Vadain Pty Ltd T/A Vadain v Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWC 487

[2020] FWC 487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Vadain Pty Ltd T/A Vadain
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/6558)

COMMISSIONER HUNT BRISBANE, 31 JANUARY 2020

Alleged dispute about any matters arising under the modern award and the NES; [s146] – whether the Manufacturing and Associated Industries and Occupations Award 2010 or the Textile, Clothing, Footwear and Associated Industries Award 2010 applies to employees of a manufacturing enterprise – appropriate classification of employees under relevant award –whether employees work under direct or routine supervision per the classification – whether employees exercise discretion within their level of skills and training - whether employees assist in the provision of on-the-job training – whether employees are responsible for quality of their work – qualifications employees must possess to be properly classified under award

[1] Vadain Pty Ltd T/A Vadain (Vadain) has applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute relating to the classification of several of its employees under the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) or the Textile, Clothing, Footwear and Associated Industries Award 2010 (the TCF Award). The Respondent to this dispute is the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

Background to dispute

[2] Vadain’s business is the manufacture of curtains. To-date, Vadain has applied the Manufacturing Award within its business and to its employees. During May 2018 the CFMMEU raised a dispute with Vadain regarding the application of the Manufacturing Award within Vadain’s business. The CFMMEU contended that the TCF Award applies to Vadain’s employees, and not the Manufacturing Award. In the alternative, the CFMMEU contended that Vadain had incorrectly classified several of its employees, who are members of the CFMMEU, under the Manufacturing Award.

[3] Vadain maintained that the Manufacturing Award covers its enterprise, and all of its employees were and have been engaged in the correct classification. Vadain and the CFMMEU continued to discuss this matter between them throughout 2018 but could not resolve the dispute.

[4] On 21 November 2018 Vadain lodged the present application to the Commission. On 11 December 2018 a conference was convened before me to attempt to resolve the issues between the parties. On 26 March 2019 a telephone conference was convened before me, but the dispute could not be resolved. During the conference of 26 March 2019 both parties indicated a desire for this matter to proceed to arbitration by consent. Both the Manufacturing Award and the TCF Award permit the Commission to arbitrate a dispute by consent.

[5] Directions were set for both parties to file material in support of their positions and this matter was listed for consent arbitration before me.

[6] Prior to the hearing there was some disagreement between the parties as to the appropriate questions for arbitration and some employees who had been part of the CFMMEU’s claim fell away from the claim. During the hearing the parties agreed upon the following questions for arbitration: 1

Question 1:	“What award applies to the employees?”
Question 2:	“What is the correct classification for Mohammed Hussaini under the applicable award?”
Question 3:	“What is the correct classification for Cyriaque Nkgraguhiga under the applicable award?”
Question 4:	“What is the correct classification for Pao Ze Vue under the applicable award?”
Question 5:	“What is the correct classification for Andrew Yang under the applicable award?”
Question 6:	“What is the correct classification for Kim Maria Laws under the applicable award?”

[7] The CFMMEU proposed the following further questions for arbitration, which were not consented to by Vadain:

“If any of the employees have been incorrectly classified under either the Manufacturing Award or the TCF Award, what is the appropriate date from which the correct classification should commence?

And

“If any of the employees have been incorrectly classified under either the Manufacturing Award or the TCF Award, what is the appropriate process for determining the calculation of any back pay arising from the incorrect classification?”

[8] Those additional questions were discussed during the hearing. It was agreed that I would not consider those two additional questions as Vadain did not consent for them to be arbitrated. With the consent of the parties I agreed to note in my decision that in the event that I determined that any of Vadain’s employees should be re-classified, Vadain committed to participate in a further and separate process before the Commission to consider the appropriate commencement date for that re-classification and deal with any issues of back-pay. 2

Site inspection and hearing

[9] On 24 June 2019 I conducted a site inspection of Vadain’s workplace in Crestmead, Queensland. This matter was heard before me immediately following that site inspection, on 24 June 2019 to 26 June 2019. A further day of hearing was required on 6 August 2019 to conclude the CFMMEU’s evidence. On 5 September 2019 the parties returned to provide their closing submissions. Mr Alistair Smith of Counsel appeared on behalf of Vadain, instructed by Carter Newell Lawyers. Ms Vivienne Wiles, Senior National Industrial Officer appeared for the CFMMEU.

[10] The following persons were called as witnesses for Vadain and gave evidence in respect of this matter:

•  Ms Tessa Schouten, General Manager of Vadain;

•  Mr Brian Foster, Production Manager of Vadain.

[11] The following persons were called as witnesses for the CFMMEU and gave evidence in respect of this matter:

•  Mr Cyriaque Nkeraguhiga, employee of Vadain;

•  Ms Kim Laws, employee of Vadain;

•  Mr Pao Ze Vue, employee of Vadain;

•  Mr Andrew Yang, employee of Vadain;

•  Mr Mohammed Hussaini, employee of Vadain;

•  Ms Elizabeth MacPherson, Compliance Officer of the CFMMEU;

•  Ms Vivienne Wiles, Senior National Industrial Officer of the CFMMEU.

[12] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

Evidence and submissions of the Applicant

Evidence of Ms Tessa Schouten

[13] Ms Tessa Schouten made two witness statements. Ms Schouten has been the Manager of Vadain since January 2017. She is responsible for overseeing Vadain’s operations, liaising with suppliers and customers, identifying and developing opportunities for Vadain to grow and assisting to resolve production issues, such as those arising from errors in supplied material or errors of Vadain’s employees. Vadain employs approximately 40 people and dispatches around 200 curtains per day. Vadain does not employ any human resources expert within its Australian operations; it seeks external advice for any complex human resources issues.

[14] Vadain commenced operations in Australia during 2014. On or about 10 July 2014 Vadain purchased curtain manufacturing equipment from another business, Cardell Manufacturing Pty Ltd (Cardell), and made offers to all of Cardell’s staff to employ them. Ms Schouten stated that Cardell’s employees had been employed under the Manufacturing Award. At the time of Ms Schouten’s commencement with Vadain in January 2017, all production staff were employed at the ‘C13’ classification level under the Manufacturing Award.

[15] To Ms Schouten’s knowledge, the CFMMEU first attended Vadain’s workplace on 26 February 2018, and after that date attended Vadain’s workplace approximately once per month. On 9 May 2018, the CFMMEU first informed Ms Schouten that it considered the TCF Award should be applied in Vadain’s workplace and Vadain’s employees were being underpaid. From June 2018 to October 2018 Ms Schouten corresponded with the CFMMEU and maintained that Vadain’s position, confirmed through external advice, was that the Manufacturing Award applied to its business and its employees were correctly classified as C13s.

[16] On 13 November 2018 Ms Schouten received a letter from the CFMMEU demanding, amongst other things, that 10 of its members employed by Vadain be reclassified under either the Manufacturing Award or the TCF Award, and receive relevant amounts of back-pay. Upon receiving that letter, Ms Schouten formed the view that the dispute could not be resolved at the workplace level and Vadain commenced the present dispute.

[17] On 1 January 2019 Vadain implemented a new pay structure for its employees, which provides for increased rates of pay per year of completed service with Vadain, up to four years. A table set out in Ms Schouten’s evidence is produced below:

Years of employment	Permanent	Casual
On commencement	$19.47	$24.34
On completion of year 1	$19.69	$24.61
On completion of year 2	$19.95	$24.94
On completion of year 3	$20.22	$25.28
On completion of year 4	$20.55	$25.69

[18] Under the pay structure, an employee commencing employment with Vadain would be paid at the hourly rate for a C13 employee set out in the Manufacturing Award. Ms Schouten stated Vadain intended to increase the pay structure set out above commensurate with the annual increases to the C13 wage set out in the Manufacturing Award. The rates above do not reflect the wage increases made on 1 July 2019.

[19] Vadain’s production team employees require work rights in Australia, but do not need to have any trade or other qualifications. Vadain trains new employees in-house and allocates them to certain tasks and provides further training depending on their aptitude during in-house training and their job performance. In Ms Schouten’s role she observes tasks performed by Vadain’s employees. It is her view that none of Vadain’s production staff involved in this matter are required to:

•  Exercise discretion, initiative or judgement in the performance of their tasks;

•  Perform complex tasks or work from complex instructions and procedures;

•  Be responsible for assuring the quality of their own work;

•  Co-ordinate work in a team environment;

•  Investigate causes of quality deviations or make recommendations regarding preventative action;

•  Record detailed information on, or recommend improvements to, production and/or quality;

•  Take a co-ordinating role for a group of workers or in a team environment;

•  Exercise advanced equipment maintenance and problem-solving skills.

[20] Ms Schouten stated that the production employees work under the supervision of Mr Brian Foster, Production Manager, and Mr Nelson Vong Yang, Assistant Production Manager. Mr Foster and Mr Vong Yang are responsible for allocating and prioritising work, managing and supervising all production employees and controlling the overall quality of all products.

[21] Ms Schouten stated that the training of other staff is not a core part of the role of any of the production employees involved in this matter, and to the extent that any production employees might on occasion be asked to assist with training other production employees they would do so under the supervision of Mr Foster.

[22] Ms Schouten gave evidence about several different processes completed as part of Vadain’s production line and the complexity of tasks completed by Vadain’s production employees.

Pleats

[23] Ms Schouten stated that different types of curtain pleats are formed in different ways, but all pleats are formed before a curtain reaches the packing station. Packers must check that the curtain’s pleat matches the pleat type in the customer order docket.

[24] A single or double pinch pleat is formed using an automatic, laser-guided pleating machine. The operator is only required to feed the right amount of fabric into the machine at a time, at the machine’s instruction. Triple pinch pleats are formed using a different automatic machine, but still requires only that the operator feeds the correct amount of fabric into the machine at one time. For double and triple pinch pleats, the packers must check that no pleats have come ‘unstuck’, and if they find an unstuck pleat, they fold the pleat back into shape and use the table-mounted spot tacker to tack the pleat together again.

[25] Pencil and knife pleats are formed by sewing tape along the back and top of a curtain. The tape has strings passing through it, which is pulled tight by production employees at the packing station to form pencil pleats. No further step is required for pencil pleats. For knife pleats, the curtain goes back to a machinist who sews the pencil pleats down to one side, forming knife pleats.

