Australasian Meat Industry Union of Employees (Queensland Branch) v Meat and Allied Trades Federation of Australia (Queensland Division) Union of Employers [1991] QIRC 89 (1991) 138 QGIG 494

494 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [30 March, 1991 QUEENSLAND INDUSTRIAL RELATIO NS COtv! MJSSION Jnd11 s1ria/ Relanons Act 19':I0 s. 10.12 - application for variation Austraiasian Me ll! Industry Un ion of Emplo yees, (Queens la nd Bra nrh } AND Meat and Allied Trade~ Federat io n of Au.st ra! i.a (Queensland Division) U ni o 11 of Employer~ (.Vo B6 l of l 99 /J) BRJSB:\ ~°E ABATT OlR A WA RD COMMISSIONER ASHWOOD 20 M~rch l 99 ! Waiting Time - Muttoo Slaughtering Departmen, - Tra ining Course - Evidence - lnd usnial Dis pu te - · Empioyee Perform- ance - Incom petence (Emp!oyce) -- Skills - Arbi!rated Ma tt~ r - Un ion would need rnmpeliing reasons fo r changes - Due to variances be1ween de.panment s which would b 1.: , reat ed and oppo- sition of empioyt r. a pplication re fu,ed - Seve rn) maile rs hs to , ,vhich could assist in resolution. DECISION This application by the Australasian Meat in dustry U nion of Emplo yees, ( Queens la nd Bran ch) (the A MIEU / t he app l icant\ requested the de le tion of th e present clause rel ating t0 waiting tirr;~ for emp loy ees in the Mutton Slaughtering Department at th, Metropolitan Regional Abattoir and its replaceme nt bv a new clause an d also for a new clause to be inserted in the Awa rd relating to tra in ing. The respond ent Employer, the Metropolitan Regional Abattoir (the MRA/ thc Employer) opposed the granting of the application as to the section on waiti ng time on the grounds that there was no provis ion in the proposed new clause for wa it ing time no t lO be paid when a delay was not the fa ult of t he employee. T he applicant called tw o witnesses - L.A. Day. t be Secre ta rv for th e applic2.nr Un ion. and S,C Perr)' , slaugh tcrman and li11ion De lega te o n the M utto n Slaughter Floor of the t-ktropo litan Regional Abattoir. !n the cour~c of prescntiug their case the res pond er · called a.s a wnness R.A Wharton. General Manager of the Mc ropolitan Reg io nal Abalto ir. By way of opening the applicant indicated t ha1 it sought to ha ve waiting time provisions apply at the MRA in a manner tha t it was bdieved were appropriate and also in a way t hat would dea rl y de fin e 1he rights and respon ~ibili ti es of parties to the Award. it. was pointed out that ··: he question of wa itmg tim t> or the a ppiicatio n of the curren t waiting \ime provision ha~ bee n a constant or comi nual wu rcc of indus, ri ai disoutat ion between the parties". • The appiica nt then proceeded to outline the ;cries of meet ings and the o utcome of such meetings since these disputes have occurred. !1 appeartd th at many of the di spu l.Cs occ uned over in ter;>re tations ~y management of t he_MRA as to what constituted " vai id" wai, ing ume m accordance with !he pr~se nt Award clause. The re were stoppage; of work for employees not being pa id wait ing time fo r sw ppages of the cha in when rams were being slaughtered, delays occ urnn g rn the " sem ng u p" of slaughtering ga ngs, stoppages occurring as a resu lt of officers of the Department of Primarv lndusuies stoppin~ _lh\; chai n to remove carcases for va~ious rea- sons, mechanical failure, and stoppages of th e chatn attn butcd to alleged incompetency of team membe rs. O ver a pe riod of six mon th s most of the i ss ues associa ted with the fo regoiog disputes were resol ved between the pan ics. The applicant pointed out !hat a: the t nd of ,h e six mon ths there were iwo outstanding issues :-•-- 30 Mardi, 199 i ) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 495 . Payment of wai tin g. time LO learn me mbers where stoppages of the chain occurred throug.'1 the alleged incompetency of a member or members of the team. (The applicant sub mitted that ift.here was inconrnete ncy it occt1 rred because employees were plared in teams withou t adeqoate train ing by the Employer). . The interpret.a ti on by the MRA of non-pay ment of waiting ti me due to "anv s:rike in the meat industry" (those words are in the existi ng waiting time provision in th e Award). The applicant advised that follov.ing further meetings between the parties Lh e State Secretary was requested to prepare "a d~aft docu ment as io what he saw or what the Union saw was a resolul!on io th e various waiting time problems or the application of the waiting time clause that had be.en co ntinu i ng for quite some time". A proposal containing nine points was then prep~red and forwarded by the State Secretary to the MRA. A copy of the proposal was tendered as an exhib it. The Commission was informed that following discussions between the Union and the MRA eight points were agreed upon _and one point, No. 