United Workers' Union v Givaudan Australia Pty Ltd
[2024] FWC 2511
•16 SEPTEMBER 2024
| [2024] FWC 2511 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Givaudan Australia Pty Ltd
(C2024/2330)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 16 SEPTEMBER 2024 |
Alleged dispute about any matters arising under an enterprise agreement – dispute as to entitlement to Special Materials Allowance under the Givaudan Australia and United Workers Union Enterprise Agreement 2022.
Overview
An application has been made by the United Workers’ Union (UWU) for the Commission to resolve a dispute under the Givaudan Australia and United Workers Union Enterprise Agreement 2022 (Agreement). The Applicant was represented by Ms Annette Van Gent, Industrial Officer, UWU.
The Respondent to the dispute is Givaudan Australia Pty Ltd (Respondent). The Respondent was represented (with permission) by Mr Martin Watts, of Counsel, instructed by Ms Felicity Edwards, Partner, Sparke Helmore Lawyers.[1]
There is no dispute that the Agreement covers the UWU, the Respondent, and relevant employees of the Respondent. Nor is there any contest between the parties as to the jurisdiction of the Commission to resolve this dispute, being a matter arising under the Agreement, by way of arbitration in accordance with clause 8 of the Agreement, and s.739 of the Fair Work Act 2009 (Act). I equally make this finding.
The dispute between the parties
The parties are in dispute as to the proper construction of clause 22.2(f) of the Agreement (Special Materials Allowance (SMA)), which reads:
“Special Materials Allowance
A Special Materials Allowance is payable to all employees who work in an environment where they are required to wear Personal Protective Equipment (PPE) consisting of a full face mask with twin cartridges, gloves and safety clothing for a period of at least 1 hour.
PPE is to be worn when handling the following:
(1) Ascetic Acid;
(2) Acetaldehyde;
(3) Dimethyl Sulfide;
(4) Furfuryl Mercaptin;
(5) Methional;
(6) Mustard Oil;
(7) Phosphoric Acid; and
(8) Trimethylamine.
PPE may also be required to be worn when handling other raw materials or substances and this will be indicated by the handling instructions that are on the Safety Data Sheet.”
In short summary, the UWU submits that the term “a period of at least one hour” encompasses an equivalent (aggregated, or cumulative) time period over the course of a shift, whilst the Respondent contends that a period of at least one hour refers to a continuous one hour period.[2]
The parties advanced two agreed questions to be answered by the Commission in resolving this dispute.[3] I accept that the agreed questions posed by the parties are the correct questions to be made and answered in resolving this dispute. The two questions are:
Question 1: Do the words “for a period of at least 1 hour” in clause 22.2(f) of the Agreement mean “for a period of at least one continuous hour”?
Question 2: If the answer to Question 1 is “no”, what is the correct interpretation of clause 22.2(f) of the Agreement?
Factual findings
The Respondent is a flavours manufacturing company that makes flavours for foods and beverages. It is part of a global business that also makes fragrances for consumer and beauty products.
The Respondent operates its business from a factory located at 12 Britton Street, Smithfield, New South Wales (Factory). The Factory operates 24 hours a day, five days a week.
The Respondent currently employs around 145 employees in three business areas: Operations, Commercial and Shared Services. The Operations business area contains a number of departments, including Production and Sampling. There are 27 employees in operator positions in Production, as well as some casual employees in those positions. There are three employees in operator positions in Sampling. There are three shifts, being a day, afternoon, and night shift. The day shift is 8.5 hours long but includes a 30-minute unpaid break. The afternoon and night shift are 8 hours long. Full-time employees work five shifts per week.
Employees in the Production and Sampling departments are responsible for making flavours by compounding raw materials, processing and packing finished flavours, and cleaning production equipment. Employees in Production make flavours at industrial batch sizes larger than 30 kilograms, whereas employees in Sampling make flavours at commercial sample batch sizes smaller than 5 kilograms.
