Wangaratta Abattoirs Pty Ltd

[2019] FWC 5166

[2019] FWC 5166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Abattoirs Pty Ltd
(AG2019/351)

COMMISSIONER PLATT ADELAIDE, 26 JULY 2019

Application for approval of the Wangaratta Abattoirs Pty.Ltd. and the Australasian Meat Industry Employees’ Union Collective Agreement 2018 – application of clause 31 to “loadout” Award employees for purposes of the better off overall test.

[1] An application has been made for approval of an enterprise agreement known as the Wangaratta Abattoirs Pty.Ltd. and the Australasian Meat Industry Employees’ Union Collective Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Wangaratta Abattoirs Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 10 May 2019.

[3] On 12 and 28 May 2019, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement. The Applicant was represented by David Cunningham (General Manager) and the Australasian Meat Industry Employees Union (AMIEU) appeared as a Union bargaining representative.

[4] During this process, it became apparent that the characterisation of the “loadout employees” under clause 31.2 of the Meat Industry Award 2010 (the Award) was in dispute between the Applicant and the AMIEU. This dispute required determination in order to allow the Better Off Overall Test (BOOT) to be conducted.

[5] On 28 June 2019 Directions were issued with respect to the lodgement of statements and submissions concerning the dispute and the conduct of a Hearing on 9 July 2019.

[6] The Applicant lodged a statement from Mr Cunningham and he gave evidence. A submission was also lodged.

[7] The AMIEU lodged a statement from Mr Graham Smith (Federal Secretary Treasurer of the AMIEU) and a submission.

[8] There is no dispute that the Award covers the enterprise in respect of which the application is made.

[9] Clause 3.1 of the Award contains definitions of a “meat manufacturing establishment”, “meat processing establishment” and a “meat retail establishment”.

[10] There is no dispute between the parties that the operations of the Applicant fall within the definition of a “meat processing establishment”. This characterisation is also supported by the evidence of Mr Cunningham and I accept it.

[11] Clause 31.2 of the Award details the hours of work provisions for various employees and provides as follows:

“31. 2 Ordinary hours of work

(a) The ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 hours in 28 days.

(b) The ordinary hours of work are to be worked continuously at the discretion of the employer, except for meal breaks or other breaks prescribed in the award.

(c) The maximum number of ordinary hours which may be worked on any day or shift must not exceed 10 hours.

(d) Any hours worked outside the spread of hours listed must be paid at overtime rates.

(e) Notwithstanding the spread of hours set out in the tables in this clause, cleaners may be employed on ordinary hours between 6.30 am and midnight in any establishment under this award.

(f) Meat processing establishments (except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products)

(i) The following table shows the spread of ordinary hours for these establishments:

Days	Spread of hours
Monday to Friday	6.00 am–8.00 pm

(ii) The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the employer and a majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.

(iii) If agreement is reached in accordance with clause 0 above, the following are the minimum rates to be paid:

•  between midnight Friday and midnight Saturday—rate of time and a half; and

•  between midnight Saturday and midnight Sunday—rate of double time.

(iv) The spread of hours listed in clause (i) may be altered by up to one hour at either side of the spread or by agreement between the employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.

(v) Any work performed by an employee prior to the commencement of the spread of hours and which is continuous with the normal ordinary hours for the purpose, for example, of getting the plant in a state of readiness for processing work, may be regarded as part of the 38 ordinary hours of work.

(g) Meat manufacturing establishments (except for employees of the establishment engaged in retail and/or wholesale sales of fresh meat and/or meat products)

(i) The following table shows the spread of ordinary hours for these establishments.

Days	Spread of hours
Monday to Saturday	6.00 am–6.00 pm

(ii) Saturday ordinary hourly rate in meat manufacturing establishments:

•  Up to four ordinary hours may be worked by an employee on Saturday between the hours of 6.00 am and 6.00 pm and the employee will be paid at the rate of time and a quarter.

•  Casuals working ordinary hours on Saturday receive the penalty outlined in the dot point above instead of the casual loading penalty referred to in clause 15.9.

(h) Cleaners

(i) Where ordinary hours for an employee are commencing after 8.30 am and prior to 12.00 noon, employees must receive their ordinary hourly rate plus 5%.