6. could n ot be agreed upon due to the MRA mterpr~-- •ation of the present provision in the Award of non-paym ent of 1aiting time due to "any strike in t he meat industry". Sugge st ions were put as t.o how compiete agreement could be achieved by the parties bu t these p ro pos al s were not accepted. In evidence, Mr Day outlined his involvemem in the " Waiting Time Dispute" and proceeded to refer to the mne pomt proposal e had prepared for resolvi ng the matter, explaining as he wen1 the rationale for the various points. For the purposes of this Decision, it is necessary for a particular portion of clause 34 - Mutto_n Slaughten_ng - of the Bnsbane Abattoir Award to be quoted wnh the s1gnihcant pans 10 11ahcs: - ., Waiting Time.- Subject to the provisions of clause 3 a member of the slaughtering team shall 11 0 1 be pmd fur or receive credit for waiting tinie in respect of an.v delay. in starting wo rk or an_v interrupuon ofwprk due to an;: strike in the meat industrv or by reason of circumstances brought about bv 1h e m is coi1duc1 of employees of the Employer, not be i ng em ployees on the sabiried staff of the Employer, but in respect of delays III stai:1 1ng work or mterrup11ons of work due t0 any other cause exceeding m th e aggregat_e fifteen ( 15) minutes on aoy day, members of 1hc slaughtering team :; hall be paid at the appropriate timework rate (calculated on the basis of a daily tally of 76 sheep and/or lambs per member of t he team) for ali time which he has so lost, m ad<litior, to an y other paym ent pay~ble under th is c la use:·•. l\ is also 1J ec-essarv to set <; ut point 6 of the 9 poin t proposal >r<·parcct hy Mr Day. aga;n wi,h sign ificant parts in italics:- " 6. Where a maj or b .-cakdo wn of machinery occurs, or a s 1.opμagc ,;f work c•;t ur;, , cue 10 lo ss of elcctric_ity, or by a dispute arisi•1g wi!h en;p 1c-y ecs, t ;: hN than A}v!!El.! members Pngaged under 1J1 is award. rh e ,:, m;s shall res t w ith the em plu,ver at to ,,hmher empfoy <>es arf 10 hold themseii'es a,,ailabic to recommence work, wh en file br ea k.down. loss oj power. or dispute has been rect ifi ed during wh ich l ime wa iting 1imr shall he p,,i d. Alt.:rnatively, t he employe r may exercise his opti,)n and ,tand emp loyees down from emp loyme nt for the rem ainder of t he da y. " The wimess. Mr Day, stated th at it was not considered appropriate that "people who are coveret by conditio~s. comp lerely is_olat~? that ma y ha ve gencrntcd that 01s puic-, sho u! a m foct be μen aHscd •. He gave evidence that th e particular provision, in proposal 6. where reference was made to "o ther than AM l EU members" would havt> on lv appl ied on three occasions in recent ye.ars where officers of the Depart men t of Prim a11' rndustries and cle ri cal employees were concerned. T he witness believed th at <foputes in the Mutton Slaughtci ing Department at the MR A ov er waiting tim e "h3:d be_cn eliminated" by observing agrecmen_ts reached and other points mcluded m the proposal he had submitted to management. In cross-examinatio n, Mr Day explained that he was given to understand that the MRA had rej ected his proposal 6 because of the view held by the MRA as to what constituted a strike within the industry i. n relation to the existing provisions in the Award . Mr Da y stated tha t his Union believed that payment of waiting time shouid not be made if work is not being performed and the failure for that work was brought about by misconduct of members (of the AMIEU). In matters beyond the control of t he Employer, as to payment of waiting t ime, Mr Day indicated it was a matter for the Employer to make a decision as to whether " to continue to pay time or use the stand down provision ". Cross-examined as to the proposals be had prepared, Mr Day acknowledged that the proposals had not been accepted by the MRA a nd again stated the proposals, with the exception of No. 6, were in operation and uo problems as to No. 6 had occurred. Mr Day stated that the main purpose of the document he had prepared was to introduce "at the Brisbane Abattoir a system of payment of waiting time which is effectively applied in other meatworks establishments in th is State". He readiiy conceded that point No. 6 would go beyond the present Award provisions. Further, he acknowledged that the (MRA) position was presently that the "wh ole" doc umem prepared by him had been rejec ted. Fu11her, Mr Day ind icated that his list of proposals for handling waiting t.ime disputes could not be used if No. 6 was excluded as it would defeat the whole intention of the document. Mr Perry, the second witness called by the Union, gave evidence of stoppages in the Mutton Slaughtering Department due to lack of "skilled labour" in the slaughtering gangs. The witness stated 1ha1 he was aware that there was a "waiting time