United Workers' Union v Mentholatum Australasia Pty Ltd T/A Mentholatum
[2020] FWC 6321
•11 DECEMBER 2020
| [2020] FWC 6321 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Workers' Union
v
Mentholatum Australasia Pty Ltd T/A Mentholatum
(C2020/4692)
COMMISSIONER LEE | MELBOURNE, 11 DECEMBER 2020 |
Alleged dispute about matter arising under the enterprise agreement – whether the terms of the Agreement require the Respondent to pay the respirator allowance in clause 21.1 of the Agreement to employees when working in the compounding area – if the payment is required, for what proportion of the time spent working in the compounding area should the employees be paid.
Introduction and background
[1] On 16 June 2020, the United Workers’ Union (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute to the Fair Work Commission (the Commission). The Respondent to the application is Mentholatum Pty Ltd T/A Mentholatum (the Respondent). The dispute is about whether the relevant enterprise agreement mandates the payment of the “Respirator Allowance” in clause 21.1 to all employees required to work in the compounding area, and if it is to be paid, for what proportion of the time that employees work in the area should it be paid.
[1] The relevant Agreement is the Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018 (the 2018 Agreement). The dispute resolution procedure relied upon is located at clause 12 of the 2018 Agreement. According to the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, the dispute relates to clause 21.1 of the 2018 Agreement.
[2] United Workers’ Union Organiser, Mr Tarek Soueid, notified the Respondent of a dispute about the application of the clause in February 2020, though there had been some discussions internally prior to that date. 1
[3] Discussions ensued and there was also a conciliation before me on 7 July 2020, however the dispute did not resolve, and the Applicant sought to have the matter arbitrated. There was a mention hearing before me on 31 July 2020, after which I then issued directions which outlined the subject of arbitration, as well as programming of the matter.
What the dispute is about
[4] The Respondent is engaged in the business of the manufacturing and supply of therapeutic, topical cream and skincare products under the Mentholatum and related brands. It conducts its operations from various sites including its head office and its production and warehousing facilities located in Scoresby. 2
[5] There are two Compounding Rooms within the Compounding Area in the production area at the Respondent’s Scoresby premises. Namely, the Chocolate Compounding Room and the Liquid Compounding Room. It is only in the Compounding Area that the controversy about the wearing of respirators and whether the allowance is payable to workers lies, and if it is, the proportion of time that it should be paid for.
[6] It has been agreed that the questions to be answered to resolve the dispute are as follow:
A. Are employees entitled to be paid the allowance provided for in clause 21.1 of the Agreement when working in the compounding area? Yes or No. If the answer to question A is No, the dispute is resolved.
B. If the answer to the question in A is “Yes”; then for what proportion of time that employees spend working in the compounding area is the allowance payable?
[7] The parties agree that once these questions/s have been answered, the dispute is resolved and they agree to be bound by the determination of the Commission consistent with clause 12.1.6 of the Agreement.
The history of the dispute
[8] The Applicant states that:
“This dispute relates to the correct interpretation of cl 21.1 of the Mentholatum Australasia Pty Ltd & National Union of Workers Enterprise Agreement 2018 (the “2018 Agreement”), which relevantly reads:
Persons required to work in any area which by agreement between the employer and the union necessitates the wearing of a respirator (as in Oil Companies Award) shall be paid the following allowance per hour or part there of extra.” 3
[9] The Amounts outlined under clause 21.1 of the 2018 Agreement are as follow:
• From 1 July 2017: $0.74
• From 1 July 2018: $0.76
• From 1 July 2019: $0.77
• From 1 July 2020: $0.80
[10] The Applicant submits that:
“Cl 21.1 has, in substance, been part of enterprise agreements negotiated between Mentholatum Australasia Pty Ltd (“Mentholatum”) and the National Union of Workers, the antecedent of the United Workers Union (the “UWU”), since 1998.
The wording of the ‘respirator allowance’ clause has remained largely unchanged across the successor agreements to the 1998 Enterprise Agreement, save for increases to the quantum of the allowance in line with increases to the award provision from which it was derived.
The respirator clause, as expressed in the enterprise agreements between Mentholatum and the UWU since 1998, is an exact replication of cl 20.5 of the Manufacturing Chemists Award 1998 [AP788127CRV], which has since been consolidated, as part of the award modernisation process, into the Pharmaceutical Industry Award [MA000069].” 4
[11] The Respondent does not dispute this history but points out that:
“Clause 21.5 of the 1998 Agreement was in identical terms to clause 20.5 of the pre-modern Manufacturing Chemists Award 1998, except, again, for the allowance sum.
The wording of clause 20.5 in the Manufacturing Chemists Award 1998 was varied in clause 19.3 of the Pharmaceutical Industry Award 2010. Clause 19.3 of that Award states:
‘An employee whilst required to work in any area which necessitates the wearing of a respirator must be paid 3.6% of the standard rate per hour or part thereof extra.’ ” 5
Jurisdiction to arbitrate the dispute
[12] This is an application made pursuant to s.739 of the Act. Relevantly, ss.738 and 739 of the Act provide as follows:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[13] The dispute settlement procedure appears under clause 12 of the 2018 Agreement and is in the following terms:
“12. DISPUTE PREVENTION AND SETTLEMENT
12.1. Any dispute or claim (whether or not it arises out of this agreement or in relation to the National Employments Standards (NES)) as to the wages or conditions of employment of any employees covered by this agreement shall be settled in the following manner:
12.1.1. The matter shall first be discussed between the aggrieved employee and his/her supervisor.
12.1.2. If settlement is not reached the matter shall be discussed between the delegate and the site manager or other appropriate officer of Mentholatum.
12.1.3. If not settled the matter shall then be discussed between the union organiser and the appropriate representative of Mentholatum.
12.1.4. If agreement is not reached, the matter shall then be discussed between a representative of the head of the office of Mentholatum and the appropriate national official of the union. The provisions of this subclause need not apply unless either the employer or the union requests otherwise.