I do not understand there to be any substantive dispute between the parties as to the following factual matters:
a) As part of its Factory operations, chemicals need to be handled and mixed by relevant employees. An employee may be tasked with obtaining the relevant chemicals, then pouring them into an intermediate beaker at their workstation (a ‘small pour’). The mixture contained in the beaker may then be compounded, with a carrier agent and other chemicals, in a large tank at a separate workstation (a ‘large pour’). Once that is completed, the compound solution is moved to another workstation where it is packed into containers for distribution (‘packing out’). Employees will also infrequently undertake supplementary activities, like cleaning.[4]
b) Depending on the chemicals involved, the employee may or may not need to wear personal protective equipment of the kind referred to expressly in cl 22.2(f) of the Agreement; that is, a full-face mask with twin cartridges, gloves and safety clothing (Full PPE). Several chemicals are expressly specified in cl 22.2(f) itself as necessitating the donning of Full PPE, but that list is non-exhaustive. Ultimately, the Respondent prescribes when Full PPE must be worn, with reference to the detailed work instructions it supplies to employees, which are premised on risk assessments it has undertaken on each chemical that may be handled.
c) Whether an employee needs to wear Full PPE on any given shift depends on the duties that need to be undertaken. On some shifts, an employee may not need to wear Full PPE at all. On other shifts, they may wear Full PPE, depending on whether they are required to do so, having regard to the Respondent’s work instructions relevant to the work activities allocated to them for the shift. In particular, if the employee is required to handle particular chemicals during their shift, and the relevant work instructions for those chemicals necessitate Full PPE being worn during the pouring or packing out process involving that chemical, then Full PPE must be worn while that work activity is undertaken.
d) On some shifts, an employee may be required to undertake a number of small pours, either consecutively or sporadically during the shift. If it is consecutive, and if the chemicals involved in some or all of the small pours to be undertaken necessitate Full PPE being worn, they will likely wear the Full PPE, as required, throughout that process. If the small pours are sporadic throughout the shift, but involve chemicals that require Full PPE to be worn, then the employee will take the Full PPE on and off, as required. A small pour will take, on average, four minutes, inclusive of administrative tasks on either side of the pour (administrative tasks do not require Full PPE to be worn).
e) Some shifts may require employees to undertake long pours. These may take several hours, again depending on the chemicals and the compound being created. Again, whether Full PPE needs to be worn for this longer period of time while the long pour is completed depends on the work instructions relevant to the chemicals being used in the long pour.
f) Likewise, some shifts may require packing out duties, and this may also oblige the employee to wear Full PPE, again, depending on the work instructions for the chemicals involved, which are premised on risk assessments that have considered factors such as the nature of the work environment and other implemented risk controls. How long that process takes will necessarily depend on the volume of the compound to be packed, although filling one jerry can take, on average, two to three minutes.
g) It suffices to conclude that employees will, from time-to-time, be required to wear Full PPE during their rostered shift. Depending on the precise duties they are required to undertake, the employee may be required to wear the Full PPE:
i)for the entire shift (although this would seem to be more theoretical than a reflection of reality);
ii)for a consolidated block of time during the shift; or
iii)sporadically during the shift, taking it on and off throughout, depending on the tasks being performed.
h) It is otherwise trite to say that, whether wearing the Full PPE consistently for one consolidated period, or whether it is taken on and off during the course of the shift, the employee may wear the Full PPE, consecutively or cumulatively, for more or less than an hour. How long an employee wears Full PPE will ultimately depend on the precise duties they are called on to perform during any given shift, the chemicals they are called upon to work with, and whether the corresponding work instructions necessitate the donning of Full PPE.[5]
Based upon the evidence filed, and the cross-examination that occurred at the hearing, I make the following additional factual findings:
a) Pours, small or long, wearing Full PPE, may be undertaken continuously during a shift, or broken up into separate pours over the course of a shift. In other words, Full PPE may be taken on and off over the course of a shift depending upon pour workflows.[6]
b) The number of pours undertaken during a shift does not necessarily reflect a specific length of time during which Full PPE is worn. For example, 10 pours may take half an hour, or they may take up the whole shift, depending upon the type/s of chemicals being mixed in each of those ten pours. For example, on some occasions, three consecutive pours may only require Full PPE to be worn for 10 or so straight minutes, whilst on other occasions three continuous pours will require Full PPE to be worn continuously for hours. Depending upon what pours occur, and how they are organised (i.e. together and consecutively, or separately), Full PPE may be worn and taken on and off over the course of a shift, but still aggregate to Full PPE being worn for less than 15 minutes in total during a shift.