clock in the Beef Slaughtering Department•·. He went on to state that there had often been disputation as to the length of time of stoppages in the Mutton Slaughtering Department, but when the matter of a "waiting time clock" was proposed in order to prevent disputation management regarded suggestions of a clock as being that the employees " were only after a clock". Mr Perry stated that the emp loyees only wanted a document which outlined ·' what is waiting time and what is not waiting time·'. He said after the eompietion of such a document there would always be argu- ments as to the length of time of a stoppage and in those circum- stances a waiting time clock " would more than likely solve the problem'·. In cross-examination. Mr Perry indicated that the document pre- pared by Mr Day had been used as. a bas is for resolving waiting time disputes apart from No. 6, which had no1 been the subJect of agreement. Mr Perry said he could not accept the present interpretation of "any strike in the meat industry'' as contained in the Award and he felt it should be changed to strikes which "were the fault of the AMIE U or members". The MR,\ then ea.tied Mr Wharton to gi ve evidence. He stated that if the application was granted it would create inconsistencies with o ther Siaughtering Departments at the Abattoir and it would create a precedent as far as other "Meat Awards" were concerned. He expressed the fo ll owing views as to the princi pl e involved with waiting time as foUows: - where the employer is at fault in a waiting time situation the employer is required to pay. If the employee i~ at fault. or it is some reason which is beyond the con trol of the emp loyer, the employer is not usually required to pay waitin~ time. exce pt in special ci rcumstances which do occur from tune to time and have indeed occurred at the Brisbane Abattoir." (T ranscript page 33). Quest io ned as to circumstances wherein his opinion wa iting time should not be paid, Mr Wharton referred 10 instances beyond the cc,ntrol of the Employer such as stoppages by officers of the Department of Primarf Industries or maj or electricity breakdown. He io dicated that in those circumstances waiting time has not been paid in the past nor had the employees at the Abattoir requested a payment. Referring to th e document prepared by Mr Da y, he said tha t with the exception of point No. 6, it was "a pretty fair document with regard 10 most things" and whilst it had never been agreed to by Management, the proposals have been applied at the MRA. When qu estioned fur ther about point No. 6, Mr Wharton said the detaiis in it were wrong where it en deavoured to perpemate a -- 1 of 2 -- 496 QUEENSLAND GOVERNMENT IND USTRIAL GAZETTE [30 March, 199 l strange situation common to the meat industry where people (employees) "want to go home at the drop of a hat" . Reference was also made to the Employer's proposal that employees wan one hour after the stoppage commenced before a decision was finally made about the. remainder of the day, but agreement on this aspect was not possible. Mr Wharton ga ve evidence that the existing Award clause as to waJtmg lime was pan of other State and Australian Meat Awards with the exception of the fifteen ( 15) minute proviso. ' The witness believed that .the issue surroundi ng point No. 6 could be compared to a"storm m a tea cup". the contentious point did not have ·•a lot of application" but it did have serious implications if agreed to or granted. The applicant submitted that it was the position of the AMIEU that if an Employer was not able to have work available and no fault lies with the employees (AMIEU members covered by the instant Award) then ~here was no obligation for the employees to remain on the premises and to continue to offer themselves for employment. Further, that any Award reference to " strike" within the industry could onl~ realistically apply to employees covered by the Bnsbane Abattoir '\ward. In addi tion, it was pointed out that the Union was .not seekmg a day's wages as minimum payment onl y payment for ume the employees were at the plant. The AMIEU was of the opinion that the current waiting time clause does not specify that employees are required to remain at the Abatto1.r when they are not receiving waiting time payments. That s1tua1100 as a matter of pract ice was not applicable at other meatworks in Queensland. The ~RA restated the position that the application before the Comm1sst0n only related to the Mutton S la ughtering Department. The Employer had difficulty with that pan of the application (in effect Point 6 of the proposal by Mr Day) which did not allow a refusal for payment of waiting time in the case ofa strike involving other than AMIEU members. Th.e application requests that in such situations, waiting time be paid or employees be stood down for