12.1.5. If the matter is still not settled either party may refer the dispute to the Fair Work Commission for resolution by conciliation in the first instance. If the dispute cannot be resolved through conciliation either party may request the Fair Work Commission to arbitrate the matter.
12.1.6. Mentholatum, the employee and the union agree to abide by any decisions or orders made by the Fair Work Commission subject to exercising any rights of appeal to a Full Bench.
12.2. Until the matter is determined, the status quo will prevail.
12.3. A nominated employee representative may be involved in any of the above steps.”
[14] It is apparent that the required steps of the dispute settlement procedure have been complied with. The dispute relates to a matter arising under the 2018 Agreement. However the dispute resolution term in the 2018 Agreement is broadly cast and allows for settlement of any dispute or claim whether or not it arises out of the Agreement or in relation to the National Employment Standards. Neither party has contended that there is any jurisdictional barrier to the Commission arbitrating the matter. I am satisfied that the requisite jurisdiction exists for the Commission to arbitrate the dispute and, consistent with the terms of the dispute settlement procedure provision, make a determination that is binding on the parties.
The Submissions and Evidence
[15] The parties filed written submissions and evidence and have agreed that the matter be determined on the papers.
Applicant submissions and evidence
[16] In their first submissions, the Applicant made a written submission but did not include any evidence.
[17] In summary, that submission was:
“Applying the principles of interpretation of enterprise agreements as expounded in AMWU v Berri Pty Ltd[2017] FWCFB 3005, the UWU contends that the plain and ordinary meaning of cl 21.1 supports a reading that where workers are rostered to perform work in areas which necessitate the use of a respirator, they will be compensated by payment of the allowance, in line with the quantum stipulated in the clause.” 6
[18] The Applicant acknowledges that “the question of which areas necessitate the wearing of a respirator, needs to be determined by reference to an ‘agreement between the employer and the union.’” 7
[19] The Applicant makes the point that the clause as initially drafted in 1998 predates the introduction of specific Occupational Health and Safety (OH&S) regulations, mandating the use of Personal Protective Equipment (PPE) when handling hazardous chemicals. Namely, that such health and safety control measures were not mandated until the Occupational Health and Safety (Hazardous Substances) Regulations 1999 came into force on 1June 2000, and therefore:
“The UWU contends that it is therefore a reasonable inference to make that in initially drafting the respirator allowance clause, provision was made for areas in which respirator use was necessary, to be determined by agreement between the union and employer, as the parties did not have the benefit of external legislative authority to rely upon in ascertaining the areas in which respirators ought necessarily be worn, as a determination of fact.
…
The effect of the OH&S (Hazardous Substances) Regulations 1999 and its successors, including the Occupational Health and Safety Regulations 2017, cast an obligation on employers to control for risks of exposure to hazardous chemicals to the health and safety of workers by adopting a hierarchy of controls model, including the use of PPE, such as a personal respirator, on site.” 8
[20] The Applicant therefore argues that the relevant legislative context, as outlined in their submissions, would have constituted part of the common understanding of parties in drafting the 2018 Agreement, 9 and:
“Any agreement between parties as to which areas of the workplace necessitate the wearing of a respirator, therefore, ought necessarily be determined by reference to the SDSs of the chemicals used in specific areas.” 10
(Note: A manufacturer or an importing supplier of a hazardous substance must prepare a safety data sheet (SDS) before the substance is first supplied to a workplace) 11
[21] Ultimately, this reasoning leads to the following submission by the Applicant:
“It is therefore the UWU’s contention that an agreement between the employer and the union as to which areas of the workplace necessitate the wearing of a respirator is neither required, nor an operative part of cl 21.1, as the question … is required by law to be answered in reference to objective criteria, including by, but not limited to, having regard to the SDSs of chemicals used in specific areas.” 12
[22] I note that this submission appears inconsistent with the earlier concession that the question needs to be determined by reference to “agreement between the union and employer”.
[23] The Applicant states that the “term ‘agreement’ is defined by the Cambridge Dictionary as describing a ‘situation in which people have the same opinion, or in which they approve of or accept something.’” 13
[24] Having regard to City of Wanneroo v Holmes [1989] FCA 553, Kucks v CSR Limited (1996) 66 IR 182 and Kirby J’s ratio in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222, the Applicant submits that:
“An agreement between the employer and the union as to which areas necessitate the wearing of a respirator, on the proper construction of cl 21.1, is neither required to exist as a formal agreement, nor indeed at all, beyond a common understanding of the relevant legislative context.” 14
[25] In the alternative, the Applicant submits that:
“If the Commissioner is inclined to find that an agreement between parties as to which areas necessitate the wearing of a respirator is indeed required, the UWU submits that an implied agreement exists between the union and the employer as to the necessity of wearing respirators in the Compounding Area.
Such an implied agreement arises from the common understanding of parties as to the legislative context of relevant health and safety legislation.” 15
[26] Relevant to this is said to be the fixing of signage mandating respirators outside the Compounding Rooms. I note that it is common ground that signage was in place for a time but was removed in or around April 2019. The Applicant submits that this occurred following the initial raising of a dispute regarding the payment of allowances by Mr Colin Penwarden and Mr Maciej Sobczyszyn.
