Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND The Electrical Trades Union of Employees of Australia, Queensland Branch v Oakey Abattoir Pty Ltd [2001] QIRC 222 (2002) 169 QGIG 26

26 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 January, 2002 ######################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 230(3)(b) – arbitration of dispute s. 284(2) – interpretation of certified agreement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND The Electrical Trades Union of Employees of Australia, Queensland Branch AND Oakey Abattoir Pty Ltd (Nos. B1811 and B1968 of 2001) OAKEY ABATTOIR PTY LTD (MAINTENANCE EMPLOYEES) CERTIFIED AGREEMENT 1999 COMMISSIONER BLOOMFIELD 18 December 2001 Dispute – Classification Structure – Arbitration – Application for arbitration under s. 230(3)(b) – Application for interpretation of Certified Agreement pursuant to s. 284(2) – Opposition by Respondent to arbitration – Interpretation of Certified Agreement by Commission – Inconsistency between Agreement and Awards – Agreement takes precedence to extent of inconsistency – Unions’ interpretation not available as a matter of law or as a matter of practicality – Terms of the Agreement to prevail. DECISION -- 1 of 3 -- 4 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 Each of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) in matter number B1811 of 2001 and The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU) in matter number B1968 of 2001 have applied pursuant to s. 230(3)(b) for arbitration of a dispute, D167 of 2001, which concerns the application of a clause in the Oakey Abattoir Pty Ltd (Maintenance Employees) Certified Agreement 1999. Further, or in the alternative, each of the Unions has applied for an interpretation of the same industrial instrument pursuant to s. 284(2) of the Act. The respondent, Oakey Abattoir Pty Ltd, opposed arbitration on the basis that it was not open to the Commission to arbitrate a dispute about the meaning of a term within an agreement. However, the respondent indicated that it was prepared to allow the Commission to interpret the disputed provision. In that regard it submitted a statement of relevant facts. After considering the statement each of the Unions agreed that the statement could be accepted by the Commission as an agreed statement of facts. It was submitted as exhibit 3. The agreed facts are as follows:– 1. The “Oakey Abattoir Pty Ltd (Maintenance Employees) Certified Agreement 1999”, No. CA106 of 2000 (the “Agreement”) binds the parties to the proceedings. 2. The Agreement applies in conjunction with the “Meat Industry (Private Export Companies) Mechanical Etc Interim Award” (the “Interim Award”), by virtue of clause 6 of the Agreement. 3. Oakey Abattoir Pty Ltd (the “Company”) employs people in mechanical and electrical trades (the “maintenance employees”) who are subject to the Agreement and the Interim Award. 4. Clause 6 of the Agreement provides – “This Agreement shall be read and interpreted wholly in conjunction with the Meat Industry (Private Export Companies) Mechanical Etc Interim Award, provided that where there is an inconsistency this Agreement shall take precedence to the extent of the inconsistency.”. 5. Clause 3.3 of the Interim Award provides – “The classification or reclassification of employees covered by this award will be carried out in accordance with the provisions contained in clause 3.7 (Classification/Reclassification) of the Engineering Award – State.”. 6. Clause 7 of the Agreement specifies rates of pay for maintenance employees. Relevantly, clause 7 of the Agreement provides the following classification/wages structure (from 11 August 2001):– Electricians $19.01 per hour x 38 hours = $722.38 Fitters $18.50 per hour x 38 hours = $703.00 Motor Mechanics $18.50 per hour x 38 hours = $703.00 Carpenters $17.98 per hour x 38 hours = $683.24 Storeperson $16.44 per hour x 38 hours = $624.72 End Loader Operator/Labourer $16.44 per hour x 38 hours = $624.72 The Unions submitted that clause 3.2 of the Interim Award provides a classification structure for employees which recognises skills and training. Clause 3.3 provides that classification or reclassification would be carried out in accordance with clause 3.7 of the parent Award. Further, clause 3.1.1 of the Interim Award provides relative wage rates for the different classifications. The Unions also submitted that because the Agreement was silent as to the operation of the classification structure and the reclassification process the classification structure and reclassification provisions of the Interim Award were not inconsistent with the provisions of the Agreement. Because of this, the wage rates provided in clause 7 of the Agreement did not exclude the operation of the classification structure set out in the parent Award or, more relevantly, the Interim Award. The Unions urged the Commission to interpret the Agreement such that the classification structure and relativities provided in the Interim Award be incorporated as if they were a term of the Agreement. Wage