Sheer cutting

[26] Sheer cutting requires a production employee to consider the measurements set out in a customer order docket, measure out the relevant piece of fabric and make a straight cut of the fabric at the correct length. Ms Schouten stated that there are simple tricks which are shown to employees to make it easier to cut straight, such as pulling on a thread or following cutting guides which are built-in to the cutting tables on Vadain’s workshop floor. Sheer cutters may also need to take the grain of the fabric into account when cutting. 3

[27] Ms Schouten stated that production employees do not generally need to consider the drop of the curtain at the sheer cutting stage, and stated that it is unusual that an employee would be required to take any patterns in the fabric into account at the sheer cutting stage. Ms Schouten considered that sheer cutting is not a complex task, although agreed in cross-examination that a certain level of aptitude is required to perform sheer cutting with the necessary precision and speed. 4 During the hearing, Ms Schouten stated that Vadain expects each of its sheer cutters to cut 300 metres of fabric per day, which is approximately 60 sheer cuts.5

Common skills and relative complexity of curtain manufacturing

[28] Ms Schouten stated that several skills are common amongst all production employees that work in roles requiring sewing, including adjusting a machine’s tension and speed, sewing in straight lines, replacing needles, rethreading machines and sewing care labels into products.

[29] Ms Schouten stated that cutting fabric in a straight line to a measured length is a basic skill. Further, Vadain’s production line environment means that production employees are required to use only one set of skills at a time.

[30] Ms Schouten stated that while all production employees are responsible for checking the quality of their own work, they are not solely responsible for the quality of a finished product. Vadain expects that the quality of a product will be checked at each stage of the production line, which means that each employee’s work is checked by other employees later in the production process. Whenever any production employee identifies a problem, their only task is to draw attention to the problem by placing the fabric on the ‘problem rack’ or by raising the problem directly with management, usually Mr Foster or Mr Vong Yang. Ms Schouten stated that quality checking itself is not complex, requiring only checking that the dimensions, heading and hook type of a product match the order, and checking the product for fabric flaws.

[31] During cross-examination Ms Schouten stated that Vadain does not expect all employees to go over fabric with a fine-toothed comb; a curtain is only thoroughly quality-checked at the packing area station at the end of the production line. If an employee identifies a problem anywhere in the production line, they should place the problematic fabric on one of the ‘problem racks’ or flag it with Mr Foster or Mr Vong Yang. Ms Schouten stated that if there was an obvious error, such as a step of production which was only half-done, an employee may take the relevant order back to the previous production station to be completed. 6

[32] Ms Schouten stated that curtain manufacturing, particularly in production line environments similar to Vadain’s workshop, is much less complex than the manufacture of clothing or footwear.

[33] Ms Schouten gave examples of several more complex sewing skills that Vadain’s employees are not required to perform, such as:

•  Understanding and modifying patterns of the type used in clothing;

•  Formulating design processes and designing patterns or garments;

•  Following complex sewing instructions;

•  Joining angled or curved pieces of fabric;

•  Attaching elastic, buttons, grips or zippers;

•  Embroidering fabric;

•  Folding or stretching fabric during sewing to produce features such as darts or gathering.

[34] In re-examination, Ms Schouten stated that each of the separate tasks in each of its production stations are less complex than making an entire curtain. 7

Mr Brian Foster

[35] Ms Schouten stated that Mr Foster has held the Production Manager position within Vadain’s business for approximately five years, and he worked for Cardell before commencing employment with Vadain. Ms Schouten stated that Mr Foster spends much of his time on a mezzanine level above Vadain’s workshop floor, which allows him to oversee and directly supervise the production employees, all of whom work on the workshop floor level. Ms Schouten stated that Mr Foster identifies issues in the production process from his mezzanine vantage point. She has observed that Mr Foster typically spends about 90 per cent of his time on either the mezzanine level or the workshop floor level, which Ms Schouten counted as being ‘on the floor’, and between 70 – 80 per cent of his time walking around the workshop floor, supervising and directing the production process. The remaining 10 per cent of Mr Foster’s time is spent in Vadain’s office areas. 8

[36] Ms Schouten stated that Mr Foster is required to:

•  Assist in the recruitment of new production employees;

•  Complete in-house induction training with all new production employees;

•  Provide on-the-job training for all new production employees and employees shifting to a new production process;

•  Co-ordinate work performed by production employees;

•  Determine how to deal with production issues and sort items on the ‘problem rack’ into items which can be fixed by production employees and items which must be referred to office staff;

•  Investigate quality deviations and recommend preventative actions, including conducting ‘spot checks’ of orders at various stages of the production line; 9

•  Record information regarding production quality and make recommendations for improvement;

•  Perform machine repairs and maintenance within his level of competence;

•  Directly supervise all production staff to ensure output and quality remains at acceptable levels.

[37] During cross-examination, Ms Wiles asked Ms Schouten about how Mr Foster supervises employees. Ms Schouten confirmed that Mr Foster does not stand next to employees as they work, but Ms Schouten considered that Mr Foster’s oversight of the workshop floor would qualify as ‘direct supervision’. 10

Mr Nelson Vong Yang

[38] Ms Schouten stated that Mr Nelson Vong Yang has been employed by Vadain for about four years and was previously part of the production team. Within the last 12 months Mr Vong Yang has filled the position of Assistant Production Manager. Mr Vong Yang spends approximately 80 per cent of his time on the production floor assisting and directly supervising production employees. The remainder of Mr Vong Yang’s time is usually spent on the vertical cutting machine assisting the production process or in Vadain’s office. 11 Ms Schouten stated that Mr Vong Yang is required to:

•  Complete the induction training of new production employees if Mr Foster is not available;

•  Provide on-the-job training for all new production employees and employees shifting to a new production process if Mr Foster is not available;

•  Co-ordinate work performed by production employees;

•  Investigate quality deviations and recommend preventative actions;

•  Perform routine machine repairs and maintenance;

•  Supervise all production staff to ensure output and quality remains at acceptable levels;

•  Follow up on specific orders that need extra attention to be dispatched on-time.

Mr Pao Ze Vue

[39] Mr Ze Vue commenced employment in Vadain’s production team on 11 May 2017. He works mostly in the ‘fabric intake’ process of the production line, and very occasionally assists with the ‘dispatch’ process.

[40] Ms Schouten stated that Mr Ze Vue’s fabric intake role requires him to take racks of delivered fabric from the delivery area of Vadain’s workshop to his work area on the workshop floor and check newly-delivered fabric against customer orders in Vadain’s order-tracking system. If the delivered fabric matches the customer order, Mr Ze Vue then:

•  Enters the order data into a spreadsheet in the Microsoft Excel program, which calculates the number of ‘drops’ for each location in the production line. It is noted that a ‘drop’ is a piece of fabric which has been cut to the correct size to work with;

•  Prints a customer order docket;

•  Highlights any important features on the customer order docket and adds the planned dispatch date to the docket;

•  Marks the order as ready for production within Vadain’s order-tracking system; and

•  Moves the fabric to the cutting area of the workshop floor.

[41] Ms Schouten stated that if the delivered fabric does not match any customer order, Mr Ze Vue enters the details of the problem into a template document and places the problem fabric onto the appropriate problem shelf. Mr Ze Vue is not required to investigate the causes of an identified problem or recommend any preventative actions or recommendations for improvements.

[42] In the case that a customer order is placed on hold before the relevant fabric has been cut, Mr Ze Vue moves the fabric to the ‘holding shelves’. If the fabric has already been cut, then Vadain’s office employees move the cut fabric to the holding shelves. In either case, if and when a hold is lifted, Mr Ze Vue retrieves the relevant fabric and returns it to the appropriate place in the production line.

[43] In the case that a customer orders alteration of fabric during production, Mr Ze Vue is required to check the relevant order docket to ensure that the requested alteration can be performed. If Mr Ze Vue determines that the requested alteration is possible, Mr Ze Vue takes the fabric to the relevant station in the production line for another production employee to perform the alteration. If Mr Ze Vue identifies any problems with the requested alteration, he enters the details of the problem into a ‘template’ document and produces the fabric and the template document to Vadain’s office employees, who review the problem identified by Mr Ze Vue and the template document, before corresponding with the relevant customer.

[44] Ms Schouten stated that Mr Ze Vue is not required to co-ordinate the work of production employees or determine the priority of Vadain’s orders, other than for alterations.

[45] Ms Schouten was aware of only one occasion when Mr Ze Vue had been required to train other employees. On that occasion, Mr Ze Vue trained two of Vadain’s office employees, Ms Emilee Locking and Ms Mai Song Yang, in the fabric intake process over approximately eight hours. Ms Schouten stated further that Ms Locking and Ms Song Yang had completed the majority of their training before Mr Ze Vue commenced employment with Vadain. 12

[46] Ms Schouten gave evidence in reply to Mr Ze Vue’s evidence about the nature of his role. Ms Schouten stated that Mr Ze Vue does not work in dispatch ‘as required’ and did not recall Mr Ze Vue having worked in dispatch for more than one or two days. Ms Schouten conceded that she was on maternity leave for a period during 2017 and was therefore not aware whether Mr Ze Vue spent any time working in dispatch during the period of her leave. 13

[47] Ms Schouten noted Mr Ze Vue’s evidence that he is required to consider information set out in the ‘notes box’ of customer orders. Ms Schouten stated that Mr Ze Vue’s only task in relation to that information, which has been entered by Mr Foster, is to transfer the information from the notes box to customer order dockets which Ms Schouten did not consider required Mr Ze Vue to ‘adjust’ an order himself. 14 In cross-examination, Ms Schouten conceded that Mr Ze Vue may also change a customer order on oral instructions of office staff or Mr Foster.15

[48] Regarding Mr Ze Vue’s evidence that he had been asked what he would recommend to assist production work flow and inefficiency, Ms Schouten stated that Mr Ze Vue was only asked about those matters because Mr Ze Vue was falling behind in his work at the time and Vadain attempted to help Mr Ze Vue improve his own efficiency. In cross-examination, Ms Wiles put to Ms Schouten that there had been major problems with inefficiency in the fabric intake area when Mr Ze Vue commenced with Vadain and there had been a backlog of work when he started. Although Ms Schouten was on maternity leave when Mr Ze Vue commenced work at Vadain, she denied that there had been ‘major problems’ with the fabric intake area and there was a backlog of work when Mr Ze Vue commenced, but conceded that there was always room for improvement, and some of the area’s equipment was outdated when Mr Ze Vue commenced. 16