[27] However, it is submitted by the Applicant that because there was a sign in place when the dispute was raised, then:
“Mr Penwarden and Mr Sobczyszyn’s raising of a dispute with Mentholum over the non-payment of the respirator allowance under cl 21.1 of the 2018 Agreement, evinces the existence of an agreement between the employer and the union as to the necessity of respirator use in the Compounding Area.” 16
[28] The Applicant also submits that the ‘dealings’ between the Applicant and the Respondent as reflected in exchanges between Mr Soueid and Mr Murphy of the Respondent between November 2019 and early 2020:
“viewed as a whole and objectively from the point of view of reasonable persons on both sides, therefore show the existence of an agreement that the Compounding Area is an area under cl 21.1, in which the use of respirators is necessitated.” 17
[29] The further alternative argument of the Applicant is that the “circumstances disclose an implied contract.” 18 The submission rests on the contention that:
“the SDSs for a majority of the hazardous chemicals to which employees would be exposed in the Compounding Area, require the wearing of PPE, particularly where adequate engineering controls are not appropriately employed in the area. 19
…
It is therefore submitted that, having regard to the surrounding circumstances known to the parties, namely the legislative context and the health and safety obligations cast upon the employer, as well as the requirement in law, that the necessity for PPE to be worn be determined by objective standards, an implied agreement exists between the employer and the union as to the necessity of respirators to be worn in the Compounding Area.” 20
[30] In respect to the question as to the proportion of time that employees spend working in the compounding area that the allowance is payable, the Applicant submits that:
“in accordance with the interpretation of the term ‘part thereof’ by the Commission in National Union of Workers v Veyance Belting Pty Ltd[2015] FWC 5557, the respirator allowance in cl 21.1 of the 2018 Agreement should be paid, per hour, on all hours that an employee is rostered to perform work in the Compounding Area, regardless of whether the employee performs other duties outside the Compounding Area, for part of an hour.” 21
[31] This is said by the Applicant to be consistent with the ordinary and plain meaning of the words:
“The respirator allowance in cl 21.1 is therefore payable on all hours that an employee is rostered to perform work in the Compounding Area. This accords with the industrial realities of performing work in the Compounding Area and the necessity of wearing a respirator at all times, as chemical vapours and particles continue to remain in the atmosphere of the Compounding Area, long after the mixing or dispensing process. Hazardous chemical particles are also disturbed and introduced again to the atmosphere, creating a risk of exposure to the chemicals by inhaling, when cleaning duties are undertaken.” 22
Respondent submissions and evidence
[32] The Respondent submits that:
“It is an ordinary and common meaning of the word “agreement” that a meeting of minds occur between the parties regarding both the area and that a respirator would be needed for the performance of work in it.
It is not a requirement that any such agreement be a ‘formal’ agreement in the sense of a common law contract, nor could such a form of agreement reasonably be inferred. That much follows from the formal obligations needed for the existence of a common law contract, including that consideration move from one party to the other in exchange for the agreement. Consideration will not exist if a party is doing no more than performing duties that were already required
What is not unclear, however, is the requirement that the parties agree that work in a given area necessitates the wearing of a respirator. The Respondent submits that it is a clear an unambiguous requirement on the common meaning of the phrase “by ... agreement between the union and the employer” that an agreement in fact occurs.” 23
[33] Further, the Respondent submits that:
“The UWU Submissions refer to no actual agreement, whether written or verbal, between the Applicant and the Respondent as to the requirement in clause 21.1 that the area in which work is performed necessitates the wearing a respirator.
The UWU Submissions do not, further:
(a) refer to any discussions between representatives of the Applicant and the Respondent regarding the work area, or the requirement that respirators be worn; or
(b) contain or attach any evidence regarding any such agreement or discussions.
As a result, and having regard also to the further matters below, there is no basis to conclude that an essential condition for the payment of an allowance has been fulfilled, and that an allowance must be paid.
…
It is submitted that the Applicant’s Contentions are contrary to the conclusions that would follow from a correct application of the relevant legal principles.” 24
[34] That submission is made based on:
• To the extent that the Applicant’s construction relies on extrinsic material, that it is not necessary if a term is capable of plain meaning on its ordinary terms. 25
• Further, if a term “has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.” 26
• The Respondent submits that precisely those circumstances apply here. Clause 21.1 has a plain meaning that, on its terms, the Applicant must agree with the Respondent as to whether work in a given area necessitates the wearing of a respirator, as a requirement of the allowance being paid. 27
• In the event, no assertion is made in the Applicant’s Submissions that an actual agreement to that effect was entered into by the parties, nor has any evidence been provided of any discussions or actual meeting of minds between the parties that an agreement occurred. As an ordinary meaning exists, it is not permitted for the Applicant to refer to alleged “objective standards” contained in any unparticularized “legislative context” to assert either:
(a) that the clause does not, in fact, and despite its terms, require any agreement between the parties “at all” or as “an operative part” of clause 21.1, as the Displacement Contention submits; or
(b) that an agreement may exist merely by parties having “the same opinion” of a matter, without more, as the Agreement by Common Understanding Contention asserts. 28
• To assert those matters is to contradict the plain meaning and language of clause 21.1. That is particularly in the case of the Displacement Contention, which states that no agreement at all will be required between parties by virtue, amongst other matters, of external legislative standards. 29
• That the “Agreement by common understanding” contention of the Applicant cannot hold as it rests on a construction of the term that would impermissibly dilute the effectiveness of the agreement that clause 21 requires on its plain meaning. 30
• Applicant’s agreement by conduct contention
[35] On this point, the Respondent submits that the fact that a respirator sign was, at a point in time, mounted outside the Compounding Rooms does not enshrine “of itself” an agreement between the Respondent and the Applicant. 31
[36] The unchallenged evidence of Ms Fanizah Downs is that the sign was taken down because of the confusion caused by the signs as to the circumstances in which respirators were required. The Respondent submits that the taking down of the signs demonstrates that the parties had not reached agreement as to when respirators would be required. 32
The Applicant’s implied agreement contentions
[37] The Respondent submits that this contention faces insurmountable difficulties because:
• There was no evidence as to what the implied agreement is that arises from the “common understanding” of the parties arising from the legislative content in the relevant OH&S legislation. 33
• Having regard to the decision in BP Refinery Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20, it is not necessary to give business efficacy to the 2018 Agreement that the parties must have agreed as to which working areas of the Respondent’s premises necessitated the wearing of respirators. 34
• There is significant difficulty in implying terms based on protections in legislative instruments for the reasons set out in decisions such as Byrne & Frew v Australian Airlines (1995) 180 CLR 410. 35
The Applicant’s Implied or Imputed Contract Contention
[38] The Respondent submits this contention appears to be alleged on basis that an agreement that respirators must be worn is implied as a matter of law. The Respondent disputes this on the basis that:
• It is a matter of allegation, not evidence, that the Applicant asserts that such matters as the Respondent’s engineering controls are inadequate for a stated purpose. 36
• The reasons asserted by the Applicant that are said to give rise to an implied contract do not appear to be recognised by the courts as a basis for implying an agreement at law. 37
• For the reasons set out above, the Respondent denies that there was an implied agreement whether as a matter of fact or law, that respirators were to be worn on any given part of the Respondent’s premises. 38
[39] If there is an entitlement to the allowance, the Respondent made the following submissions as to the proportion of time for which the allowance should be paid:
“The Respondent submits that the ordinary meaning of the clause is that an employee is only entitled to be paid the allowance for each hour, or part thereof, that they are required to perform duties that necessitate the wearing of a respirator, rather than for the period of time that they may notionally be required to be present in an area where a respirator may or may not be required, depending on the nature of the material being handled.