c) Prior to February 2024, the SMA was paid to relevant employees on a differing and inconsistent basis. Rather than being paid by the hour, or by reference to time spent wearing Full PPE, the allowance was paid based upon the number of pours undertaken during a shift where Full PPE was worn. In some instances, six pours per shift gave rise to payment of the allowance, and in other cases it was only three pours that gave rise to payment, irrespective of the time taken to complete or finalise such pours and clean up (i.e. wearing Full PPE).[7]
The UWU accepted during closing submissions that its contentions do not match the evidence, i.e. to the extent that a particular number of pours might be said to equate to a consistent time period for which Full PPE is worn.[8]
Interpretation of enterprise agreements
My determination in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd.[9] Such principles were neatly and helpfully summarised by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd[10]:
“In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant.”[11]
Applying the construction principles to this case
Ordinary meaning of the words “for a period of at least 1 hour”
I concur with the UWU’s submissions that the words “for a period of at least 1 hour” in clause 22.2(f) of the Agreement are ambiguous and uncertain.[12] Such ambiguity and uncertainty arise from the plain meaning of these words being able to be interpreted as either one straight continuous hour, or one aggregated (or cumulative) hour, and the absence of such hour being expressed by reference to a shift, a working week, or a roster cycle. That said, I find, and I do not understand it to be contentious, or said otherwise by either party, that the period of one hour is a reference to an hour over the course of a continuous shift (made up of ordinary time, and/or (if applicable) overtime).
Purpose of the SMA
The SMA is not paid on the basis that an employee works with hazardous chemicals. Rather, it is paid for wearing Full PPE, which is necessary and essential to be worn when certain work is performed at the Factory.[13] I accept that the evidence discloses that the wearing of Full PPE is uncomfortable, or at least less comfortable than not wearing Full PPE (for short or long periods of time). I equally accept that the longer Full PPE is worn, the more uncomfortable it becomes (including as to its effects upon body temperature, causing sweating and related discomfort). That said, I do not accept that the words “for a period of at least 1 hour” encompass the mere wearing (or putting on and taking off) of Full PPE during a shift, i.e. there is also a time element to which Full PPE is to be worn for an entitlement to payment of the SMA to arise or crystalise.
History of bargaining about the SMA
In my view, the history of bargaining does not lend itself to supporting a ‘yes’ or ‘no’ answer to Question 1. In short, there is no evidence that bargaining in relation to the SMA ever directly engaged with what the parties (or either of them) intended the words “for a period of at least 1 hour” to mean.[14] The fact that the SMA was being paid on an inconsistent basis prior to February 2024, including by reference to pour numbers wearing Full PPE, as opposed to actual time wearing Full PPE, that was not raised as a concern by the Respondent during bargaining, does not lay a foundation upon which clause 22.2(f) of the Agreement is to be interpreted or applied in abstract from the words “for a period of at least 1 hour”.[15]
Overall context
The Respondent’s submissions contend that the context of clause 22.2(f) is to be considered by reference to (or in comparison with) clause 14.1 (higher duties payments based upon aggregated time worked in a higher grade over a shift or a week) and clause 16 (lunch breaks after no more than 5 continuous hours). In other words, clause 14.1 uses additional words “at least four hours on any one day” to make it cumulative time worked at a higher grade, whilst clause 16 plainly does not extend to or encompass a five hour period broken up or accumulated across a shift, but concerns a straight five hour period to which a lunch break must be provided prior.[16] The UWU’s submissions do not engage with the terms of clauses 14.1 and 16 of the Agreement, and instead assert that the other allowances under clause 22 of the Agreement serve to identify the ambiguity with the words set out in clause 22.2(f).[17] In my view, the overall context in which clause 22.2(f) sits within the Agreement provides no real assistance to the meaning of the words “for a period of at least 1 hour”.
Generous (over literal) construction, and Customs and working conditions of the industry
I concur with the Respondent’s submissions that neither of these issues assist in the interpretation of clause 22.2(f) of the Agreement.
