceptible of more than one meaning. 7

[13] As outlined above, clause 11.1 of the 2021 Agreement provides as follows:

“11.1 Disputes resolution procedure

Grievances or disputes including matters relating to the National Employments Standards shall be dealt with by the following procedures.”

[14] The UWU submits that Clause 11.1 is clear and unambiguous in its operation to cover ‘grievances or disputes’ generally, rather than limiting the operation in relation to the terms of the 2021 Agreement. Further, it says the disputes procedure in the 2021 Agreement is sufficiently broad to capture both possible questions for determination. The UWU relies on Boeing Aerostructures Australia Pty Ltd v Gualano 8 and Transport Workers' Union of Australia v Qantas Airways Ltd9 in submitting clause 11.1 is broad enough to encompass a dispute that arose under a predecessor agreement and contends it would be difficult to envision a clause that could be any broader.

[15] Tip Top Bakeries submits that the scope of the dispute resolution procedure is limited to matters that rise under the 2021 Agreement only. It says that absent an express term in clause 11 preserving the right of parties to pursue matters that arose under predecessor agreements, clause 11 of the 2021 Agreement is limited to matters arising under the 2021 Agreement.

[16] Tip Top Bakeries relies on Clause 8 of the 2021 Agreement, which deals with the relationship of the 2021 Agreement to Awards and the National Employment Standards and provides:

“8.1. This Agreement operates to the exclusion of all:

•  enterprise instruments within the meaning of the Fair Work Act 2009

•  award-based transitional instruments.

8.2. This Agreement wholly supersedes and replaces all previous registered agreements /agreement-based transitional instruments, including without limitation the Tip Top Bakeries, Operations (Victoria) Agreement 2020.

8.3. The National Employment Standards (NES) under the Fair Work Act 2009 apply to Employees covered by the Agreement, except where this Agreement provides a more favourable outcome. The NES are not incorporated into this Agreement.”

[17] As Tip Top Bakeries observes, Clause 8 has been essentially unchanged since the 2014 Agreement. It submits clauses 8.1 and 8.2 of the 2021 Agreement provide in clear and unambiguous terms that the 2021 Agreement excludes any operative effect of any predecessor enterprise agreement and that clause 11 must be interpreted in this context. It argues a dispute cannot be brought under clause 11 that relates to the classification of an employee which arose under predecessor and no longer operative enterprise agreements.

[18] While Tip Top Bakeries also raises clause 47 of the 2021 Agreement (a ‘no extra claims’ clause), I am not persuaded that what is being sought by the UWU falls within the meaning of an extra claim.

Consideration

[19] As the role of the Commission in resolving this dispute is one of private arbitration defined by the terms of the 2021 Agreement, it is necessary to characterise the dispute between the UWU and Tip Top Bakeries and determine whether it falls within clause 11 of the 2021 Agreement. The scope of clause 11 is relatively broad, extending as it does to “grievances or disputes including matters relating to the National Employment Standards”.

[20] The ‘grievance’ or ‘dispute’ in this matter is whether Mr Kurtovic was correctly classified and paid during periods that do not fall within the operation of the 2021 Agreement. As previously observed, the ‘grievance’ or ‘dispute’ arises in relation to Mr Kurtovic’s correct classification (and therefore, rate of pay) firstly during a period in which the 2011 Agreement operated and then a period during which the 2014 Agreement operated, both of which were before the 2021 Agreement was made and commenced operation.

[21] The UWU relies on an observation by Deputy President Colman in Transport Workers’ Union of Australia v Qantas Airways Ltd 10to submit that a new enterprise agreement might be a source of jurisdiction where the scope of the disputes procedure is sufficiently broad to cover disputes that originated under an earlier agreement. The observation of the Deputy President in that case was made with reference to his decision in Boeing Aerostructures Australia Pty Ltd v Gualano11(Boeing). In Boeing, the Deputy President was concerned with an application for the Commission to deal with a dispute filed in accordance with the dispute settlement procedure in the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014. Following the filing of the application, that agreement was superseded by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018. The coverage of the two agreements was the same but the earlier agreement was no longer in operation. The dispute resolution clauses in the two Agreements and the clauses giving rise to the dispute were essentially identical. The Deputy President concluded that the scope of the dispute procedure in the latter agreement (which applied to ‘the resolution of problems’) was broad enough to encompass an ongoing dispute that arose under the predecessor agreement concerning the current application of identical provisions in the latter agreement.  The Deputy President ultimately concluded he could determine the application before him under the latter agreement.

[22] I am not persuaded a comparison can be made with Boeing that assists the UWU because Boeing concerned a dispute that was filed regarding the operation of an agreement which was subsequently replaced by another agreement before the dispute had been resolved by the Commission, whereas the matter before me concerns a dispute filed during the operation of the 2021 Agreement regarding the rate of pay applicable during the operation of both the 2011 Agreement and the 2014 Agreement. The dispute before me was not raised during the operation of either the 2011 Agreement or the 2014 Agreement and nor did it carry over during the operation of the 2017 Agreement, the 2020 Agreement or into the period of operation of the 2021 Agreement. Further, no wording in the agreements applicable in Boeing resembles that which is found in clause 8 of the 2021 Agreement.

[23] A review of clause 8 in each of the Agreements reveals that each has been wholly superseded and replaced by the next and operated to the exclusion of predecessor agreements. ‘Grievances or disputes’ in clause 11.1 of the 2021 Agreement must be read in context with clauses 8.1 and 8.2 of the 2021 Agreement, such that grievances or disputes regarding the application of the terms of the 2011 Agreement and the 2014 Agreement are excluded from the scope of clause 11 of the 2021 Agreement, they having been superseded and replaced, firstly by the 2017 Agreement, then the 2020 Agreement and finally, the 2021 Agreement. The 2021 Agreement contains no provision that saves or preserves disputes regarding circumstances that existed under the 2011 Agreement or the 2014 Agreement.

Conclusion

[24] The Commission has no jurisdiction to arbitrate this dispute because it concerns a ‘grievance’ or ‘dispute’ concerning wages paid during the periods during which the 2011 Agreement and the 2014 Agreement were in operation and the 2021 Agreement currently in operation provides that it both excludes enterprise instruments within the meaning of the Fair Work Act 2009 and supersedes and replaces all previous registered agreements.

[25] As I have upheld the jurisdictional objection of Tip Top Bakeries, the UWU’s application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms P Minhas for the United Workers’ Union (UWU).
Mr L Buntman (Ai Group) on behalf of George Weston Foods Limited T/A Tip Top Bakeries.

Hearing details:

2021.
Melbourne (via video on Microsoft Teams):
November 26.

Printed by authority of the Commonwealth Government Printer

<PR736886>

 1   AE512569.

 2   AE512569.

 3   [2017] FWCFB 3005.

 4   [2014] FWCFB 7447.

 5   [2017] FWCFB 3005 at point 1 in [114].

 6 [2018] FCAFC 131, 264 FCR 536.

 7 Ibid at point 7 in [114].

 8   [2018] FWC 7490 at [9]-[10].

 9   [2019] FWC 5050 at [20].

 10   [2019] FWC 5050 at [20].

 11   [2018] FWC 7490.