That is to say, the period for which allowance is properly to be paid depends not upon whether a person is merely present in a given area (which is of itself a neutral consideration about hazardous chemicals are being handled), but rather whether they are performing duties in that in fact “necessitates” a respirator to be worn. The allowance depends on the actual necessity that they wear a respirator, rather than the area they may notionally be required to perform their duties.
It is submitted that this construction is consistent with the purpose of the clause, which is to ensure that an employee is compensated for any inconvenience or discomfort associated with the requirement to wearing of a respirator, as opposed to simply being present in a place where a respirator might be required to be worn.
It is further submitted that this construction is consistent with the practices in operation in the Respondent.
The Witness Statement of Terry Wasley states that employees are not ‘rostered’ on a weekly or daily basis to be present in any the Compounding Rooms, either at all or for any given period of time. Production targets are determined in advance for which products must be mixed that week or day. The particular product concerned, in turn, affects the nature of the material that must be mixed or otherwise handled in making the product. It is not suggested in the UWU Submissions that all materials used in the Compounding Rooms or handled by an employee on any given shift contain substances which require a respirator to be worn.
The Statement of Terry Wasley, further, states that, on any given day or shift, a production employee may be required to perform duties both within and outside a Compounding Area. It would be anomalous if an employee was entitled to be paid a respirator allowance not only for the period of time that they were present in a Compounding Room (but were not being exposed to hazardous materials), but also for any period of time that they outside the Compounding Areas and also not performing duties that exposed them to the need to wear a respirator.” 39
[40] The Respondent also submits that the decision in National Union of Workers v Veyance Belting Pty Ltd [2015] FWC 5557 does not assist the Applicant as the purpose of a redundancy payment, which was the subject of the dispute in that decision, is different to the payment of an allowance as is the case here. 40
Reply Submissions
[41] The Applicant sought and was granted an opportunity to file reply submissions. Those submissions included evidence that the Applicant should have, in the ordinary course, provided with their opening submissions. However, the evidence was accepted by me on the basis that the Respondent would be given a further right of reply.
[42] That evidence was that:
“The UWU advances witness statements from Mr Tarek Soueid, UWU Official responsible for organising and representing union members at Mentholatum, Mr Colin Penwarden, Compounder at Mentholatum and Mr Maciej Sobczyszyn, UWU Workplace Delegate and Mentholatum employee, in support of our contention that there exists a common understanding and agreement between the UWU and the Respondent that a respirator is required to be worn in the Compounding Area, for the purpose of clause 21.1 of the Mentholatum Australasia Pty Ltd & National Union of Workers Enterprise Agreement 2018 and its antecedents.
The witness statements and associated Attachments of email correspondence between the UWU and the Respondent are offered as evidence in support of the UWU’s “common understanding” contention, characterised thusly by the Respondent in paragraphs 23 of their submission, and in response to the Respondent’s assertions in paragraphs 26(b) and (c) that no evidence has been provided by the UWU in support of our aforementioned contention.
Finally, in response to the Respondent’s assertion in paragraph 26(a) of their submissions, the UWU refers the Respondent to reg 163(4) of the Occupational Health and Safety Regulations 2017 (VIC), which casts an obligation on employers, where employees are engaged in the use or dispensation of hazardous chemicals, to undertake a hierarchy of controls approach to mitigating against the risk of harm arising from exposure to hazardous chemicals, including by, where necessary, providing access to appropriate PPE.” 41
[43] The Respondent’s further reply to the evidence filed by the Applicant includes a summary of the Applicant’s additional evidence as follows:
“The Applicant acknowledges that there has been no formal, written agreement between the UWU and Mentholatum that Respirators must be worn in the Compounding Area of the Respondent.
Mr Sobczyszyn acknowledges further that the Respirator Allowance was not discussed or raised during negotiations of the 2018 Agreement (and its predecessor 2015 Agreement).
The Statement of Tarek Soueid indicates that the Applicant has not been able to locate the “Oil Companies Award” referred to in clause 21.1 of the 2018 Agreement. The Statement of Craig Murphy indicates that he remains concerned whether the parties can be said to have reached agreement regarding a matter, according to an apparent standard set out in the Award without having identified or sighted the reference document. References in that Award may be no more than illustrative: however, Mr Murphy (and it appears, the parties) do not appear to know.