Do the words “for a period of at least 1 hour” in clause 22.2(f) of the Agreement mean “for a period of at least one continuous hour”? (Question 1)
In my view, the answer to Question 1 is ‘yes’, for the following reasons:
a) The mere wearing of Full PPE, on any view, does not give rise to payment of the SMA.[18] There is a time period over which Full PPE is to be worn such that the SMA becomes payable. Prior to August 2023, being prior to an ‘audit’ being conducted by the Respondent,[19] there is no evidence that the Respondent or its relevant employees had any specific regard to ‘time’ in respect of each pour, such that records were made of the time taken to undertake each pour (wearing Full PPE) on a shift, for subsequent aggregation to determine if the SMA was payable. Rather, the evidence discloses that the SMA was paid differently depending upon department and shift, based upon the number of pours undertaken wearing Full PPE (i.e. irrespective of the length of pour times).[20] There is no suggestion in these proceedings that the SMA (on the words of clause 22.2(f) of the Agreement) should apply or be paid other than on a consistent basis across the whole of the Respondent’s workplace.
b) It appears plain from the evidence that any asserted inconvenience, discomfort or disability arising from the wearing of Full PPE occurs from its continued and prolonged use. In other words, for example, putting on and taking off Full PPE ten times a shift for single and separate six-minute blocks does not give rise to the same discomfort as wearing Full PPE for 60 minutes straight.[21]
c) Whilst I accept that the words “for a period of at least 1 hour” are ambiguous, such ambiguity arises, at least in part, from these words not being tethered to, or contextualized within, an overall time period, such as a shift or the weekly roster.[22] As I have found that these words are to be read in the context of a single (or each individual) shift, I consider that it would thereafter be a be a step too far (or beyond the words of clause 22.2(f)) to then construe the one hour period as cumulative or aggregated. In this regard, I concur with the following submissions of the Respondent:
“26. The critical words in issue are the words “at least 1 hour”. There is no apparent dispute as to what the words “at least” mean. Rather, the focus is on the words, “1 hour”.
27. It suffices to say that the ordinary meaning of the words “1 hour” is a consecutive period of 60 minutes. The starting assumption, when any reference to an hour (or any measure of time in hours and minutes) is expressed, be it in legislation, an industrial instrument, or otherwise, is that it is a reference to a continuous period of one hour, unless it is surrounded by relevant contextual words that suggest the reference is to be understood to be cumulative in nature.
28. This is best illustrated by way of examples. If an industrial agreement states, “An employee is to take a break of one hour”, the reference to “one hour”, without more, must be a reference to a continuous hour. However, that presumptive position can be displaced by other contextual words. For example, if the industrial agreement instead stated, “An employee is to take a break of one hour, taken incrementally over the course of a shift”, then it is clear that the reference to “one hour” means one hour in total, which can be broken up over a larger time period.
29. Similar hypotheticals come readily to mind. If an employee is given a task and told they have an hour to complete it, then without more, the ordinary meaning and understanding of such an expression would be that the employee would have one continuous hour to complete the task. If the employee is given a task and told that, over the course of their shift, they have an hour to complete it, it is the additional context that demonstrates the task can be performed over a cumulative hour taken during the course of the day.
30. While the analogy is imperfect, it is also consistent with reckoning of time in legislation. An employee has 21 days to file a general protections application involving dismissal. That is not 21 days within some wider period of time. It is a consecutive period that starts to run from a particular time. The period does not stop for any reason. If it was to be 21 days within some wider time period, then s 366 of the FW Act would say that. For example, it could say “within 21 business days after the dismissal took effect” or “within 21 days after the dismissal took effect, excluding public holidays”. Again, in the absence of such additional language, the ordinary meaning given to any reference to time is that it is a reference to a consolidated and continuous period.
31. The Applicant contends (AS[27]) that the Respondent’s interpretation requires one to read the word “continuous” into the Agreement. Such a contention does not advance the matter, because the same is true of the Applicant’s construction, which necessitates one reading the word “cumulatively” into the clause. It otherwise ignores the fact that the ordinary meaning is a continuous period, not a cumulative one.
32. In the Respondent’s submission, the ordinary meaning of the words, read as a whole and in the context of cl 22.2(f), supports the view that the reference to “1 hour” means a continuous period of 60 minutes in which an employee is wearing Full PPE.”
…
“53. The application of the principles on interpretation of agreements to cl 22.2(f) of the Agreement leads inexorably to the conclusion that the construction advanced by the Respondent is the correct one. By reading the reference to “at least 1 hour” as a reference to one hour of work performed constantly, the words used in the clause are given their natural and ordinary meaning, the clause takes on a meaning that reflects the purpose of the Allowance (namely, to compensate employees for the discomfort and inconvenience of wearing Full PPE for long periods) and the clause is otherwise given an interpretation that is consistent with the overall context of the Agreement.