rates for employees classified at a level above C10 would be determined according to the relativities provided in both the parent Award and the Interim Award. On behalf of the respondent, Mr R. Wotherspoon submitted that clauses 3.7 and 3.8 of the parent Award provided a mechanism and methodology to assist in the classification and reclassification of employees covered by the parent Award. These clauses were essentially repeated in the Interim Award. There was no similar provision in the Agreement because none was needed. The wages classification structure in the Agreement was completely different and classified people according to their occupation. Mr Wotherspoon said that because both the Agreement and the interim Award provided classifications and wage rates there was a direct inconsistency between the two industrial instruments. Accordingly, by virtue of clause 6 of the Agreement, the Agreement took precedence over the Interim Award to the extent of the inconsistency. There was no obligation on the company to implement a classification structure as contended by the Unions. Mr Wotherspoon requested the Commission to make the following decision:– “Clause 7 of the Oakey Abattoir Pty Ltd (Maintenance Employees) Certified Agreement 1999 applies to relevant maintenance employees of Oakey Abattoir Pty Ltd, to the exclusion of the terms of any other award or agreement, including the Meat Industry (Private Export Companies) Mechanical etc. (Interim) Award – State, the Meat Industry (Private Export Companies) Mechanical etc. Award – State, and the Engineering Award – State.”. Conclusion The Unions’ claimed interpretation must fail for two reasons. Firstly, it is not available as a matter of law and, secondly, it is not available as a matter of practicality. Clause 6 – “Relationship to Parent Award”, of the Agreement provides that the Agreement is to be read and interpreted wholly in conjunction with the Interim Award provided that where there is any inconsistency the Agreement takes precedence to the extent of the inconsistency. As Mr Wotherspoon correctly observed (above) the wages clause in the Interim Award is inconsistent with the wages clause in the Agreement. Whereas the Interim Award contains a classification structure which requires employees to be classified at a particular level, having regard to their skills and the nature of their work according to definitions set out in the Award, the Agreement merely identifies employees as “electricians”, “fitters”, “motor mechanics” and the like. -- 2 of 3 -- 28 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 January, 2002 The provisions are entirely inconsistent. Accordingly, the terms of the Agreement must prevail. Secondly, the Unions’ claim could not be granted as a matter of sheer practicality. A person classified under the Agreement as a “fitter” is entitled to receive $703.00 per week irrespective of whether that person would, in the normal course of events, be classified at C10, C9, C8 or any other classification level under the Interim Award or the parent Award. There is nothing in the Agreement to suggest that the wage rates set out in clause 7 are based on any particular classification level which might apply under the Interim Award or the parent Award. Similarly, there is no provision in the Agreement which would, or could, require the employer to increase any wage rate payable under the Agreement to any higher level simply because the employee claims that he or she should be classified at C9, C8 or any other level. Finally, given that the Agreement was freely entered into between the Unions, the respondent and its employees, it must be taken to be a matter of fact that the wage rates contained in the Agreement properly reflect the skills possessed by employees, the value of the work which they perform and the conditions under which that work is generally performed. For the foregoing reasons, I interpret the Agreement such that clause 7 of the Oakey Abattoir Pty Ltd (Maintenance Employees) Certified Agreement 1999 applies to relevant maintenance employees of Oakey Abattoir Pty Ltd to the exclusion of the terms of any other award or agreement, including the Meat Industry (Private Export Companies) Mechanical Etc. (Interim) Award – State, the Meat Industry (Private Export Companies) Mechanical Etc. Award – State and the Engineering Award – State. It is also well settled that the Commission cannot arbitrate a dispute about a term of an agreement. Accordingly, that aspect of each of the applications is rejected. The Commission so determines and orders. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr E. Moorhead for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Ms K. Inglis for The Electrical Trades Union of Employees of Australia, Queensland Branch. Mr R. Wotherspoon, of the National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers, for Oakey Abattoir Pty Ltd. Released: 18 December 2001 ######################################################################################################################## -- 3 of 3 --