Assertions are otherwise made in various places in the Applicant’s Statements that the writers consider that an agreement existed for the purposes of clause 21.1. This appears to be for the reasons including:
(1) the Respondent did not deny that a respirator was required to be worn in the one of the two Compounding Rooms, generally and/or during or as a result of discussions and meetings between Messrs Soueid, Sobczyszyn, and Penwarden, on the one hand, and Company representatives on the other, in which payment of an allowance was discussed;
(2) in analogous terms to (e)(1) above, the ‘only dispute’ between the parties was the extent of a payment and/or period for which respirators were required to be used, and correspondingly, the amount of the allowance to be paid;
(3) signage was located outside the Compounding Rooms and/or was removed;
(4) the Respondent made offers to the Applicant for payment of an allowance based on calculations by the Respondent of the percentage of time respirators were worn during 2019; and
(5) assertions are also variously made in the Applicant’s Statements that there was ‘always’ an implicit agreement, on the basis of matters such as that a respirator was ‘clearly’ required to be worn to protect against exposure to the risk presented by hazardous chemicals. Comments in the Applicant’s Statements regarding adverse physical effects said to be experienced by Mr Penwarden appear to be directed towards (or primarily relevant) in this respect.” 42
[44] The Applicant makes a number of submissions in response which to a certain extent traverse the same territory as in the opening submissions. 43 Having regard to those submissions:
“Viewed as a whole, the Respondent submits that there was no actual or implicit agreement between the parties that there was an agreement that respirators were required in any given area of the Respondent’s premises for the purposes of clause 21.1” 44
[45] The Respondent then makes an alternative submission in the following terms:
“Alternatively, and if, despite the above, an agreement is found to have occurred (in the wider sense between the Company and the UWU that respirators were required to be worn in the Compounding Area (for some time and subject to the requirements of any SDSs)), the Respondent submits:
(1) it could not be found to exist or to have been implied ‘always’, as certain comments in the Applicant’s Statements claim it to have been;
(2) it could only arise at the point that there was sufficiently unequivocal conduct occurring in the course of an actual exchange or communications between the parties on the requirement to wear a respiration in the relevant area.”
[46] The Respondent further submits:
• In relation to the above, it is not enough that there was a mere ‘common understanding’ regarding whether or not respirators were required in an area. A meeting of minds or sufficiently clear communication or other form of exchange was required. An ‘understanding’ could otherwise be said to arise in each party separately to each other, but one or both of them being aware that it had been reached.
• These views are, further, supported by the fact that, unlike other allowances in the 2018 Agreement, clause 21.1 is unique in expressly requiring an “agreement” to occur. Clause 21.2, for example, states that persons employed “in sterile areas other than those employed in the production of antibiotics under clause 18.2” shall be paid the allowance in that clause. Clause 21.3 states that persons employed in “areas other than sterile areas requiring the continued wearing of a dust mask” shall be paid the allowance sent out in that clause. Neither refers to an agreement as to the designated areas of work.
• On its terms, the drafters of the 2018 Agreement can be presumed to have required that something more than perfunctory or an implied agreement would suffice for the purposes of the allowance in clause 21.1
[47] Having regard to those matters, the Respondent submits that, if an agreement did occur of the kind referred to in paragraph [45] above, it could not have arisen before the email of Craig Murphy addressed to Mr Soueid dated 3 April 2020, enclosed with his Statement as attachment “CM-3”, in which Mr Murphy advised Mr Soueid about the outcome of the Company’s review of respirator use within the Compounding Area, and proposed an offer of payment based on that review. Despite the further terms of the email marked as “CM-3”, any payment of an allowance should not be required before the relevant agreement is found to have occurred. 45
The law to be applied
[48] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 46 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.47
[49] I refer to the relevant principles as summarised in Berri and outlined below:
“The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction 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 disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. 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.
3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) 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;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 48
[50] Both the Applicant and Respondent rely on the interpretive principles summarised in Berri. 49 I will apply those principles as relevant in determining the matter.
Consideration
The answer to the first question
A. Are employees entitled to be paid the allowance provided for in clause 21.1 of the Agreement when working in the compounding area? Yes or No. If the answer to question A is No, the dispute is resolved.
[51] The Applicant makes the reasonable concession that:
“the question of which areas necessitate the wearing of a respirator, needs to be determined by reference to an ‘agreement between the employer and the union.’” 50
[52] It is apparent from the ordinary meaning of the words that such an agreement must exist as a matter of fact in order for the allowance to be paid at all. The Applicant’s submission that a proper construction of the terms of the clause is that an agreement is not required at all (as noted in paragraph [21] of this decision) cannot be accepted for the reasons set out by the Respondent.
[53] Context is a relevant consideration, and this might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates. 51
[54] In this regard, it is noteworthy that there are other allowances provided for in the 2018 Agreement, including an allowance for working in sterile areas and another for continuous wearing of a dust mask. 52 Neither of these provisions, in contrast to the clause in dispute, make any reference to the need for an agreement between the employer and the union. This is a strong indication that the framers of the document had in mind that this particular allowance for use of respirators would only be operative where agreement was reached as to particular areas.
[55] The reference to the “Oil Companies Award” in clause 21.1 was not able to be explained by either party and there was only speculation as to what actual award was being referred to. Ultimately the reference to the Oil Companies Award does not assist in the construction of the term.
[56] The Applicant reaches for legislative context by arguing that because the relevant OH&S legislation to which they refer did not did not exist when the first iteration of the allowance came into existence in 1998, it cannot therefore be reasonably inferred that provision was made for agreement as the parties did not have the benefit of “external legislative authority to rely on,” 53 and that this context “would have constituted part of the common understanding of parties in the drafting the 2018 Agreement.”54
[57] This contention cannot be accepted for a number of reasons.
[58] First, the 2018 Agreement was negotiated and ultimately made in 30 August 2018. The legislation referred to was in existence at that time. The Applicant’s submission is tantamount to saying that a common understanding if it existed in 1998, continued until the making of this agreement. That, with respect, is an unlikely proposition and certainly devoid of evidence. Put another way, it amounts to suggesting that the framers of the 2018 Agreement had a common understanding of the legislative context as it existed in 1998.
[59] Secondly, the 2018 Agreement has a plain meaning, at least insofar as there is clearly a requirement for an agreement. Therefore, evidence (to the extent that there is any) of the surrounding circumstances cannot be admitted to contradict the plain language of the agreement.