the remainder of that day. Jhe MRA pointed ou.t that all other waiting time clauses in Awards 1n the mea t industry in Queensland were worded identically to the present waiti ng time provisions in this Award. A number of Meat Awards of the Australian Commission were tendered and it is observed that relevant provi si ons specify that "employees shall not be paid or receive credit for waiti ng time in respect of ... any stri ke in the meat industry . .. " . Referring to .the yarious Awards tendered, the MRA pointed out that th.e wa11mg time_ prov1s1ons for delays or interruption of work prov1s1ons are 1dcnt1cal or s1mi Jar to that presently appcari.ng in the clause relative 10 the Mutton Slaughtering Department at t he MRA. Such situation confirmed the view of the MRA that there was a principle in the meat industry in Queensland that waiting time should not be paid where the Emplover was not at fault or there was a strike in the meat industry. • The MR_A pointed OIH t.hat bv the Applicant. only seeking to vary the wa111ng. time prov1s1on s (or the Mutton Slaughtering Depan- me.m then 11 would create an incons is tency with provisions as to wa 1tmg l!me between t.he Mutton Slaughtering Depanment and b_oth the Beef Slaughtenng and Calf Slaughte ri ng Sections. Such a s1tuat1on would be fraught with .. industnal danger". Further, the MRA submitted tha t the present provisions in the Award as to wa1tlng ume were similar to provisions applying to other meatworks. The Responden t .went on to point out that the application was before the Comm1ss1on due to the fai lure of conciliation· howeve r should there be an y variation to the existing clause it s·ho~ld not g.o beyond the standards aod principles contained in the waiti ng ume clause at present. At t he conclusion of submissions the Commission questioned the parties as to whether or not t he current practice in the Mutton Slaughtering Departmen t whe!J there was a breakdown or stoppage was fo r the employees to wan for one hour before a decision as rn their continued employment on that day was made, The MRA adv ised !hat it was not a practice but had been examined as pan of 1he negotiations prior to the 'application being fiJed. Funher:- "In some cases they are requested to wait so that some son of assessment can be made of the situation whether it be through a breakdown of machinery or a stoppage by other AMif:U emp loyees. In many cases the AMIEU employees ask the question, ·Is waiting time being paid?' Normallv the answer wou.ld be ·no· and the AMIEU employees ca1i see that they will be go111g home or going on strike and most probably that becomes a dispute in vo lving wa iting 1ime." (Transcript page 4 7). T he Employer agreed with a further question from the Comm is sion that the present Award was silent as to an v wording wh ich entitled the MRA to req uest that employees were to stav at work for a given period following a stoppage, breakdown etc: In response to the questions from the Commission the AMIEU responded in the fo llowing tenns:- "The proposition of employees being required to wait one hom wi thout payment of waiti ng time and then a decision being made as to whether they would be stood down for the rest of the day or asked to continue to wo rk was a position put by the MRA management, which was rejected by the Union. The situation of what happens in practice is - and I will go to that: I think there was evidence by Mr Day early on of one example where there was d is putatiO' ;' with the clerks, and the employees did in fact wait arounL. for a number of hours without the pa ym ent of waiting time, and were then told there would be no likelihood of resuming work, and they went ho me. Roughly speaking, I think 1hey staned at their normal time, went through to about 9, and waned approximately two to three hours and were told there was no prospect of resumption, so thev went home. -/ . \ The normal practice is at the MRA that at the end of the 15 mi nute limit, or. the 15 minutes that is given th rough the current wa111ng time clocks, at the end of that 15 minutes an. appr?priate delegate will ask, ·Are people going LO be paid wamng ume or not?