[49] Ms Schouten stated that Mr Ze Vue is not required to consider how curtains sent back for alterations may be altered. Mr Ze Vue’s only task with alterations is to check that the curtain sent back matches the description in the customer order docket. Only if an alteration is obviously impossible, such as making a curtain wider, might Mr Ze Vue determine that such an alteration is impossible. 17

[50] Ms Schouten stated Mr Ze Vue was not asked to create ‘problem templates’, which existed prior to Mr Ze Vue’s employment. Ms Schouten accepted that Mr Ze Vue occasionally modifies existing problem templates to deal with new problems. 18

[51] Ms Schouten noted Mr Ze Vue’s evidence about other employees approaching him in relation to fabric shortages. Ms Schouten stated that Vadain has instructed Mr Ze Vue to refer any such questions to Mr Foster or Mr Vong Yang and not deal with them himself. Ms Schouten agreed that Mr Ze Vue often attempts to use his initiative to resolve production problems. However, it can be counter-productive if Mr Ze Vue attempts to deal with such problems at the expense of his assigned tasks. 19

[52] In cross-examination, Ms Wiles put to Ms Schouten that Vadain’s business had increased within the last six months and the workload of Mr Ze Vue’s fabric intake role had consequently increased. Ms Schouten stated that Vadain’s business had shifted to taking more commercial orders and receiving more consignment stock, but she did not agree that Mr Ze Vue’s workload had necessarily increased. Ms Schouten stated that occasionally an extra person is needed in the fabric intake area to assist Mr Ze Vue, but she attributed that to inefficiency, rather than an increased workload. 20

[53] In cross-examination, Ms Wiles put to Ms Schouten that since the CFMMEU had raised the skill level disputes in this matter, Vadain had consciously limited Mr Ze Vue’s work tasks to make it appear that he has less responsibility and skill than he in fact has. Ms Schouten denied limiting Mr Ze Vue, and stated that she considered Mr Ze Vue to be very intelligent and have more skills than Vadain requires of him in his role, but noted Vadain’s problems with Mr Ze Vue exercising his initiative in a counter-productive manner. 21

Mr Andrew Yang

[54] Mr Andrew Yang commenced employment in Vadain’s production team on 18 July 2017. Mr Yang primarily works at the ‘sheer cutting’ station in the production line, although occasionally he works at the ‘packing’ station. Mr Yang very rarely works at the ‘panel cutting’ station as he is not very quick at panel cutting and is better suited to other work: 22

[55] Sheer cutting requires Mr Yang to perform the following tasks:

•  After checking the customer order attached to a particular roll of fabric, Mr Yang spreads the roll of fabric onto a cutting table and checks the fabric for flaws. If Mr Yang identifies a flaw, he places the fabric on the ‘problem rack’ and attaches a note to the fabric describing the flaw;

•  If the fabric has no flaws, Mr Yang measures the fabric for cutting based on the applicable order and using rulers and cutting guides built-in to the cutting tables. Mr Yang updates Vadain’s order tracking system to show the order as ‘in production’;

•  Mr Yang cuts the fabric the required size and folds it and places it on a trolley to be moved to the next stage of production. For most fabrics, Mr Yang creates a straight, guiding line within the fabric by pulling a thread in the fabric and cutting along that line. Ms Schouten gave further evidence about sheer cutting, which is set out above at [26] – [27];

[56] Packing requires Mr Yang to perform the following tasks:

•  Mr Yang must check that the final product matches the customer order docket, which requires Mr Yang to measure the drop and width, check for flaws and cut loose threads. If Mr Yang identifies any problems, he places the product on the ‘problem rack’;

•  For ‘pencil-pleat’ or ‘knife-pleat’ orders, Mr Yang pulls the wires within the tape on the back-side of the curtain to the correct width and spreads the pleats out evenly. If a pleat has not been formed properly and can be rectified by Mr Yang, he uses a table-mounted ‘spot tacker’ to tack a pleat back into place. Ms Schouten gave evidence about the different types of curtain pleats produced at Vadain, which is set out below at [23] – [25];

•  If the finished product matches the customer order docket, Mr Yang folds the product, hangs it on a hanger and places the hanger and curtain within a plastic sleeve. The entire package is then weighed and hung on a rack awaiting dispatch.

[57] Panel cutting requires Mr Yang to perform the following tasks:

•  After checking the customer order attached to a particular roll of fabric, Mr Yang spreads the roll of fabric onto a cutting table and checks the fabric for flaws. If Mr Yang identifies a flaw, he places the fabric on the ‘problem rack’ and attaches a note to the fabric describing the flaw. If there are no flaws in the fabric, Mr Yang updates Vadain’s order tracking system to show the order as ‘in production’;

•  If the fabric is patterned, Mr Yang checks if the pattern ‘repeat’ in the order matches the pattern in the fabric. If the pattern does not match the order, Mr Yang must calculate the correct size to cut the fabric to, otherwise no cut needs to be done. After calculating any required cuts, Mr Yang uses an ‘automatic cutter’ to cut the fabric, and then folds the fabric and places it on a trolley to be moved to the next stage of production;

[58] Ms Schouten responded to Mr Yang’s evidence about the nature of his role. Ms Schouten agreed with Mr Yang’s evidence that Vadain has no manual or written guide for sheer cutting, but clarified in re-examination that all of the information required to perform a sheer cut is on the customer order docket, and any manual that Vadain could produce for sheer cutting would be less than a page long. Ms Schouten also noted that its employees have many different languages as their first language and not all of them can read English. 23

[59] Ms Schouten stated that sheer cutting only requires Mr Yang to review the dimensions described in a customer order docket and cut the relevant fabric to the required dimensions. Mr Yang is not usually required to do anything to the fabric’s drop except in the unusual case that the drop is very long. If there is unusual fabric which may respond differently to being cut, a test piece is used to perform a practice sheer cut. 24

[60] Ms Schouten agreed with Mr Yang’s evidence that it took him seven months to master sheer cutting techniques and to increase the speed of his sheer cutting enough to keep up with Vadain’s production line. Ms Schouten stated that seven months is an extraordinarily long time for someone to master sheer cutting, and would ordinarily take no more than two weeks for a person to master sheer cutting. 25

[61] During cross-examination, Ms Schouten clarified that Mr Yang and other production employees are not requiredto look for flaws or faults in fabric pieces. Vadain expects that the fabric manufacturer has already checked fabric for flaws. However, if any employee notices a flaw, it is expected that they pull the fabric off of the floor and place it on a problem rack. 26

Mr Cyriaque Nkeraguhiga

[62] Mr Cyriaque Nkeraguhiga commenced employment with Vadain on 10 August 2016. He primarily works in the ‘packing’ station and performs the tasks set out above at [56]. Mr Nkeraguhiga previously worked as a sewing machine operator (a machinist) sewing ‘side seams’, but was moved to the packing station as his machine skills were not as developed as Vadain’s other machinists. Occasionally, Mr Nkeraguhiga is directed to sew side seams using the sewing machines which requires him to perform the following tasks:

•  Fold the sides of the fabric by four centimetres and feed the folded fabric through the sewing machine to create a side seam, and cut the thread after completing the side seam;

•  Place the completed product in a bucket for collection and transport to the next station in the production line;

•  Use an air hose to blow dust off of his sewing machine at the end of the day.

[63] Ms Schouten stated that Mr Nkeraguhiga is usually required to do side seams only when there is a large order, and most large orders involve only one type of fabric. Mr Nkeraguhiga is not ordinarily required to perform tasks that the other machinists perform, such as changing the machine’s tension or replacing needles and thread.

[64] Ms Schouten responded to Mr Nkeraguhiga’s evidence about his experience and the nature of his role, and stated:

•  Ms Schouten was unaware that Mr Nkeraguhiga held any qualifications at all and in any event, Mr Nkeraguhiga is not required to hold any qualifications for his role;

•  Around mid-2018 Vadain decided to move Mr Nkeraguhiga to the packing area as his machining skills were not at the standard required by Vadain, not because Mr Nkeraguhiga expressed a desire to work in the packing area;

•  There are six sewing machines in the side seam area, not four as stated by Mr Nkeraguhiga;

•  Ms Schouten was not aware of and could not verify that Mr Nkeraguhiga had trained any other employee in side seams. It is unlikely that Vadain would have directed Mr Nkeraguhiga to train an employee in side seams given that Mr Nkeraguhiga’s side seams were not up to standard.

[65] In cross-examination, Ms Schouten agreed that Mr Nkeraguhiga had been moved to the packing area full-time after returning from a period of annual leave, and it had not been explained to him why he had been moved to the packing area full-time. 27 Ms Wiles put to Ms Schouten that Mr Nkeraguhiga had not been counselled about his machinist work before moving to the packing area and put that it was coincidental that Mr Nkeraguhiga had been moved to packing full-time around the same time as the CFMMEU commenced its present dispute with Vadain. Ms Schouten stated that the changes to Mr Nkeraguhiga’s work had nothing to do with the CFMMEU’s dispute.28

Mr Mohammed Hussaini

[66] Mr Mohammed Hussaini commenced employment with Vadain on 29 September 2015 and exclusively works as a machinist. Mr Hussaini performs multiple machining tasks and his role generally involves the following:

•  Sewing side seams, different types of pleats, rod pockets and other machining tasks;

•  Fixing mistakes made by other machinists;

•  Sewing care labels into curtains;

•  Adjusting the machine’s tension depending on the type of fabric for the next order;

•  Adjusting the machine’s speed for more fragile fabrics. Mr Hussaini sews using the machine’s highest possible speed and only lowers the speed for types of fabric that necessitate a slower speed;

•  Folding completed curtains and placing them onto a trolley for transport to the packing area;

•  Changing the machine’s needles and replacing the thread, both of which must be done about twice per week;

•  Use an air hose to blow dust off of his sewing machine at the end of the day.