[60] Thirdly, with the exceptions of more recent events in April this year, to which I return later in the decision, there is no evidence of any actual discussion or meetings of minds between the parties.
[61] I agree with the Respondent that the agreement by common understanding submission if accepted “would impermissibly dilute the effectiveness of the agreement that clause 21.1 requires on its terms. The Agreement by Common Understanding Contention should not accordingly be accepted as a construction of clause 21.1.” 55
Implied Agreement Contention
[62] I do not accept that an implied agreement exists as asserted by the Applicant. Firstly, as set out earlier, this relies on the Applicant’s argument that there was a common understanding of the parties of the legislative context of the relevant OH&S legislation. As set out earlier, this common understanding proposition is without evidence and refers to a legislative context that did not exist when this agreement was made.
[63] Further I agree with the reasons set out in the Respondent’s submissions:
“There is, in summary, no legal requirement to imply the existence of a separate term or agreement between the parties to the 2018 Agreement that respirators must be worn in any given area of the Respondent’s premises merely by virtue of the legislative context arising under the relevant OHS Legislation, or any specific obligations arising thereunder.” 56
Implied or Imputed Contention
[64] I agree with the submissions of the Respondent on this point to the effect that I am not satisfied on the evidence that the matters relied on by the Applicant exist as a matter of fact.
[65] Secondly, as pointed out by the Respondent, the reasons relied on do not appear to be recognised by the courts as a basis for implying an agreement at law, having regard to the reasoning in Commonwealth Bank of Australia v Barker [2014] HCA 32 [29]. 57
Agreement by context contention
[66] Having regard to what I consider the correct construction of the clause in question, that is that there must be an agreement of some type as a matter of fact, I do not accept that the mere fact that signs existed (for a period of time) outside the compounding rooms which compelled the wearing of face masks is evidence of an agreement between the Respondent and the Applicant. Indeed, the evidence of Ms Downs, which I accept, is that the signs were taken down because of the confusion they created as to when respirators were required. This demonstrates, if anything, that the employer and the union had not reached agreement on when respirators were required.
[67] However, the more recent conduct of the employer and the union does evidence an agreement of the type of contemplated by the meaning of the clause. That agreement is reflected in the email marked as “CM-3” from Mr Murphy to Mr Soueid dated 3 April 2020. 58 That email sets out the outcome of a review that the company undertook of respirator use and how the review was undertaken. The email then proposes an offer of payment to employees based on that review.
[68] I am satisfied that the email marked as CM-3 reflects an agreement of the type contemplated by the terms of clause 21.1. It clearly indicates agreement from the Respondent that respirators are to be used in the Compounding Area, at least for some of the time that employees are in that area. While the terms of a response email from Mr Soueid on 7 April make clear that the proposal was rejected by the Applicant, it nevertheless reflects an actual agreement, though an informal one, by the Respondent with the Applicant, that it is necessary for respirators to be used in the Compounding Area.
[69] The email marked as CM-3 is certainly not a formal agreement. 59 However I agree with the Applicant that a formal agreement is not necessary given the wording of the clause. However, for the reasons set out above, I disagree with the Applicant’s submissions that an agreement is not required at all, or that one can be implied. The email is an agreement between the Applicant and the Respondent. It follows that the entitlement for employees to be paid the allowance provided in clause 21.1. operates on and from 3 April 2020 when the Respondent, by virtue of the email, agreed that respirators where necessary at least for some of the time in the Compounding Area.
[70] The first question posed to resolve the dispute was as follows:
A. Are employees entitled to be paid the allowance provided for in clause 21.1 of the Agreement when working in the compounding area? Yes or No. If the answer to question A is No, the dispute is resolved.
[71] For the reasons set out, the answer to the first question is yes. However, that entitlement did not arise, for the reasons set out above, until 3 April 2020.
[72] As the answer to question A is yes, it is necessary to answer the second question. The second question is:
B. If the answer to the question in A is “Yes”; then for what proportion of time that employees spend working in the compounding area is the allowance payable?
[73] The Applicant’s submissions on this point are:
“The UWU submits that in accordance with the interpretation of the term ‘part thereof’ by the Commission in National Union of Workers v Veyance Belting Pty Ltd[2015] FWC 5557, the respirator allowance in cl 21.1 of the 2018 Agreement should be paid, per hour, on all hours that an employee is rostered to perform work in the Compounding Area, regardless of whether the employee performs other duties outside the Compounding Area, for part of an hour.
The ordinary and plain meaning of the words of cl 21.1 is such that the allowance is payable on the hours that an employee is rostered to perform work in an area, which by agreement between the employer and the union, necessitates the use of a respirator.
The language in cl 21.1 does not support an interpretation that the respirator allowance is only payable on the actual hours for which an employee wears the respirator, nor does it support an interpretation that the allowance is only payable by reference to certain duties such as chemical mixing or dispensing that require the wearing of a respirator.
The respirator allowance in cl 21.1 is therefore payable on all hours that an employee is rostered to perform work in the Compounding Area. This accords with the industrial realities of performing work in the Compounding Area and the necessity of wearing a respirator at all times, as chemical vapours and particles continue to remain in the atmosphere of the Compounding Area, long after the mixing or dispensing process. Hazardous chemical particles are also disturbed and introduced again to the atmosphere, creating a risk of exposure to the chemicals by inhaling, when cleaning duties are undertaken.” 60
[74] The Respondent disputes the Applicant’s submissions as to the way in which the allowance should be paid. The submissions of the Respondent are:
“Clause 21.1 of the 2018 Agreement states that persons “required to work in any area by which agreement between the employer and the union necessitates the wearing of a respirator … shall be paid the following allowance per hour or part there of extra”.
The Respondent submits that the ordinary meaning of the clause is that an employee is only entitled to be paid the allowance for each hour, or part thereof, that they are required to perform duties that necessitate the wearing of a respirator, rather than for the period of time that they may notionally be required to be present in an area where a respirator may or may not be required, depending on the nature of the material being handled.