54. By contrast, the Applicant’s interpretation does not reflect the ordinary meaning of the words used, does not reflect the Allowance’s purpose, and is not consistent with the overall context of the Agreement. Accordingly, the Applicant’s asserted construction must be rejected.”[23]
d) The evidence discloses that despite the Respondent applying clause 22.2(f) on the basis of one continuous hour, employees continue to be entitled to the SMA.[24] In other words, applying clause 22.2(f) on the basis of one continuous hour does not make the SMA void, or of no application to the work performed by relevant employees at the Respondent’s workplace, with any reduction in the amount of times the SMA is paid arising not from the words of clause 22.2(f), but its wrong interpretation or application prior to February 2024.
Disposition
Having resolved Question 1 in the affirmative, it is unnecessary that I answer Question 2. The file in this matter will now be closed.
DEPUTY PRESIDENT
Ms Annette Van Gent, Industrial Officer, appeared for the United Workers’ Union (Applicant).
Mr Martin Watts, of Counsel, instructed by Ms Felicity Edwards, Partner, Sparke Helmore Lawyers, appeared for Givaudan Australia Pty Ltd (Respondent).
[1] Permission was granted for Respondent to be legally represented generally in these proceedings (pursuant to s.596(2)(a) of the Fair Work Act 2009) at the preliminary conference conducted between the parties on 30 April 2024.
[2] See Exhibit UWU 1 for a summary of the events leading up to the dispute application being filed by the UWU in these proceedings.
[3] Email from Ms Felicity Edwards, Partner, Sparke Helmore Lawyers, 22 May 2024 (4:45pm), copying in UWU representatives.
[4] Where I refer to the term “pour” or “pours” in this decision, I use it interchangeably with other tasks that require Full PPE to be worn, including packing out and spraying. Transcript, PN313.
[5] Summarised from the Respondent’s Submissions, 5 July 2024, at [7]-[14]. See also, Transcript, PN108-PN112. To be clear, I make findings for the purposes of these proceedings as set out in paragraph [11] of this decision.
[6] Transcript, PN124-PN126, and PN316-PN319. Exhibit ‘UWU 5’, at [12].
[7] Transcript, PN75-PN81, and PN85-PN86, PN137-PN146, PN172-PN173, and PN287. Mr Volker Blume Witness Statement, 5 July 2024, at [26]-[45]. Exhibits ‘UWU 3’, at [15.2], and ‘UWU 4’, at [4].
[8] Transcript, PN322, and PN369-PN370. Compare UWU Submissions, 14 June 2024, at [18.3] and [21.1].
[9] [2017] FWCFB 3005, at [114]. See also James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR
566, at [65].
[10] [2020] FWC 2130.
[11] Ibid, at [8].
[12] UWU Reply Submissions, 19 July 2024, at [3] (reiterating [13]-[15] of the UWU’s Submissions dated 14 June 2024)..
[13] UWU Submissions, 14 June 2024, at [22]. Compare, Transcript, PN302.
[14] Exhibit ‘UWU 2’, at [6]-[11]. Transcript, PN338-PN342.
[15] Respondent’s Submissions, 5 July 2024, at [22] (per the cited evidence references therein), and [45]-[48].
[16] Transcript, PN335-PN336.
[17] UWU Reply Submissions, 19 July 2024, at [10], Note UWU’s Submissions, 14 June 2024, at [22]-[25], which is said to deal with context, but instead deals with the matter of ‘status quo’ under the Agreement’s disputes procedure.
[18] Compare, Transcript, PN302.
[19] Mr Volker Blume Witness Statement, 5 July 2024, at [38]-[42], “work process observations” for pours and packing out.
[20] Mr Volker Blume Witness Statement, 5 July 2024, at [43]-[45]. Exhibit ‘UWU 3’, at [16].
[21] Transcript, PN316.
[22] Transcript, PN365.
[23] Respondent’s Submissions, 5 July 2024, at [26-[32], and [53]-[54]. Transcript, PN323-PN327, and PN350.
[24] Mr Volker Blume Witness Statement, 5 July 2024, at [42]; Transcript, PN300.
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