[67] Ms Schouten agreed with Mr Hussaini’s evidence that other employees ask for his assistance in fixing mistakes. Ms Schouten stated that most of the errors that Mr Hussaini fixes are ‘pinholes’ left in fabric by other employees when sewing without thread. Fixing those pinholes requires Mr Hussaini to sew in a straight line over the pinholes. During the hearing, Ms Schouten stated that she did not consider Mr Hussaini’s work to fix mistakes made by others to require a particularly high skill level, and denied that Mr Hussaini fixes problems with curtain eyelets or performs any alterations. 29

Ms Kim Laws

[68] Ms Kim Laws commenced employment with Vadain on 6 December 2017. At the time Ms Schouten gave her statement, Ms Laws had been absent from work for approximately 12 months while in receipt of workers’ compensation. Before her injury, Ms Laws worked primarily as a sheer cutter and performed the tasks set out above at [26] – [27]. Ms Schouten stated that Ms Laws attempted to return to work on suitable duties as a machinist and in the packing area. However, all positions tended to aggravate Ms Laws’ injury and she has not yet returned to work.

[69] Ms Schouten responded to Ms Laws’ evidence about the nature of her role, and stated:

•  There is no sheer cutting machine at Vadain; sheer cutting is only done by hand with scissors;

•  Sheer cutters do not generally need to take into account any patterns in the fabric;

•  The measurement of the drop and the sheer cut does not need to be ‘100% accurate’ at the sheer cutting stage. Except in cases where the drop is very long, sheer cutters do not need to do anything to the drop; 30

•  Sheer cutters do not need to take the selvedge into account, and it is Vadain’s usual practice for the selvedge to be cut off. It is noted that the meaning of ‘selvedge’ is discussed in detail in Ms Laws’ evidence below at [190];

•  Sheer cutters do not need to meet the exact specifications in the customer order. Fabric is cut to the precise length required at the vertical cutting station, and adjustments to the width of the fabric can be made at the pleating station.

[70] In cross-examination, Ms Wiles put to Ms Schouten that she was incorrect that any fabric patterns do not need to be considered during sheer cutting. Ms Schouten estimated that only 15 to 20 per cent of fabrics are patterned and maintained that only very rarely would a sheer cutter need to take a pattern into account when cutting. 31 Ms Schouten agreed that Ms Laws decides the best way to make a sheer cut, including considering the type of fabric she is cutting.32

Evidence of Mr Brian Foster

[71] Mr Foster was employed by Cardell as Head of Production for approximately two years before Vadain took over the business, where he then became Production Supervisor. Around mid-2018, Mr Foster’s position title changed to his current title of Production Manager, although Mr Foster’s duties of employment did not change with his position title. Mr Foster is a member of the CFMMEU.

[72] Mr Foster’s duties of employment include:

•  Assigning production employees to production stations for each day. While most production employees usually work at the station they are most suited to and do not change stations from day-to-day, a limited number of production employees ‘float’ between different production stations;

•  Prioritising work to be completed within the production line;

•  Training all new production employees and existing production employees if they shift to a different station in the production line, and determine whether an employee is competent to work at a particular station;

•  Co-ordinating the work of production employees to ensure production pace, quality and output remain at acceptable levels;

•  Resolving production issues and sorting items on the problem racks between items that can be fixed by production employees and items that must be referred to Vadain’s office;

•  Investigating causes of deviations in quality and deciding on appropriate remedial or preventative action;

•  Recording detailed information on, and recommending improvements to, production processes and output quality;

•  Performing maintenance and repairs on Vadain’s machinery, as Mr Foster is competent to perform;

•  Managing stock and controlling stock levels;

•  Scheduling ‘project orders’ within Vadain’s production schedule and ensuing that expected completion dates can be met and liaising with Vadain’s office about achievable production timeframes.

Direct supervision of production employees

[73] Mr Foster stated that he directly supervises all of Vadain’s production employees and is required to know everything that is happening on Vadain’s production line.

[74] When Mr Foster arrives at work he conducts a walk-through of the production floor to track the progress of Vadain’s different orders. Mr Foster uses software provided by Vadain to assist him in tracking the progress of different orders.

[75] Mr Foster stated that the work performed by the production employees is very repetitive, and most orders can be completed without deviating from normal processes. Mr Foster’s standard supervisory processes are as follows:

•  Mr Foster spends about 85% of his time on the production floor overseeing the production line and ensuring Vadain’s orders are delivered on time. Mr Foster finds it most effective to supervise production and ensure each production employee is being fully utilised, and he does this by walking the production line;

•  Mr Foster spends the remaining 15% of his time on the workshop’s mezzanine level, from which he can oversee the entire workshop floor and can quickly identify any bottlenecks or problems developing in the production line;

•  Production employees are expected to review the due date of each order listed on the relevant customer order docket and prioritise their own work as necessary. However, Mr Foster often needs to remind employees about which orders are most urgent. If any orders are in danger of becoming overdue, Mr Foster prioritises those orders by directing production staff to cease working on their current work and to work on the orders that Mr Foster identifies.

[76] Where an order requires some deviation from normal processes, Mr Foster takes additional steps to supervise the order:

•  Mr Foster makes written notes on the customer order docket instructing production employees on how the order is to be completed. Alternatively, Mr Foster may write on the docket instructing production employees to refer the order to Mr Foster after a particular production step is completed;

•  When the fabric arrives at the cutting tables, Mr Foster goes to the workshop floor and discusses his written instructions with the relevant production employee/s. Depending on the nature of the order, Mr Foster may collect the fabric after it has been cut, and then deliver it to the next station and again discuss the process to be completed by the relevant employee/s;

•  Mr Foster often checks the quality of the completed work on the relevant order after passing through each station.

[77] Answering questions from Ms Wiles during the hearing, Mr Foster described his tasks day-to-day which he considered to be direct supervision, as follows: 33

“I walk around.  I tell somebody that they need to do this rack, or move this rack to the next station.  If somebody has a question, I am there beside them to answer the question.  If I'm not beside that person and something pops up out of the ordinary where they don't understand a ticket or they have a problematic fabric, they put their hand up straightaway and call me.  I go down and I help them with their issue.  I help move cartons to the next station.  I am walking around training people from time to time.  I am fixing machines.  I am doing all these sorts of things and to me that's direct supervision.”

[78] Ms Wiles put to Mr Foster that the above actions do not meet the definition of direct supervision, and Mr Foster cannot directly supervise employees when he may only talk to each production employee once or twice per day. Mr Foster maintained that he directly supervises production employees as he walks around the workshop floor, moves orders and fabric around stations and checks employees’ output figures. 34 In re-examination, Mr Foster stated that his experience with curtain manufacturing and Vadain’s processes allows him to directly supervise production employees and the production process generally while walking around the workshop floor.35

[79] Ms Wiles put to Mr Foster that she and Mr Andrew Hack, Organiser, had met with him on 8 May 2019 during a workplace inspection, and Mr Foster had agreed to Ms Wiles that Vadain’s employees are not directly supervised. Ms Wiles’ evidence of this discussion is set out below at [246] – [249]. Mr Foster recalled meeting with Ms Wiles and Mr Hack that day, but could not recall making such a statement to Ms Wiles. 36 When I put to him that there is a distinction between being unable to recall a statement, and denying a statement, he answered that he could not recall the statement.

[80] During cross-examination Ms Wiles put to Mr Foster that production employees make decisions on the best way to undertake their work, which Mr Foster disagreed with. Mr Foster maintained that production employees simply have to follow Vadain’s production procedures, although he conceded that sheer cutters may need to select the correct process to achieve a straight cut and may need to consider the type of the fabric when making a sheer cut. 37

[81] During re-examination, I asked Mr Foster whether he thought he either directly or routinely supervised employees, as follows: 38

Commissioner:	“You've got a big job.  If [Mr Vong Yang] is on the floor all of the time, and I learned yesterday, doesn't have anywhere to sit.  So [Mr Vong Yang’s] not looking at computers like you are, and your evidence is that in your opinion, [Mr Vong Yang’s] doing a bit of both, direct and routine supervision?
Mr Foster:	Yes.
Commissioner:	What are you doing?  Are you doing direct and routine supervision?
Mr Foster:	I believe I've doing direct supervision with routine inspections at departments as the product is flowing through the factory.
Commissioner:	So, you're directly supervising 38 people on the floor?
Mr Foster:	That's in my opinion, yes.
Commissioner:	They're sometimes putting their hand up asking for you to check something?
Mr Foster:	Yes, they put their hand up and they'll shout Brian and wherever I am in the factory at that given time I then go to that employee.
Commissioner:	The dispatch worker will get on and do their job; they'll know what needs to go out?
Mr Foster:	Yes, it's all - once a carton is in plastic and is placed onto a hanging rack, once the rack is full, it's pushed towards the roller door, the middle roller door and then the person in dispatch will take that full rack up to the closest roller door to the office where his computer is and he'll send that product out.
Commissioner:	He'll largely do that without too much intervention from you, would he?
Mr Foster:	No, he's been shown the process, he's been shown the procedure, he's well aware of what's expected of him and it's only if he encounters a problem or something out of the ordinary that he'll contact me.
Commissioner:	What about the two ironers?  How much direct supervision would you or Nelson - - -
Mr Foster:	Quite a lot because they're new to our factory.
Commissioner:	So you need to go and directly supervise ironing, on occasions, do you?
Mr Foster:	Yes.
Commissioner:	What would you do?
Mr Foster:	So I can give them direction as to what fabric needs more attention than other fabrics, regarding to steam and ironing.  I can say this one - don't iron this fabric, just put it straight up onto the rack.  Because, as they're new to our factory, their speed isn't to the speed that I would hope to get them to.  They're improving as time is passing, but we have a number of packers at the packing department that are packing and if they don't get supply of the product, they run out of work.  So it's the ironer's responsibility to ensure that they maintain the speed and keep those people earmarked.”

Problem racks

[82] Mr Foster stated that production employees are not required to solve problems with an order themselves. Production employees only need to quality-check orders for any problems and if they identify a problem, place the problematic order on one of the three problem racks on the workshop floor. Production employees may also leave the fabric to one side and raise it directly with Mr Foster when he next passes that employee’s station.

[83] Mr Foster described each of Vadain’s three problem racks, as follows:

•  The first problem rack is located near the panel cutting station on the workshop floor. If a problem is encountered in any of the initial stages of production (before an order reaches the vertical cutting station) an employee places the order on this first problem rack and completes a problem order template document describing the problem, which Mr Foster reviews along with the fabric;

•  The second problem rack is located near the vertical cutting station. If an employee identifies any problems in the fabric or fabric’s dimensions at this station they place the fabric on the second problem rack;

•  The third problem rack is located near the packing station. Employees at the packing station are responsible for the final quality checks on normal orders. If an employee identifies a problem at this station, they are required to write the problem on the customer order docket and place the fabric on the third problem rack.