That is to say, the period for which the allowance is properly to be paid depends not upon whether a person is merely present in a given area (which is of itself a neutral consideration about hazardous chemicals are being handled), but rather whether they are performing duties in that are that in fact “necessitates” a respirator to be worn. The allowance depends on the actual necessity that they wear a respirator, rather than the area they may notionally be required to perform their duties.
It is submitted that this construction is consistent with the purpose of the clause, which is to ensure that an employee is compensated for any inconvenience or discomfort associated with the requirement to wearing of a respirator, as opposed to simply being present in a place where a respirator might be required to be worn.” 61
[75] The Respondent further submits that this construction is consistent with the practices in operation in the Respondent:
• The Witness Statement of Terry Wasley states that employees are not ‘rostered” on a weekly or daily basis to be present in any of the Compounding Rooms, either at all or for any given period of time. Production targets are determined in advance for which products must be mixed that week or day. The particular product concerned, in turn, affects the nature of the material that must be mixed or otherwise handled in making the product. It is not suggested in the UWU Submissions that all materials used in the Compounding Rooms or handled by an employee on any given shift contain substances which require a respirator to be worn.
• The Statement of Terry Wasley further states that, on any given day or shift, a production employee may be required to perform duties both within and outside a Compounding Area. It would be anomalous if an employee was entitled to be paid a respirator allowance not only for the period of time that they were present in a Compounding Room (but were not being exposed to hazardous materials), but also for any period of time that they outside the Compounding Areas and also not performing duties that exposed them to the need to wear a respirator.
• Further, the Witness Statement of Fanizah Downs states that of the total substances used in the Compounding Rooms, approximately only 11% contain raw materials that would be sufficiently hazardous to require the use of respirators.
• Finally, the authority referred to in the UWU Submissions in these respects does not support their claim. The decision in National Union of Workers v Veyance Belting Pty Ltd [2015] FWC 5557 concerned a term in an enterprise agreement which stated that “an employee whose employment is terminated by reason of redundancy” must be paid a redundancy amount of 3.5 weeks’ pay “for each year of continuous service or part thereof”.
• After failing to identify any comparable terms in a number of enterprise agreements to which it was referred, the Commission held that each 3.5 weeks redundancy payment increment was due for any year or part-year of service, rather than on a pro-rata basis. It is submitted however that the purpose of a redundancy payment is different from, and distinguishable to, the payment of an allowance designed to compensate an employee for the inconvenience and any discomfort of having to wear a respirator, depending on the nature of the duties performed. It is, further, inconsistent with the nature of the work practices at the Respondent.
• The Respondent accordingly submits that the answer to Question B in the Directions should be that the allowance (if payable according to Question A, which is denied) should only be paid for the proportion of time that employees spend handling and dispensing materials in the Compounding Rooms in which a respirator is required to be used. 62
[76] Further, the Respondent submits that “if an agreement is found to have occurred, the allowance should properly only be for the periods that Respirators are required to be, and were in fact, worn. The Respondent repeats paragraphs [62]-[75] of its Primary Submissions. The Statement of Maciej Sobczyszyn states that the allowance was a “’discomfort’ allowance”. The Respondent agrees. To require payment for other times in which an employee was not required to be discomforted would be contrary to the presumed intent of the clause.” 63
The answer to the second question
[77] The Applicant submits that the allowance should be paid, per hour, for all hours that an employee is rostered to perform work in the Compounding Area, regardless of whether the employee performs duties outside of the Compounding Area for part of an hour, and say that the language of the clause does not support an interpretation that the respirator allowance is only payable by reference to times when an employee is required to wear a respirator. They contend that their interpretation is consistent with the “industrial realities” of performing work in the compounding area as “chemical vapours and particles” remain in the compounding area long after the mixing or dispensing process. 64
[78] In my view, the ordinary meaning of the clause is not that, once an agreement has been reached that respirators are to be worn in an area, as there is here, that at all times an employee is working in that area, they be paid the allowance. Irrespective of whether it is necessary at a particular time to wear a respirator, I am not satisfied that this is a correct construction of the meaning of the clause.
[79] Firstly, it is apparent that the entitlement to the payment cannot arise in circumstances where an employee is not working in the relevant area (the Compounding Area) as a matter of fact. The operation of the clause is predicated on employees being required to work in an area. This can hardly be satisfied in circumstances where the employees are not actually working in the area, whether rostered to work there or not. If they are not working in the area, one would presume that they are not required to work there. In any case, the evidence is that “employees are not ‘rostered’ on a weekly or daily basis to be present in any of the Compounding Rooms, either at all or for any given period of time.” 65 In such circumstances the Applicant’s proposed application of the clause is not only wrong, it is unworkable.
[80] The next consideration is if employees should be paid the allowance for all hours, or part thereof, that they are in the Compounding Area, regardless of whether the use of a respirator is necessary or not. In my view, the frequency of the entitlement to the allowance continues to be referable both in the terms of the agreement that was a precondition to the entitlement arising at all, as well as the words “necessitates the wearing of a respirator”. In this matter, the agreement reflected in CM3 indicates that the Respondent has agreed that the use of respirators is necessitated for a proportion of the time that employees are in the Compounding Area, and not that an employee will receive the allowance every time they enter the Compounding Area. Nor is it suggested by the Applicant that in their submissions that all materials used in the Compounding Rooms or handled by an employee on any given shift contain substances which require a respirator to be worn. The claim that vapours and particles remain in the atmosphere “long after” the mixing is completed is not supported on the evidence.
[81] A difficulty with the Applicant’s construction is that it is one that would not lead to a sensible industrial outcome. 66 By way of a theoretical example, it may be that as a matter of fact it is only necessary to wear a respirator, by reference to the relevant health and safety standards, for one day in a five-day working week. On the other four days, there are no chemicals used in the compounding areas that require the use of respirators. However, the Applicant’s construction would mean that employees who worked in the Compounding Area for any reason during the remaining four days would be paid the allowance simply because they were in the area. This could hardly be said to be a sensible industrial outcome, nor is such an outcome likely to be what the framers of the document intended.
