Wangaratta Abattoirs Pty Ltd

[2019] FWCA 5354

[2019] FWCA 5354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Abattoirs Pty Ltd
(AG2019/351)

WANGARATTA ABATTOIRS PTY.LTD. AND THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION COLLECTIVE AGREEMENT 2018

Meat Industry
COMMISSIONER PLATT	ADELAIDE, 9 SEPTEMBER 2019

Application for approval of the Wangaratta Abattoirs Pty.Ltd. and the Australasian Meat Industry Employees’ Union Collective Agreement 2018.

[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 17 May, 28 May, 4 June, 28 June, 1 August and 28 August 2019 I conducted Conferences with the parties to seek clarification about aspects of the Agreement.

[4] In respect of the application of the better off overall test (BOOT) a dispute arose over the application of the applicable Award hours of work provision for loadout employees. This matter was arbitrated and my Decision in relation to this issue was published on 26 July 2019 1. That Decision is currently the subject of an appeal.

[5] The Applicant has submitted an undertaking in the required form dated 26 August 2019. The undertaking deals with the following topics:

•  The scope of clause 8.1(1) of the Agreement is amended to include the following:

“If a dispute relates to:

(a) a matter arising under the agreement; or

(b) the National Employment Standards;

(c) these clauses set out procedures to settle the dispute.”

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  Clause 6.3.3(b) (personal/carers leave) of the Agreement is amended to the extent that notice must be given by the employee as soon as practically possible rather than within 24 hours of the commencement of such absence.

•  Clause 6.5(2)(b) of the Agreement shall not apply.

•  Clause 6.8(4) of the Agreement shall not apply. Adoption leave will be administered as per the NES.

•  Clause 2.5(2)(d) (which relates to deductions from wages due to disruptions to production arising from inspections by AQIS or similar authority) of the Agreement shall not apply.

•  The Applicant has clarified that follow-on labourers will be engaged as daily hire timework employees on a rate of $24.41 per hours (with a minimum payment of 6.1 hours per day). If a follow-on labourer has completed their work as per clause 2.7(c) their working day is complete and they can leave early with full payment for their minimum day. Employees will receive an incentive payment for any unit processed above 75 units tally as per clause 3.2.1(ii) of the Agreement at the normal speed of 14 units per hour. These rates include a 10% loading for daily hire.

•  Clause 3.4(1)(a) of the Agreement is amended such that the drivers time and a half overtime rate is $31.06 per hour.

•  Fixed night shift means a night shift on which an employee is not allowed to rotate to give the employee at least one week in each three consecutive weeks on some other shift or shifts. Where this is the case, the Applicant will pay a shift allowance of 30% of the ordinary base rate.

•  Sub-clause 2.11(4) of the Agreement is amended such that an afternoon shift includes: any shift finishing after 8:00pm and at or before midnight, and/or any shift commencing at or after 2:00pm and finishing at or before midnight. Furthermore, this undertaking does not have an impact on any shift that meets the definition of night shift. Night shift is a rostered shift finishing after midnight and at or before 9:00am.

•  The Applicant has confirmed that a minimum engagement period of four hours will apply on Sunday and the applicable rates of pay. Cleaning personnel may be engaged for a minimum of 6 hours per day.

•  Double time must be paid to all personnel working on Sunday other than persons involved in loadout services as per section 31.2(i)(ii) of the Meat Industry Award 2010 (the Award).

•  Ordinary hours for loadout personnel will be organised as per clause 31.2 of the Award. In loadout areas involving the receipt, storage, inspection, loadout and delivery of meat or meat products, the ordinary hours may be worked between 10:00pm and 4:00pm (the following day) on the days Sunday to Saturday.

•  Clause 3.10(3) of the Agreement will be amended such that where the rate is less than the Award, it will be adjusted to the Award rate plus 10%.

•  The Applicant will not engage leading hands.

•  The Applicant will launder employees outer clothes free of charge.

•  In respect of clause 3.5 of the Agreement, an employee who is engaged for more than 1.5 hours on any day or shift on duties which carry a higher rate that their ordinary classification will be paid the higher rate for the entire day or shift, or for less than 1.5 hours the for the time so worked.

•  Clause 1.8(6) and 2.4(5) of the Agreement shall not operate so as to preclude any notice required under the NES.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[7] The Australasian Meat Industry Employees Union (AMIEU) has objected to the Agreement approval and provided written submission on 5 August 2019 as modified by its submissions dated 2 September 2019.

[8] In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the description of the persons covered by the proposed Agreement (taking into account that this was a “rollover” Agreement) had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 2) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[9] The AMIEU contends the undertakings are considerable, voluminous and poorly structured and may offend s.190(3) of the Act. I accept that there are a number of undertakings but that does not mean they are unacceptable. With respect to their drafting, whilst improvements could be made this is a lay jurisdiction and the drafting of the undertakings provide sufficient clarity to resolve the issues raised.

[10] The previous objections in respect of undertakings 8 and 11 were discontinued.

[11] With respect to the contentions about conditions concerning “loadout areas” my Decision on that matter is the subject of an appeal and those matters are best addressed there. I recognised that if the appeal is successful that may have an impact on the BOOT and potentially this approval Decision. I do not think it appropriate to delay the approval process and no stay or adjournment has been sought.

[12] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[13] The AMIEU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[14] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 August 2021.

COMMISSIONER

 1   Wangaratta Abattoirs Pty Ltd [2019] FWC 5166.

 2   [2019] FWCFB 245.

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