(ii) Where ordinary hours for an employee are commencing at 12.00 noon or later and finish at or before midnight, employees must receive their ordinary hourly rate plus 12.5%.

(i) Meat retail establishments (including employees of meat processing establishments and meat manufacturing establishments engaged in retail and/or wholesale sales of fresh meat and/or meat products)

(i) The following table shows the spread of ordinary hours for these establishments.

Days	Spread of hours
Monday to Friday	4.00 am–9.00 pm
Saturday	4.00 am–6.00 pm
Sunday	8.00 am–6.00 pm

(ii) Saturday/Sunday ordinary hourly rate

•  All ordinary hours worked on Saturday between 4.00 am and 6.00 pm must be paid at the rate of time and a quarter.

•  All ordinary hours worked on Sunday between 8.00 am and 6.00 pm must be paid at the rate of time and a half.

•  Casuals working ordinary hours on Saturday or Sunday, as specified in this clause, receive the penalties outlined in the two dot points above, instead of the casual loading referred to in clause 15 – Casual employment.

(iii) Loadout areas

Notwithstanding clauses (i) and (i) above, in loadout areas involving the receipt, storage, inspection, loadout and delivery of meat or meat products, the ordinary hours may be worked between 10.00 pm and 4.00 pm (the following day) on the days Sunday to Saturday. Ordinary time worked between 10.00 pm and 6.00 am must be paid for at time and a quarter for all purposes of the award.

(iv) Weekends off

Once every four weeks, an employee who works ordinary hours on each Sunday over a 152 hour work cycle must be given three consecutive days off which will include Saturday and Sunday. Any alternative arrangements between the employer and the employee must be by mutual agreement and in writing and signed by each of the parties.

(j) Spread of hours for particular employees performing meat retail establishment duties

Subject to clause 31 – Hours of work and notwithstanding other parts of this clause, where an employee of an establishment covered by this award is called upon to perform meat retail establishment duties, the hours of work provisions for the employee will be all the provisions associated with a meat retail establishment as contained in clause 31.2(i) herein.”

[12] There is no dispute that meat sales made by the Applicant are exclusively wholesale – and predominantly to butcher shops.

[13] The Applicant engages “loadout employees”. In his evidence, Mr Cunningham describes the activities of these employees as receiving orders from the sales team (5%), obtaining the various cuts of meat from the store (which may include limited butchering of the meat (10%) required to fulfil the order), loading the meat transport vehicles (50%), determining the route of the delivery truck ensuring that the access keys to the butchers shops were included (for out of hours deliveries) and that the paper work was collated and given to the sales team to allow invoices to be prepared (25%-35%). Mr Smith (who has never visited the Applicant’s operation) did not dispute Mr Cunningham’s description of the activities performed by ‘loadout employees’ at Wangaratta.

Submissions

[14] The AMIEU filed written submissions on 3 June, 3 July and 5 July 2019.

[15] At the conclusion of the Hearing the AMIEU sought an opportunity to provide further written submissions which it did so on 10 July 2019.

[16] The AMIEU submissions are summarised as follows:

•  The Award is a consolidation of three pre-reform awards, the Federal Meat Industry (Processing) Award 2000, the Federal Meat Industry (Retail and Wholesale) Award 2000 and the Federal Meat Industry (Smallgoods) Award 2000.

•  The Award has retained some of the conditions which were specific to each of the three pre-reform awards.

•  The term “loadout” was not used in the Federal Meat Industry (Processing) Award 2000, or the Federal Meat Industry (Smallgoods) Award 2000 despite the existence of loadout areas in all meat processing and/or meat manufacturing establishments. Under those two pre-reform awards persons in the “loadout” area were characterised in groups using alternative names or in the ‘all others’ classifications.

•  The ordinary hours of work applicable to loading/distribution workers is provided by clause 31.2(f) of the Award.

•  The evidence of Mr Smith reveals that the carve-out in clause 31.2(i) was intended to deal with on-site butcher shops at meat processing establishments.

•  The loading/distribution workers at the Applicant’s workplace are simply fulfilling orders and not engaged in retail/wholesale sales.

[17] The further breaking down of carcases by loadout personnel is covered by the classification of “sawyer” or possibly boning or slicing.

[18] The Applicant’s submissions are summarised as follows:

•  The description of the work performed by Wangaratta loadout personnel was given in Mr Cunningham’s evidence.