[82] A construction of the clause that provides that the allowance is payable for every hour, or part thereof, that an employee is working in the area and must wear a respirator as is necessitated by virtue of the relevant health and safety legislation and standards is a construction which is more consistent with what a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 67
[83] In any case, the actual evidence of the subjective intentions of the parties, were it to be taken into account, does not assist in the interpretation advanced by the Applicant. The Statement of Maciej Sobczyszyn states that the allowance was a “discomfort allowance”. 68 This does not support a construction that employees should be paid the allowance whether discomforted by the respirator or not.
[84] I agree with the Respondent that the decision in Union of Workers v Veyance Belting Pty Ltd [2015] FWC 5557 is of no assistance in constructing the terms of the agreement for the reasons they advance.
[85] Having regard to the consideration above, I have determined that the answer to question B is that the allowance should only be paid for each hour or part thereof, that an employee spends working in the Compounding Area and a respirator is required to be used by the employee. The requirement to use a respirator is to be determined objectively based on the relevant health and safety legislation and standards.
Conclusion
[86] The first question to be answered to resolve the dispute is:
A. Are employees entitled to be paid the allowance provided for in clause 21.1 of the Agreement when working in the compounding area? Yes or No. If the answer to question A is No, the dispute is resolved
For the reasons set out in this decision, the answer to the first question is yes. That entitlement arose on 3 April 2020 for the reasons set out earlier.
[87] The second question to be answered to resolve the dispute is:
B. If the answer to the question in A is “Yes”; then for what proportion of time that employees spend working in the compounding area is the allowance payable?
For the reasons set out in this decision, the answer to the second question is that the allowance should only be paid for each hour, or part thereof, that an employee spends working in the Compounding Area and a respirator is required to be used by the employee. The requirement to use a respirator is to be determined objectively based on the relevant health and safety legislation and standards, including the SDS.
[88] I note that, consistent with terms of clause 12.1.6. of the Dispute Resolution term of the 2018 Agreement, this decision is a determination that is binding on the parties.
COMMISSIONER
Final written submissions
United Workers' Union: 14 September 2020
Mentholatum Australasia Pty Ltd T/A Mentholatum: 25 September 2020
Printed by authority of the Commonwealth Government Printer
<PR724852>
1 Form F10 - Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, at Q2.4
2 Respondent’s Outline of Submissions dated 1 September 2020 at paragraph 7
3 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 3
4 Applicant’s Outline of Submissions dated 17 August 2020 at paragraphs 4-6
5 Respondent’s Outline of Submissions dated 1 September 2020 at paragraphs 12-13
6 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 7
7 Ibid at paragraph 8
8 Ibid at paragraphs 10-13
9 Ibid at paragraph 16
10 Ibid at paragraph 18
11 Occupational Health and Safety Regulations 2017 (Vic) reg.144
12 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 19
13 Ibid at paragraph 21
14 Ibid at paragraph 22-25
15 Ibid at paragraphs 26-27
16 Ibid at paragraph 31
17 Ibid at paragraph 34
18 Ibid at paragraph 35
19 Ibid at paragraph 37
20 Ibid at paragraph 42
21 Ibid at paragraph 43
22 Ibid at paragraph 46
23 Respondent’s outline of Submissions dated 1 September 2020 at paragraphs 17-21
24 Ibid at paragraphs 21-22 and 32
25 Ibid at paragraph 34
26 Ibid at paragraph 35
27 Ibid at paragraph 36
28 Ibid at paragraph 37
29 Ibid at paragraph 38
30 Ibid at paragraph 40
31 Ibid at paragraph 43
32 Ibid at paragraph 44
33 Ibid at paragraph 48
34 Ibid at paragraphs 49-50
35 Ibid at paragraph 52
36 Ibid at paragraph 60
37 Ibid at paragraph 61
38 Ibid at paragraph 60
39 Ibid at paragraph 66-71
40 Ibid at paragraphs 73-74
41 Applicant’s Submissions in Reply dated 14 September 2020 at paragraphs 3-5
42 Respondent’s Submissions in Reply dated 25 September 2020 at paragraph 4(b)-(e)
43 Ibid at paragraph 4(f)(1)
44 Ibid at paragraph 4(g)
45 Ibid at paragraph 4(h)-(j)
46 [2017] FWCFB 3005
47 [2017] FWCFB 4487
48 [2017] FWCFB 3005 at [114]
49 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 7; Respondent’s Outline of Submissions dated 1 September 2020 at paragraph 29
50 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 8
51 AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [41]
52 Mentholatum Australasia Pty Ltd and National Union of Workers Enterprise Agreement 2018 at clause 21.2 and 21.3
53 Applicant’s Outline of Submissions dated 17 August 2020 at paragraphs 10-12
54 Ibid at paragraph 16
55 Respondent’s Outline of Submissions dated 1 September 2020 at paragraph 40
56 Ibid at paragraph 55
57 Ibid at paragraphs 57-58
58 CM3
59 CM3
60 Applicant’s Outline of Submissions dated 17 August 2020 at paragraphs 43-46
61 Respondent’s Outline of Submissions dated 1 September 2020 at paragraphs 65-68
62 Ibid at paragraphs 68-75
63 Respondent’s Submissions in Reply dated 25 September 2020 at paragraph 4(k)
64 Applicant’s Outline of Submissions dated 17 August 2020 at paragraph 46
65 Witness Statement of Terry Wasley, for the Respondent, at paragraph 18
66 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30]
67 AMWU v Berri Pty Ltd[2017] FWCFB 3005 at [114]
68 Witness Statement of Maciej Sobczyszyn, for the Respondent dated 14 September 2020 at paragraph 29
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