[84] Mr Foster is responsible for checking items on the problem rack and considering how identified problems might be resolved. At around the start of 2019, one of Vadain’s more experienced production employees, Ms Chiu Kam Lin (known as “Lourie”) started to assist Mr Foster with solving problems on the third problem rack. Mr Foster stated that Lourie assesses problem items and considers whether she can fix the problem herself, and if so, may simply fix the problem. If Lourie identifies any further, unidentified problems she asks Mr Foster whether she can fix those further problems as well. If Lourie identifies a flaw that she cannot fix, such as a fabric flaw, Mr Foster raises the problem with Vadain’s office staff.

Quality control

[85] Mr Foster stated he designed all of Vadain’s quality control procedures. He stated that most production employees are not required to conduct their own quality control processes. The main quality control processes are undertaken by production employees at the packing station, and include:

•  Measuring the dimensions of a curtain against the dimensions specified in the customer order docket;

•  For pairs of curtains, checking that both curtains of the pair are present;

•  Checking that the correct heading has been used, such as rod pockets or different types of pleats;

•  Checking that any pleats have been correctly formed and spaced correctly and using the spot tacker to correct any pleats that have come loose;

•  Checking that the correct hook type has been used and the hooks have been placed correctly;

•  Trimming any loose threads;

•  Inspecting the entire curtain for any visible flaws;

•  Vadain records which employee packs any given orders and if a problem is later identified with a packed order, Vadain can address the problem with the employee who packed the order and ensure they are performing their quality check correctly.

[86] Mr Foster conducts spot checks of curtains that have passed through the main quality control at the packing station to ensure that the packing production employees are conducting their quality checks to the appropriate standard.

[87] For particularly large orders, Mr Foster checks the quality of work at multiple stages along the production line. He also takes additional steps with production employees to produce ‘test pieces’ at each stage of production so that when work on the order is commenced, Vadain’s machines and the production employees are already set to handle the order correctly. Mr Foster takes these additional supervisory steps for every large order. If Mr Foster is not at work when a large order passes through the production line, Mr Foster instructs Mr Vong Yang to take similar supervisory steps, or the order is delayed until Mr Foster’s return.

[88] In cross-examination, Mr Foster stated that production employees are only required to perform limited quality checks as an order passes though their station, and the checks that they perform depend on the station. For example, sheer cutters, who must spread a piece of fabric out on their sheer cutting table, are expected to make a quick visual check for flaws and to confirm that any pre-existing flaws marked by the fabric manufacturer have been described correctly. However, machinists do not spread an entire fabric out before them and are not expected to visually check an entire piece of fabric for flaws. 39

Employee training

[89] Mr Foster stated that after Vadain took over Cardell’s business, he trained all of Vadain’s production employees in their various positions and established a set of work expectations for all of the production employees at that time. He stated that Vadain’s production employees are presently trained by the following general process:

•  Firstly, Mr Foster works with the new employee on a trial shift. Depending on the station at which the new employee is earmarked to work at, Mr Foster shows them the relevant machinery, how to operate that machinery, the finished product after a curtain passes through their station and how to use any measuring tools required in their role;

•  Mr Foster then pairs the new employee up with another production employee that is experienced at the particular station. Mr Foster noted that English is not the first language of many of Vadain’s production employees, and Mr Foster attempts to find a ‘buddy’ for the new employee who shares a language with that employee;

•  The new employee watches their buddy work on the relevant station for about 30 minutes. The new employee then practices at a station next to their buddy using scrap fabric for 30 minutes to one hour. The new employee can ask questions of their buddy during this practice period, but it is expected that the buddy will continue with their own work and not train the new employee;

•  Mr Foster returns to check the new staff member’s work approximately every 30 minutes;

•  If the new employee continues employment after the trial shift, they can continue to turn to their buddy for assistance. There is no defined duration of the buddy period, but most new employees become relatively independent in their roles within one or two days.

[90] Mr Foster did not agree that production employees are entirely responsible for training other production employees.

[91] In cross-examination, Mr Foster stated that the majority of production employees hired by Vadain have previous industry experience and may already be competent at the tasks of the position they are applying for. The trial shift is mainly an opportunity for a prospective employee to familiarise themselves with Vadain’s machines and curtain manufacturing processes, not necessarily learning new skills. 40

Mr Pao Ze Vue

[92] Mr Foster noted Mr Ze Vue’s evidence that he had been taught to adjust and change work orders by Mr Foster and Mr Vong Yang. Mr Foster stated that he had taught Mr Ze Vue to use a template spreadsheet document which automatically calculates from entered data certain details for an order, such as the number of drops required. Mr Foster has instructed Mr Ze Vue that if the spreadsheet calculations and the customer order docket are clearly misaligned, Mr Ze Vue can amend the customer order docket by hand. Mr Foster did not consider this process to require Mr Ze Vue to exercise any judgement or discretion; he only needs to compare the customer order docket and the spreadsheet calculations and correct the docket if there is a difference. Mr Foster stated that Mr Ze Vue often asks either himself or Mr Vong Yang to check any amendments he has made. If the order in question is unusual or tricky, Mr Ze Vue must discuss the order with Mr Foster before amending the docket.

[93] Mr Foster noted that all large commercial orders are handled by him, not Mr Ze Vue, because the completion dates for large orders are not pre-set and must be determined by Mr Foster. When put to him in cross-examination that Mr Ze Vue ‘processes’ large commercial orders, Mr Foster confirmed that he prints off all the customer order dockets for the large orders and determines the appropriate delivery dates and often takes the dockets to the cutters himself, while Mr Ze Vue’s only task may be to bring the appropriate rolls of fabric to the cutters from the intake racks. 41

[94] Mr Foster stated that Mr Ze Vue sometimes attempts to solve problems on his own initiative. Mr Foster stated that such actions are against Mr Foster’s and Vadain’s directions; Vadain has established procedures for resolving problems efficiently and it is often the case that Mr Ze Vue interrupts that process by attempting to resolve problems on his own.

[95] Mr Foster noted Mr Ze Vue’s evidence that he deals with orders for alterations and as part of that role must consider whether an alteration is possible or not. Mr Foster disagreed that Mr Ze Vue is required to decide whether particular alterations are possible; that is the role of Ms Chiu Kam Lin. In cross-examination, Mr Foster denied ever asking Mr Ze Vue about alterations. 42

[96] Mr Foster noted Mr Ze Vue’s evidence about other employees approaching him with their problems, and stated that he has asked Mr Ze Vue to stop other employees approaching him with their problems and direct them to Mr Foster instead so that Mr Ze Vue can focus on his own work. 43

[97] Mr Foster agreed that he does not directly supervise Mr Ze Vue’s fabric intake role and that he generally speaks to Mr Ze Vue about three to four times per day, most often about problems encountered by Mr Ze Vue that he cannot resolve himself. Mr Foster stated that he also speaks to Mr Ze Vue about how to perform his role more efficiently, such as by not talking to delivery drivers during fabric deliveries, and if Mr Foster can see that Mr Ze Vue is falling behind in his work he attempts to ‘get him moving’.

[98] During cross-examination, Ms Wiles put to Mr Foster that Mr Ze Vue does not just make small talk with delivery drivers; he monitors the delivery of fabric and counts the rolls being delivered to ensure there is no shortfall. Ms Wiles put to Mr Foster that there had been a continuous problem with shortfalls in delivered fabrics which he had tried unsuccessfully to solve with the delivery drivers himself, and Mr Ze Vue had addressed the problem by monitoring deliveries more closely. Mr Foster acknowledged that there had been occasions when shortfalls in delivered stock had occurred, but denied that he had tried to fix the problem with the delivery drivers, instead stating that he had instructed Mr Ze Vue to reject a delivery if the amount of delivered stock was incorrect. 44

[99] Ms Wiles put to Ms Foster that a ‘backlog’ of deliveries can sometimes accrue in the intake area, for example after a period of public holidays when deliveries have been delayed, and the workload of the intake area can increase at those times. Mr Foster stated that the workload of the intake area can fluctuate, but never so much that Mr Ze Vue could not complete his work by himself and without a second person working in intake. 45

[100] Ms Wiles put to Mr Foster that part of Mr Ze Vue’s role is to process stock into Vadain’s computer systems. Mr Foster agreed that Mr Ze Vue processes in-house stock into their systems, but noted that Mr Ze Vue had been slow at processing stock delivered in the week before the hearing, and some stock was still waiting to be processed. In answering further questions from Ms Wiles, Mr Foster stated it is largely up to Mr Ze Vue to determine when he needs to process in-house stock into Vadain’s systems, depending partly on existing stock levels. 46

Mr Andrew Yang

[101] Mr Foster recalled training Mr Yang on the panel cutting machine and at the panel cutting station, and assigning another employee, Robert, to be Mr Yang’s buddy at the panel cutting station. 47 However, Mr Yang struggled at panel cutting and was assigned to other stations, such as the sheer cutting and packing stations. Mr Foster stated that he would not have assigned Ha Le as Mr Yang’s buddy at the packing station, and stated that he always assigns the most experience packing employee, John Fuller to be the buddy for new packing employees. In cross-examination, Mr Foster confirmed that he could not precisely recall assigning Mr Fuller to be Mr Yang’s buddy.48

[102] Mr Foster agreed with Mr Yang’s evidence that he assigned Mr Yang to be the buddy for two other employees of Vadain at the sheer cutting station, one of whom continues to work at Vadain. Mr Foster agreed in cross-examination that term ‘buddy’ is his own terminology and he did not use that term when instructing Mr Yang to help those employees on their commencement. 49

[103] Mr Foster noted Mr Yang’s evidence that he checks fabric for faults, defects and other problems, and decides himself about what to do regarding particular problems including whether he is able to fix such problems himself or whether he needs to tell the floor manager about any particular problem. Mr Foster stated that Mr Yang should not be deciding whether he can fix a problem himself. Mr Foster stated that Mr Yang can at his discretion ‘cut around’ an identified flaw in a piece of fabric. If Mr Yang cannot cut around a flaw, he must put the fabric on the relevant problem rack; he has no authority to determine whether a flaw is a minor or major flaw or how any problem could be fixed. 50

[104] Mr Foster agreed with Mr Yang’s evidence that production employees are required to complete their work to the expected standard and that no employee checks the sheer cutting work before its passes to the next stations in the production line. However, Mr Foster clarified that no-one checks the sheer cutting work because there is a margin for error in the length of the cut which can be corrected at other stations and because it becomes very obvious if a sheer cut is not straight once the fabric moves to the vertical cutting station. Mr Foster reiterated that the quality of all work is checked at the packing station.