•  The loadout personnel work in part of the wholesale sale of fresh meat and meat products and only product which has been sold to wholesale clients are handled. Clause 31.2(i)(ii) prescribes the hours of work for the loadout personnel.

•  Mr Cunningham contended that the activities of loadout employees at Wangaratta were an integral function of the wholesale sales team.

•  Mr Smith is not an expert with respect to the Wangaratta workplace.

Principles of Interpretation

[19] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited 1 of the Commission modified the approach to interpretation set out in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (Berri)2. I adopt those revised principles.

Consideration

[20] The issue to be determined is, but for the approval of the proposed Agreement, which provisions of clause 31.2 of the Award would provide the ordinary hours of work for “loadout” employees engaged at Wangaratta Abattoirs.

[21] Part 5 of the Award contains the Hours of Work provision and related matters.

[22] Clause 31.2 (a)-(d) contain general provision which apply to all persons employed under the Award. The balance of the clause provides hours of work provisions which are based on the work performed.

[23] Clause 31.2(f) provides hours of work provisions for meat processing establishments except for employees of those establishments in retail and/or wholesale sales of fresh meat and/or meat products.

[24] Clause 31.2(g) provides hours of work provisions for meat manufacturing establishments except for employees of those establishments in retail and/or wholesale sales of fresh meat and/or meat products. It is not in dispute that the Applicant is not a meat manufacturing establishment and thus this provision is not relevant to the question before me.

[25] Clause 31.2(h) provides hours of work provisions for Cleaners (regardless of what type of establishment they are engaged in).

[26] Clause 31.2(i) provides hours of work provisions for employers who are exclusively meat retail establishments and also for employees of meat processing and meat manufacturing establishments who are engaged in retail and/or wholesale sales of fresh mean and/or meat products (emphasis added). The second limb of clause 31.2(i) is applicable to the facts in this case and results in clause 31.2(i) having application. As a result, I do not accept the AMIEU’s contention that clause 31.2(f) has application to load area employees engaged in retail or wholesale trade.

[27] Clause 32.1(i)(iii) contains specific hours of work provisions for persons engaged in “loadout areas” in “meat retail establishments”.

[28] Clause 31.2(j) provides hours of work provisions for meat retail establishment duties which are not relevant to the activities of the Applicant.

[29] In my view, the relevant provisions of clause 32.1 of the Award are not ambiguous and are capable of interpretation according to their natural and ordinary meaning.

[30] The way in which clause 31.2(i)(iii) is constructed indicates to me that it applies to persons employed in loadout areas in establishments as described by clause 31.2(i). In the Applicant’s case, this includes employees engaged in loadout areas within the portion of the business that engages in wholesale sales of fresh meat and/or meat products.

[31] The next issue is: what activities does a “loadout area” include? It is evident from clause 31.2(i)(iii) that loadout area activities includes the receipt, storage, inspection, loadout and delivery of meat or meat products which is part of the wholesales sales function.

[32] When the evidence of Mr Cunningham is considered, the employees concerned are clearly involved in the loading of meat and/or meat products and assist with the undertaking of the delivery function by the manner in which the product is loaded, organising the delivery route and provision of client’s access keys. In my view this work falls within the non-exhaustive description of loadout work contained in clause 32.1(i)(iii). Mr Cunningham’s evidence confirms that at Wangaratta, this work is an integral part of the sales process. Whilst the evidence is that loadout operators may perform limited butcher work (which could include “sawyer” work), in my view this work is incidental to the loadout work and not at such a level which prevents the proper characterisation of their work as loadout work.

[33] In light of my findings, I determine that the hours for work provision contained in clause 31.2(i)(iii) of the Award apply to loadout employees who perform work as part of the wholesale sales team at Wangaratta for the purposes of assessing if the BOOT test has been met.

[34] The substantive application will be listed for further Hearing.

COMMISSIONER

Appearances (by telephone):

Mr D Cunningham on behalf of the Applicant.

Ms K Rogers on behalf of the AMIEU.

Hearing (Conference) details:

2019.

Adelaide:

July 9.

Printed by authority of the Commonwealth Government Printer

<PR710674>

 1   [2017] FWCFB 3005.

 2   [2014] FWCFB 7447.