• If the answer is ·No' and in the circumstances of what the company claims to ~ a strike in the industry - and I say 'claims to be a strike in t he industry· - and the answer is 'No·, the practice has been that the members wi ll ha ve a meeting and normally will decide to go home. They are then considered bv the man- agen)en t to be on strike. It is not necessarily -what th ey consider themselves to be, but they are considered to be on strike. The practice to the best of our knowledge in all other meatworks is: a similar question is asked - and I refer to a ll of those clauses put by the MRA - a si mi lar questio· 1s asked m all other meatworks. and if the answer is no they won't be paid waiting time, the people also go home'. but they are not considered to be on strike. Thev are simply stood down for the da y." (Transcript page 48).' Conclusions The material pl.aced before the Comm is sion in these pr oc eedings has been taken into con~1dera t1on m dernltng this application. The Co mm1ss 1on do es not mtend to traverse such material in the se conclusions as it has already been referred to ea rli er in this Decision. Research of the h .i story of the Brisbane Abattoir Award re veals several significant matters relating 10 "waiting tim e·'. Application B2 2 of 196 7 by the Australasian Meat Industry Union of Employees, Queensland Branch, which was heard by M.r Com- missioner J.P. Bennett, request~d the inclusion of a \vaiting time prov1s1on m the Award m rela11on to Ca ttle Slaughte1ing. Th e application was granted by the Commission wi th operative effect from 27 March 196 7. Part of the wording of the wa iting time clause include d:- •• ... shall not be paid for or receive credit in respect of any delay in starting working or an y intermot ion of work due to any strike in the meat industry . •... (64 QGIG 139-1 48). • Then as pan of application BI004 of 19 74 the Aus1ralasian Meat Indu stry Uuion of Employees, Queensland Branch requested that prov1s1on be made m the Mutton Slaughtering Section of the Award for waiting time. 30 March, 199 l] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE In early submissions to Mr Commissioner A. rn bson, who h_ear~ the application on ! 7 December 197.4! the apphcant Umon md1- cated it was requestmg 1dent1cal prov1 s1 ons for the Mutton Slau$h- tering Section as had been included for the Cattle Slaughten ng Section. Pan of the application, wbkh the Commission granted with oper- ative effect from 23 December 1974 (89 QGIG 40-1 ), incl uded the words wbich were quoted earlier in these conclusions.and still form part of the waiting time provisions at the present ume. Und er the circumstances it would seem that the Union would need very c.ompelling reasons for the changes .t~ey seek to be granted in the face of strenuous Employer oppos1tton. It is accepted that other meatworks, b~th in Q.u~ensland and in other parts of Australia, have wa1ttn~ time prov1s1ons 1denttcal to or similar to the waiting time provisions as they relate "to any strike in the meat industry.. . Whilst it does appear that the document prepared ~y Mr Day goes a long wa y to endeavouring to r eso.lve the d1sputat1on over wa1tmg time; however, it must be borne 10 mm4 that there wo~ld n.eed to be close comparability between prov1s1ons for wa11mg time applying across the Departments at th~ MRA and covered by the Brisbane Abattoir Award to be mdustnally pracucable. Due to the variances which would be created between the Mutton and Beef Departments as to waiting time should the apphcauon ' be granted, coupled with the opposition of t~e _E mployer, the Commission is of the opinion that the apphcauon should be refused. The Comm ission is aware that in accordance with the provision of section 4.13.3 of the Industrial Relations Act 1990 the Com- mission is empowered to make a decision irrespective of speci~c relief claimed or applied for by any party. The Comm1ss1on m these particular circumstances hesitates to. exercise the aforemen- tion ed power; but would make the followmg comments m order to assist the parties. There are, in the vi ew of the Commission, several matters which could assist in seeking a resolution, they are:- . The proposals prepared by Mr Day (Exhibit I) which,. to au intents, are being presently .used as a basis for handhng certain waiting time and associated matters. . The provisions currently in use in the Cattle Slaughtering Department. . The provision of a "waiting time clock" .in the Mutton Slaughtering Department similar to the prov1s1on of a clock in the Beef Slaughtering Department. These three matters combined could form .a basis for a provisi.on for wa iting time for the M utton Slaughtenng Department, ~h1<:h could operate at the same time as the on e currently operattng m the Beef Slaughtering Department and compatible Wlth those oper- ating at other meatworks. The parties should direct their energies i n. such a manner in the first instance and if necessary seek the assistance of the Commis- sioner assigned 10 their industry to resolve the matter. Order accordingly. G.M. ASHWOOD, Commissioner. Appearances:- Mr R. Meiklejo hn and Mr R. Richardson for the Australasian Meat Industry Union of Employees, (Queensland Branch). Mr G. Arnold and Mr R. Wharton for the Meat and Allied Trades Federation of Australia (Queensland Division) Union of Employers for and on behalf of the Metropolitan Regional Abattoir. Operative Date: N/A Decision - Waiting Time 497 . . ' .. . . . . . . . . ~ . . . . . -- 2 of 2 --