Mr Cyriaque Nkeraguhiga

[105] Mr Foster stated that to his knowledge he trained Mr Nkeraguhiga during a three-hour trial shift upon his commencement with Vadain including in performing side seams, and then assigned ‘Liz’ to be Mr Nkeraguhiga’s buddy in accordance with the method set out above at paragraph [89]. 51

[106] Mr Foster disagreed with Mr Nkeraguhiga’s contention that he “cuts the fabric thread with hand scissors” after sewing a seam. Mr Foster stated that Vadain’s sewing machines automatically cut off excess thread once a stitch is completed, and any remaining cotton tails are trimmed at the packing station. Mr Foster conceded in cross-examination that if a machine’s automatic cutter was malfunctioning, a machinist employee would have to use small scissors to cut off the excess thread. 52

[107] Mr Foster denied that Mr Nkeraguhiga is responsible for maintenance on his sewing machine. All production employees, including Mr Nkeraguhiga, must ensure that their station and machines are clean at the end of the day. Mr Foster stated that Mr Nkeraguhiga is only required to change the needles on his machine as required, and only once per week on Fridays is he required to push the machine head back and check the oil level is topped-up, blow out any dust from under the machine head and to use an air hose to generally clean his machine.

[108] Mr Foster denied that Mr Nkeraguhiga’s machinist skills meet Vadain’s minimum competency requirements. Mr Nkeraguhiga is only allocated to a machinist station unless no other skilled machinists are available and then only to do basic tasks such as side seams or corners. When on a machine, Mr Nkeraguhiga is not required to do any more complex problem solving regarding the operation of a sewing machine than replacing broken needles and checking the machine’s tension if threads are breaking.

[109] Mr Foster did not recall Mr Nkeraguhiga ever training another employee in side seams or assigning Mr Nkeraguhiga to be an employee’s buddy for training in side seams, and stated that there were more qualified workers than Mr Nkeraguhiga to fulfil the buddy role for side seams.

[110] Mr Foster agreed that Mr Nkeraguhiga generally speaks to Mr Foster only if he encounters a problem or an issue that he does not understand, and Mr Nkeraguhiga seldom needs guidance on how to perform his role.

Mr Mohammed Hussaini

[111] Mr Foster stated that to his knowledge, upon commencing employment with Vadain Mr Hussaini would have been trained by the method set out above at paragraph [89], and noted that Mr Hussaini was already experienced in tailoring and sewing prior to his work with Vadain and would not have required much training or assistance from his buddy, which Mr Foster conceded could have been ‘Liz’, or ‘Tina’ as asserted by Mr Hussaini.

[112] Mr Foster denied that Mr Hussaini’s work is not checked, and maintained that Mr Hussaini’s work is subject to the same quality control processes as all other work, as set out above at [85] – [87] including for any large project orders that Mr Hussaini works on. 53 Mr Foster denied that Mr Hussaini is responsible for fixing other employees’ mistakes on a daily basis.

[113] Mr Foster disagreed with Mr Hussaini’s contention that he “cuts the fabric thread with hand scissors” after sewing a seam and gave similar evidence as set out above at [106] regarding Mr Nkeraguhiga’s evidence.

[114] Mr Foster denied that Mr Hussaini is responsible for maintenance on his sewing machine and gave similar evidence as set out above at [107] regarding Mr Nkeraguhiga’s evidence.

[115] Mr Foster agreed that Mr Hussaini is capable of performing all routine tasks without asking questions of Mr Foster or Mr Vong Yang. However, Mr Foster does supervise and assist by Mr Hussaini with non-routine tasks and Mr Hussaini is subject to the same general supervision as all other production employees described above at [73] – [76].

Ms Kim Laws

[116] Mr Foster recalled training Ms Laws when she commenced employment with Vadain and showed her how to read Vadain’s customer order dockets, how to record fabric usage in Vadain’s systems and generally how Vadain’s production line operates. Mr Foster maintained when asked by Ms Wiles in cross-examination that showing Ms Laws those three tasks still constitutes ‘training’. 54 Ms Foster confirmed in cross-examination that Ms Laws is very experienced in curtain manufacturing, perhaps more so than Mr Foster.55

[117] Mr Foster stated that there is no ‘sheer cutting machine’ at Vadain and all sheer cutting is performed manually with scissors, which Mr Foster showed Ms Laws how to perform upon her commencement with Vadain. Mr Foster did not instruct nor expect either Mr Yang or ‘Lien’ to be Ms Laws’ buddy at the sheer cutting station but agreed that Mr Yang and Lien were working at the sheer cutting station at the time of Ms Laws’ training and she could have asked either of them for assistance rather than go to Mr Foster with any questions.

[118] Mr Foster agreed that no-one checks sheer cutting work before it goes to the next station. Mr Foster stated that sheer cutting is not checked because it is a simple task; a sheer cutter only needs to measure out the length of the cut and cut the fabric straight, which is the most important thing. It is acceptable for there to be up to a 10cm margin of error in the length of the cut as adjustments can be made at other stations. Mr Foster maintained during cross-examination that he considered sheer cutting to be an easy task despite the matters raised in Ms Laws’ evidence below at [190] – [195], which were put to him. 56

[119] In re-examination, Mr Foster confirmed his evidence that the type of fabric being cut does not make much difference to the process of sheer cutting and, in approximately 95 per cent of cuts involving patterned fabrics, sheer cutters do not need to take any pattern into account. 57

[120] Mr Foster denied that Ms Laws is required to assess or make decisions about any problems she has identified in a piece of fabric. The correct process after identifying a problem is to use the problem rack system described above at [82] – [84], which allows the production line to continue at an acceptable rate, rather than being slowed down by employees attempting to fix problems instead of continuing with other work. Mr Foster agreed that Ms Laws asks him for assistance if she encounters any major problems with an order.

[121] Mr Foster disagreed with Ms Laws’ assertion that no-one checks her work. Mr Foster maintained that all products are checked using the quality control processes set out above at [85] – [87]. Mr Foster stated that he can and does review Ms Laws’ output of work using Vadain’s computer systems. Mr Foster stated that he can clearly see Ms Laws’ sheer cutting station from the mezzanine level and can see the particular fabric that she is working on at any given time, although he cannot see the detail of any particular sheer cut. Mr Foster reiterated that he spends approximately 85% of his time on the workshop floor and only 15% on the mezzanine level.

Mr Nelson Vong Yang

[122] During re-examination, Mr Foster was asked questions and gave evidence about Mr Vong Yang’s work at Vadain. When asked by Mr Smith, Mr Foster stated that it would be very rare for neither himself or Mr Vong Yang to be on the workshop floor, and he could not think of an occasion when that had happened. 58

[123] I asked Mr Foster further questions about Mr Vong Yang’s duties. Mr Foster stated that Mr Vong Yang usually floats between production stations ensuring that orders are moving through the production stations and taking steps to allow orders to move through the production process. Mr Vong Yang also identifies overdue orders and prioritises them within the production line. Mr Foster stated that if an employee encounters a problem while Mr Vong Yang is nearby they are instructed to ask him for assistance and he has the authority to develop a solution for the problem and direct the employee regarding the problem. 59 Mr Foster also stated that Mr Vong Yang maintains the vertical cutters, and could attempt minor maintenance tasks on sewing machines if Mr Foster was not available.60

[124] Mr Foster stated that Mr Vong Yang often assists at the packing station near the end of a shift and fills in at the vertical cutting station if one of the usual vertical cutting employees is not available. 61

[125] I sought Mr Foster’s view on whether Mr Vong Yang either directly or routinely supervises production employees, as follows: 62

Commissioner:	“What do you - would you call it direct or routine supervision?
Mr Foster:	For Nelson?
Commissioner:	Yes?
Mr Foster:	A bit of both, I guess.
Commissioner:	It's a bit hard to direct 38 people, isn't it?
Mr Foster:	It's a challenge.
Commissioner:	Or 37 or 36 if you're out of the equation?
Mr Foster:	It's a challenge, yes.
Commissioner:	If you're spending an hour and a half packaging.  Half an hour cleaning and 20 per cent on the vertical cutter?
Mr Foster:	As I said, that his day varies from day to day.  That's not set in concrete; it depends what needs to be done on any given day.  If for example, Nelson's time is best spent performing a different task than packaging, then we'll get a different employee to fill Huey's role.
Commissioner:	But otherwise, he's helping to move the curtains on to the next station?
Mr Foster:	Yes, yes.  As I described, working behind the scenes.
Commissioner:	A bit of both direct and routine supervision…”

[126] Following my questioning, Ms Wiles put to Mr Foster that the evidence of the employees concerned in this matter was that Mr Vong Yang does not directly supervise them at all unless they directly ask him a question, which they do only on odd occasions. Mr Foster stated that Mr Vong Yang does supervise the production process as he walks the workshop floor and he does raise issues with employees if he spots an issue.

[127] I asked further questions of Mr Foster, as follows: 63

Commissioner:	“Is there any issue with Nelson being relatively young and people - do they respect him?
Mr Foster:	Yes.  As I said, Nelson's a very respected member of the workforce.  To my knowledge people respect him and like him.
Commissioner:	Employees don't think that they know their task best and he's not able to offer much input?
Mr Foster:	Sometimes we've had occasion where that might happen, but also that has happened with myself.  But once we explain the way we do things, and the way that Vadain expects things to be done, and this is how we go about our tasks, that problem gets resolved.
Commissioner:	You have had some employees say well, what would he know, or something like that?
Mr Foster:	I'm not sure if that's ever been said, but you can see some employees on occasion, would be less reluctant to take instructions from myself on occasions or because sometimes they would feel that they would know best.
Commissioner:	They would be more reluctant?
Mr Foster:	Yes, but they're not there to make those decisions; I am.  We're there to make the decisions for them, so they need to follow instructions.
Commissioner:	Because is their patch and that's what they do best and they've been doing it for years and years and they're good at it?
Mr Foster:	Well, some people would claim to probably be making curtains all their lives, that's as I said yesterday, that's where I really went out of my way when I was working in my previous workforce, to learn the product in-depth for a solid year.  I stayed behind working every day to learn the machines because I didn't think it was fair for somebody with little experience to tell somebody with 19 years' experience this is how you do it and we do it this way, without having an understanding of how it needs to be done.  Because that's just not fair and that's how you gain the respect of your co-workers, by doing that.
Commissioner:	So Nelson can approach any person in the operation and give them direction, can he?
Mr Foster:	Yes. And they're expected to follow his direction.”

