Australasian Meat Industry Union of Employees (Queensland Branch) v Golden Cockerel Pty Ltd [2004] QIRC 94 (2004) 176 QGIG 114

114 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 149 – arbitration of a dispute Australasian Meat Industry Union of Employees (Queensland Branch) AND Golden Cockerel Pty Limited (No. D23 of 2004) DEPUTY PRESIDENT SWAN 21 May 2004 DECISION The arbitration of this matter arises from a dispute conference (D23 of 2004) which was held before the Commission on 2 February 2004. The dispute is between the Australasian Meat Industry Union of Employees (Queensland Branch) (the Union) and Golden Cockerel Pty Ltd (the employer). The dispute relates to a decision made by the employer to declare a training role performed by an employee, Mr Keegan, to be redundant. The effect of this is that Mr Keegan’s pay rate is downgraded from a Level 1 position under the Certified Agreement to a Level 3. The relevant Certified Agreement (Golden Cockerel Pty Ltd and AMIEU – Certified Agreement 2003 (CA274 of 2003)) states as follows: “3.1.3 Trainers Trainers so employed by Golden Cockerel Pty Ltd (who have completed the appropriate accredited training course) shall be classified as Level 1 in the Award.”. • Mr Keegan has been employed by the employer since 1995. He commenced as a Trainer in the Pieces Room some four years ago. -- 1 of 2 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 115 • Mr Keegan claims that many training duties are performed by males only because of the heavy lifting required. • No Trainer is a full-time trainer. Trainers undertake normal production work and then perform training duties as required. • Regardless of this, trainers are always paid at the Level 1 rate according to clause 3.1.3 (the clause) of CA274 of 2003. • There exists another type of trainer called a “step-up trainer”. These employees accepted that position on the basis that they would only receive the higher rate when they were actually performing the training duties when, e.g. a trainer was on holidays etc. • There is no dispute between the parties around this point. • In early January 2004, Mr Keegan was told by his supervisor, Mr Holmes, that he would now only get paid as a trainer at the Level 1 rate when he was actually performing those duties. • This meant that Mr Keegan would revert back to a non-training position at a Level 3. • Mr Keegan claims that he was told by employer representatives that the duties he was performing as a trainer were no longer required. For the employer, both Mr Bartolo (Senior Production Supervisor) and Mr Holmes (Supervisor) spoke of a review which had been undertaken by a consulting organisation to “assist the organisation in a review of our training processes and to write or review training instructions and train Supervisors and Trainers in the new process.” This review was completed in November 2003. The review recorded that no one had been trained in the Pieces Room by Mr Keegan since March 2003. The records also showed, according to the employer, that one trainer, Ms Walker, had trained 31 people between 1 December 2003 and 30 March 2004. In January 2004, Mr Holmes told Mr Keegan that his position as a trainer in the Pieces Room had become redundant. The employer refutes the proposition put by Mr Keegan that there exists a category of trainer called ‘male trainers’. Having said that, they do state that a practice had evolved whereby male trainers would train on the mechanical side of the operations while female trainers would look after areas such as the trays and cut up. The employer states that it has not breached the terms of the Certified Agreement. They say that when Mr Keegan had been “so employed” as a trainer he was paid as a Level 1. Encapsulating their submissions, they state that: • “Steve Keegan had done no training since March 2003; • his position of Trainer was not required to be filled while he was absent for 4 months; and • the other Trainer (Barbara Walker) had also not trained many employees but she had been a Trainer for a longer period and had been more involved with the review of training instructions.”. The clause in question in the Certified Agreement is not new and has been in a previous Agreement. It has always been interpreted in a particular way – i.e. if one was a Trainer then notwithstanding whatever other position one held, the Level 1 pay rate was paid. The applicant’s representative says that Mr Keegan has in fact performed some training since March 2003 and also that there was a period of 14 months (during October 2000 and December 2003) when Ms Walker had not performed training duties. It is also put that for some months Mr Keegan was away from work on Workers Compensation so therefore could not have performed any training duties. Apparently, according to one employer witness, Mr Keegan would have performed training duties during this period but for his Workers’ Compensation leave. In my view, clause 3.1.3 of the Certified Agreement has been understood to operate in a certain way (suitable to both parties) for some time. It has been in a previous Certified Agreement and the understanding of its operation was as the Union now contends. The time has now arisen where the employer wishes to construe the clause differently. In my view, that course is better undertaken through the enterprise bargaining process. If the employer then wishes to change the historical understanding of the clause, it should attempt to effect such change in the next Certified Agreement. The reasons for so determining are as follows: • There appears to have been an inconsistency on the employer’s part in the manner in which they have treated Mr Keegan. • His situation, at times, has been no different to that of the other Trainer in his area. The other Trainer has not been so adversely affected. • The clause in question has operated in a manner accepted by both parties for a period of time. That speaks of an understanding between the parties that the clause was meant to operate in a particular way. I accept generally the employer’s submission that it can run its business in the manner which best suits its own purposes, but this right is fettered by a number of considerations – in this case, one of those considerations is the operation of the Certified Agreement. My recommendation to the parties is this. In the negotiation of the next Certified Agreement, the parties should reconsider the clause in question. If the content of the clause does not suit the needs of the parties, or a party, then the matter should be reconsidered. There is no need for me to add anything further. I have considered all submissions. I find that the clause should be applied in the manner in which it has prevailed until such time as the matter is revisited through the negotiation process. I also order that the applicant be back paid any Trainer’s allowance he may not have received as a consequence of the employer’s decision. I order accordingly. D.A. Swan, Deputy President. Hearing Details: 2004 26 February 9 March 6, 13 May Appearances: Mr M. Stroppiana for Australasian Meat Industry Union of Employees (Queensland Branch) for the Applicant. Mr J. Franken of Livingstones (Australia) for Golden Cockerel Pty Ltd. Released: 21 May 2004 -- 2 of 2 --