Vadain’s submissions

[128] Vadain submitted that all of its employees are correctly covered by the Manufacturing Award and each of the employees concerned in this matter are already employed at the correct C13 classification level under the Manufacturing Award.

Coverage of the Manufacturing Award

[129] Clause 4.1 of the Manufacturing Award provides that it “…covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.”

[130] Clause 4.9 of the Manufacturing Award states that the term ‘Manufacturing and Associated Industries and Occupations’ means:

“(a) the following industries and parts of industries:

(i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:

● The products, structures, articles, parts or components set out in clause 4.10…”

[131] Clause 4.10 of the Manufacturing Award sets out the products, structures, articles, parts or components for the purposes of clause 4.9(a)(i) and includes at clause 4.10(ii), “upholstery, furnishing drapery, blinds, screens, awnings, mattresses and bedding.”

[132] Vadain submitted that the words ‘furnishing drapery’ are not defined in the Manufacturing Award and therefore should be given their ordinary meaning, and relies upon the Macquarie Dictionary’s definitions for ‘furnishing’ and ‘drapery’ to fix that meaning, as follows: 64

“furnishing noun… 2. (plural) fittings, appliances, articles of furnishing, etc., for a house or room.”

“drapery noun… 3. coverings, hangings, clothing, etc., of some fabric , especially as arranged in loose, graceful folds.”

[133] Vadain submitted that a curtain is a covering of fabric which is fitted to the windows of a house or room, which tend to fall in loose, graceful folds. Vadain submitted that it is intended that curtains are covered by the term ‘furnishing drapery’ within clause 4.10(ii) of the Manufacturing Award. Vadain submitted that this conclusion is supported by the other categories of products covered within clause 4.10(ii) of the Manufacturing Award which are also types of window coverings.

[134] Vadain submitted that the Manufacturing Award applies to Vadain’s business because it applies to the work of furnishing drapery and the TCF Award does not apply to that work. Vadain submitted that the TCF Award is directed at the manufacture of textiles, clothing and footwear, and while the manufacturing of furnishing drapery uses textiles, it does not involve the manufacture of textiles.

[135] Vadain disputed the CFMMEU’s arguments that Vadain’s business falls within the meaning of ‘textile industry’ in the TCF Award. Vadain referred to the TCF Award’s coverage clause, which states:

“4.1 This industry award covers employers throughout Australia in the textile industry, clothing industry, bag making industry, button making industry, footwear industry and allied manufacturing and fabricating industries and their employees engaged in duties covered by the classifications in this award.”

[136] Vadain noted the CFMMEU’s reliance in the definition of ‘allied manufacturing and fabricating industries’ in clause 3.1 of the TCF Award and its arguments that an employer does not need to manufacture textiles to be ‘in the textile industry’; an employer that designs, develops, manufactures or treats textiles or manufactures products using textile materials can be covered by the TCF Award.

[137] Vadain submitted that none of the various processes and task included in the term ‘allied manufacturing and fabricating industries’ within clause 3.1 of the TCF Award relate to the manufacture of curtains. Vadain submitted that the definition of ‘allied manufacturing and fabricating industries’ act as words of expansion with respect to the TCF Award’s coverage clause and the meaning of ‘textile industry’ and on that basis, the true meaning of ‘textile industry’ within the TCF Award is narrower than the processes and tasks included in the definition of ‘allied manufacturing and fabricating industries’ and narrower than as argued by the CFMMEU.

[138] Vadain submitted that it is appropriate to consider the ordinary meaning of ‘textile’ as an adjective and ‘industry’, and relied on the following definitions:

“textile adjective 1. Woven; made of or resembling a textile; suitable for weaving or manufacture as a textile. 2. Of or pertaining to weaving or textiles.”

“industry noun 1. A particular form or branch of productive labour.”

[139] Vadain submitted that taken together, the above definitions provide the ordinary meaning of ‘textile industry’ which is the branch of productive labour involved in producing textiles. Vadain disagreed with the CFMMEU’s argument that any industry which might use the products of the textile industry may also be part of the textile industry and relied on the following passage from Gibbs CJ in The Queen v Isaac and Others; Ex Parte Argyle Diamond mines Proprietary Limited and Ors: 65

[312] Vadain referred the Commission to a decision of Deputy President Gostencnik in Franca Vicconte; Rosario Condello v Fresh Cheese Co (Aust) Pty Ltd[2018] FWC 6106. The decision was subject to appeal, [2019] FWCFB 165, and quashed in respect to some paragraphs, but not the ones relevant to this present matter. In the decision, the Deputy President was tasked, among other things, to determine if Ms Viceconte was appropriately classified in accordance with the Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Award).

[313] Fresh Cheese had classified Ms Viceconte as a Level 2 employee under the Food Award. Ms Viceconte maintained that she should be classified as a Level 5 employee. The Level 5 definition provided that an employee at Level 5 is an employee who has either completed an AQF Certificate 3 in Food Processing, or has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5.

[314] Ms Viceconte had completed a Certificate III in Process Manufacturing, however it was not, as expressly prescribed by the classification description, an AQF Certificate 3 in Food Processing. The Deputy President found that the first limb had not been met, and considered whether Ms Viceconte had met the alternative limb, as to whether she had equivalent recognised enterprise or industrial experience etc. The Deputy President was tasked with determining, having regard to the words ‘equivalent’ and ‘recognised’, if the Certificate III in Food Processing was equivalent to the AQF Certificate III in Food Processing. He found it was not.

[315] The Deputy President then had further consideration of Ms Viceconte’s other experience in the workplace, having regard to the many units of study undertaken by her in completion of the Certificate III in Food Production. He ultimately found that she did not meet the relevant criteria of Level 5. The Deputy President further considered if Ms Viceconte was a classification Level 4, and after deciding she was not, determined that she was a classification Level 3; not because she held the required AQF Certificate I in Food Processing, but because she had equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 3.

[316] Having regard to the decision in Vicconte, I am satisfied that it is appropriate for the Commission to have regard to the heading of the columns in B.2.1 of the Manufacturing Award where it is stated ‘Minimum training requirement’. To be classified as a C12 employee, an employee must have, as a minimum, an Engineering Production Certificate I or Certificate II in Engineering, or equivalent. ‘Or equivalent’ is helpfully defined within the Manufacturing Award. It is not impossible for an employee performing curtain manufacturing at Vadain to have achieved such a qualification in their earlier work life, or even independently at their own expense and in their own time. It is simply that there appears not to be, on the basis of Ms Wiles’ submissions, much calling for such a qualification given its weighty balance on manufacturing, which in the CFMMEU’s submissions is demonstrative of why employees working in curtain manufacturing would be highly unlikely to have such qualifications.

[317] It is not possible to disregard clause B.3.5(a)(i) where it describes the qualifications required to be classified as a C12 employee. The paragraph has work to do, and it cannot be disregarded. I agree with the Deputy President in Viceconte, and it is an important consideration to determine if the qualification is held or not. There is the alternative if the expressed qualification is not held; the ‘or equivalent’ consideration. In each of the employees the subject of this dispute, none hold the relevant, expressed qualification, nor any of the training recognised as ‘or equivalent’.

[318] The employees submitted by the CFMMEU to be classified as C11 employees do not hold the relevant, required qualifications, nor the alternative, ‘or equivalent’ training.

[319] The CFMMEU’s argument that the Commission should not have regard to the qualifications said to be required, and look at the competencies only is rejected. On a proper construction of the Manufacturing Award, an employee’s classification under the Manufacturing Award is determined by the combination of the “qualification or experience” criteria and the “competencies” set out for ach classification level.

[320] The first limb for each of the employees in this matter has not been met. It is not impossible for it to have been met, however it appears that there has not been an industry effort to tailor a relevant Certificate I course for the kind of work performed by the employees, or for curtain manufacturing generally. This is no criticism of any body, organisation or employer. Simply because it has not been done does not mean that it cannot be done.

[321] I determine that it is not necessary to have regard to the competencies within classifications C12 and C11 to determine if each of the relevant employees perform those competencies or indicative tasks. However, I do wish to say the following.

Is the supervision direct or routine?

[322] If it was necessary to determine if the relevant employees “works under direct supervision either individually or in a team environment” as per classification C13, or “works under routine supervision either individually or in a team environment” as per classification C12, on the evidence before the Commission, I would find that the relevant employees work under routine supervision either individually or in a team environment.

[323] The Commission prefers the evidence of the employees represented by the CFMMEU as to how often their work was supervised or observed by Mr Foster or Mr Vong Yang. Whilst Mr Foster no doubt has an important and very responsible role in the business, he is not directly supervising nearly 40 production workers either individually or in a team environment.

[324] I do not accept the evidence that Mr Foster is on the production floor up to approximately 85% of his working time. Even on Ms Schouten’s evidence, he is in the office approximately 10% of his time. When he is on leave, work is still performed by the production employees, albeit at a slower rate. Work simply does not stop because Mr Foster is on leave. No doubt, Mr Vong Yang supervises employees when Mr Foster is not present, but he cannot alone directly supervise up to 40 production employees.

[325] Mr Vong Yang spends the vast majority of his time on the production floor assisting production employees, but also performing production work, such as the drop cutter. I accept Mr Ze Vue’s evidence that he largely works unsupervised. He meets the delivery drivers, accepts stock from them, enters the detail onto the computer system and moves stock to where it needs to be. It is not a highly skilled role, but he is clearly competent at what he does, despite the unnecessary grumbling from the Respondent that he might spend too much time talking to the delivery drivers; it should not be expected that Mr Ze Vue is to be curt to the delivery drivers. It should be expected that he appropriately greet them and form a relationship to the extent that the delivery and receipt of goods is transactional, but best done when pleasantries are used.

[326] On the evidence of the employees, I would have no hesitation in determining that they work under routine supervision and not direct supervision. Mr Foster’s evidence that he could regularly observe Ms Laws when cutting sheer curtains is somewhat overstated; if he were doing that regularly it would be at the neglect of the other near-40 other workers. In any event, once a person is competent at sheer cutting, on the evidence before the Commission, it requires very little supervision; if any. Routine, not direct supervision is adequate.

[327] Relevant to the supervision provided at the packing station, I consider that there would be very little supervision offered by Mr Foster or Mr Vong Yang, especially given the experience of Mr John Fuller. Mr Foster’s evidence is that Mr Fuller is very experienced, and it is often Mr Fuller who trains new employees. 175 I am not satisfied that Mr Foster often opens up packaged goods to check on the quality of the packing or that he spends any considerable period of time overseeing the work performed in the packing area.

Exercise of discretion

[328] Regarding the other competencies described for classification C12, I find that each of the relevant employees, the subject of this claim, exercises discretion within their level of skills and training. The employees are not automatons. Yes, they do work in accordance with standard operating procedures and established criteria as per the competency in C13, however, they do work with some limited discretion at their respective work stations. To suggest otherwise is an unfortunate and somewhat distasteful attempt to ‘dumb-down’ the employees’ competencies.

[329] I have discussed in some part Mr Ze Vue’s functions. He doesn’t put his hand up all day, requiring visitation by Mr Foster or by Mr Vong Yang to provide instructions on how to do his work or how to overcome obstacles. His evidence, which matches Mr Foster’s is that he might speak with Mr Foster approximately four times per day, and the same with Mr Vong Yang. For the remainder of the day he is tasked with getting on with his job and he does so reasonably autonomously. Whether Vadain likes it or not, employees do approach Mr Ze Vue for assistance.

[330] With respect to Mr Hussaini, he is a skilled machinist. He attends to the sewing machine as is necessary, changing needles due to different types of fabric or when they break. He may be required to change thread on account of different types or colours of fabric. Further, he is tasked with attempting to correct others’ errors by sewing over pin holes created by others. This is quite a skilled task, especially with curtains where a customer could quite readily complain if they found pin holes on account of sunlight shining through their curtains. Mr Hussaini doesn’t perform these tasks by asking Mr Foster each time if he is permitted to do so; he corrects these errors around the performance of his ordinary work.

[331] Mr Hussaini and Mr Nkeraguhiga use their discretion to cut any thread with hand scissors that has not been cut by the automatic cutter; this is not a skilled task. It is an obvious, menial task. I am satisfied, however, that the two employees use discretion to perform minor maintenance on the machines that they use. If the machine is not working efficiently, they each use their judgment to attempt to resolve the issue. Only if the machine requires more complicated review do the two employees involve Mr Foster or Mr Vong Yang.

[332] Mr Yang and Ms Laws perform their tasks on the sheer cutting table with less discretion than Mr Ze Vue or Mr Hussaini. The sheer cutting role is not a particularly skilled role; yes, one needs to be able to cut straight and keep wastage to a minimum. There is limited discretion utilised around cutting around obvious flaws to fabric, or ‘rail-roading’ a printed pattern, which occurs only approximately 10-15% of the time. I would be less inclined than the other roles to determine that sheer cutting employees exercise discretion within their level of skills and training.

[333] For employees in the packing area, there appears to me to be a minimal amount of discretion required to perform the role. The task of pencil pleating and knife pleating, completed in the packing area is a reasonably skilful role, requiring the packing employee to work with another packing employee to pull at threads to cause the pleating. The parameters, however, of how wide the curtain must end up being after the pleating is affected, appears to me to limit the amount of discretion the employee is afforded in performing such a task. The employee cannot decide to pull a pleat too thin, because it will inevitably result in the width of the curtain being too small. Similarly, the employee cannot decide to pull a pleat too thick as it would result in the width of the curtain being too large.

On-the-job training

[334] On the evidence before the Commission, most of the relevant employees have provided some on-the-job training to new employees. In the case of Mr Ze Vue, he nominated quite a few employees he has assisted to train. I accept the evidence of all the relevant employees, and I do not accept Mr Foster’s evidence that he performs the predominant training of new recruits. Any training Mr Foster provides to new recruits must take into consideration Mr Foster’s own ‘buddy’ system where other employees are assisting the new recruit with their on-the-job training.

[335] Mr Foster’s evidence is that Mr John Fuller most often trains new recruits in the packaging area. The training of new employees is not simply left to Mr Foster and Mr Vong Yang.

[336] The criteria in classification in C12 is simply that the employees assist in the provision of on-the-job training. It does not require employees seeking to be classified as a C12 employee to be the predominant or sole trainer. I would have no hesitation in finding that this criteria has been met for all relevant employees.

Responsible for the quality of their own work subject to routine supervision

[337] There is no doubt that the system instituted by way of the problem racks shifts responsibility from production employees to Mr Foster to deal with problem issues. I do, however, consider the evidence of Vadain to be overstated as Mr Foster will only ever know about the items in the problem racks, and not if production employees have at least made an attempt to fix, however minor, the curtain they are attending to. I consider that the relevant employees are responsible for the quality of their work subject to routine supervision. There was no evidence that the problem racks have ever been overflowing with very minor errors that could have easily attended by the production employee.

If qualified, could production employees achieve greater than C13?

[338] In my view, but for the qualifications that the relevant employees must possess to be properly classified as a C12 employee, or have qualifications that are equivalent, I would classify each of the relevant employees as a C12 employee. I certainly would not classify Mr Hussaini, Ms Laws or Mr Yang as C11 employees, as I would not be satisfied that they work from complex instructions and procedures. Nor would I find they co-ordinate work in a team environment, or work individually under general supervision. I have earlier found that the employees work under routine supervision, and I would not accept that they work under general supervision.

Conclusion

[339] In accordance with my reasons above, I find that the questions for arbitration are answered as follows:

Question 1:

“What award applies to the employees?”

The Manufacturing and Associated Industries and Occupations Award 2010

Question 2:

“What is the correct classification for Mohammed Hussaini under the applicable award?”

C13

Question 3:

“What is the correct classification for Cyriaque Nkeraguhiga under the applicable award?”

C13

Question 4:

“What is the correct classification for Pao Ze Vue under the applicable award?”

C13

Question 5:

“What is the correct classification for Andrew Yang under the applicable award?”

C13

Question 6:

“What is the correct classification for Kim Maria Laws under the applicable award?”

C13

[340] The dispute as notified is resolved in accordance with this decision.

[341] By way of a postscript only, it is noted that Vadain has chosen to implement an above-award pay system that recognises completed years of service. Ms Schouten’s evidence is that subject to significant unexpected losses experienced by Vadain, it intends to continue to pay above-award payments and increase them according to the wage rate increases in the Manufacturing Award.

[342] On the rates provided to the Commission relevant to 1 January 2019 rates of pay, employees on completion of one years’ service were to be paid greater than the C13 rate, and on completion of three years of service, the pay rate was equivalent to the C12 rate. The rate payable by Vadain on completion of year 4 exceeded the C12 rate and went almost half-way to the gap between the C12 rate and the C11 rate. On that basis, it is noted that some of the employees the subject of this dispute will be paid at the rate of a C12 employee.

COMMISSIONER

Appearances:

A J Smith for the Applicant, instructed by L Radik of Carter Newell Lawyers

V Wiles for the Respondent.

Hearing details:

24 June 2019, Brisbane.

25 June 2019, Brisbane.

26 June 2019, Brisbane.

6 August 2019, Brisbane.

5 September 2019, Brisbane.

Final written submissions:

Applicant’s Closing Submissions, 2 September 2019.

Respondent’s Final Written Submissions of the Respondent, 2 September 2019.

Printed by authority of the Commonwealth Government Printer

<PR716288>

 1   Transcript of proceedings; PN6 – PN85.

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 64   Macquarie Dictionary, < 4 November 2019.

 65 (1985) 159 CLR 323, 333.

 66   Cf: HSU v North Eastern Care Network, (1997) 79 FCR 43, [61].

 67 (2008) 177 IR 364, 377 – 378.

 68 [2014] FCAFC 148, [31] – [35].

 69   Stannus v CPA Group [2017] FWC 5275, [20].

 70 [2018] FCCA 545, [30].

 71   Applicant’s submissions – merits, 17 June 2019, Annexure 1, Annexure 2.

 72   Manufacturing and Associated Industries and Occupations Award 2010, Schedule B, B.2.1.

 73   Ibid, B.3.4.

 74   Applicant’s submissions – merits, 17 June 2019, Annexure 3, Annexure 4.

 75   Textile, Clothing, Footwear and Associated Industries Award 2010, Schedule C, C.2.5.

 76   Statement of Ms Elizabeth MacPherson, 3 June 2019, Exhibit R2; Supplementary statement of Ms Elizabeth MacPherson, 16 July 2019, Exhibit R6.

 77   Statement of Mr Cyriaque Nkeraguhiga, 30 May 2019, Exhibit R1.

 78   Ibid, Attachment CN-1.

 79   Ibid, Attachment CN-2.

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 94   Statement of Ms Kim Laws, 28 May 2019, Exhibit R3.

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 112   Statement of Mr Pao Ze Vue, 30 May 2019, Exhibit R4.

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 129   Statement of Mr Andrew Yang, 30 May 2019, Exhibit R5.

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 147   Statement of Mr Mohammed Hussaini, 30 May 2019, Exhibit R7.

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 165 [1996] IRCA 166.

 166   PR925731, [9].

 167   Health Services Union of Australia v North Eastern Care Network (1997) 79 FCR 43, 61.

 168   Textile, Clothing, Footwear and Associated Industries Award 2010, clause 3, ‘textile industry’.

 169   Manufacturing and Associated Industries and Occupations Award 2010, cl. 24.3(c), Schedule B, B.3.4, B.3.5, B.3.6, B.4.1, B.4.2, B.4.3, B.4.4.

 170   Ibid, Schedule B.

 171   Textile, Clothing, Footwear and Associated Industries Award 2010, Schedule C, C.1.1, C.1.2, C.1.9, C.1.15. C.1.21.

 172   Manufacturing and Associated Industries and Occupations Award 2010, Schedule B, B.3.3, B.3.4, B.3.5, B.3.6.

 173   Ibid, Schedule B, B.4.3.

 174   PN4100 – PN4150.

 175 Statement of Mr Brian Foster at [86].