Modern awards and classification clauses

Yesterday I posted about the complex legal issues involved often in working through the area and scope provisions of a modern award. I did so my publishing an extract from a decision of the Federal Court. Today I am re-publishing another portion of the same Federal Court decision which deals with an equally challenging legal issue which often arises in employment law , namely how to apply the classification clauses of modern awards. Here is that extract. 

“the CLASSIFICATION ISSUE

147    Mr Boateng’s employment contract described him as a “knife hand/labourer”. While the classification levels do refer to labourers, the composite term does not appear in the Award. Classification is by indicative roles. The classification which applies to him is to be determined by reference to the duties attaching to his position, rather than its title: Wanneroo at 379.

The arguments

148    The applicants allege that Mr Boateng was properly classified as Meat Industry Level 5 because one of the indicative roles listed there is “Slicer” or, at least, Meat Industry Level 4 because it includes “Trimmer”.

149    “Slicer” is defined as “an employee who is required to use a knife to trim, including the removal of extraneous material, in accordance with the employer’s instructions and product specifications and to dispatch such product to other employees for further processing if required by the employer” (cl B.2.11).

150    “Trimmer” is defined as “an employee who uses a knife to remove fat or other extraneous material or foreign matter from a carcase, side, quarter or piece prior to boning or in preparation for chilling prior to boning” (cl B.2.14).

151    Dick Stone argued that “slicer” and “trimmer” were, in effect, terms of art and Mr Boateng’s work was of a different order. In particular, it claimed that a “slicer” was a skilled occupation.

152    Dick Stone contended that Mr Boateng was a Meat Industry Level 3 employee because he was involved in wrapping, weighing, pricing, packing and packaging uncooked meat. It argued that it is apparent from the classifications structure that the mere fact that an employee uses a knife in the performance of his or her work does not make him or her a “slicer’.

153    The applicants submitted that neither of these descriptions reflected the ordinary work carried out by Mr Boateng. While he wrapped, weighed, priced, packed and packaged uncooked meat, the applicants submit that these were ancillary tasks.

The classification structure in the Award

154    The classification structure set out in Schedule B of the Meat Industry Award applies to all employees covered by the Award. Clause B.2 contains definitions of certain employees: boners, carcase graders, general butchers, salespeople, sawyers, skin classers, slaughterers, slicers, smallgoods makers, trade qualified slaughterers, and trimmers. The classifications are contained in Clause B.3. There are eight levels. Employees are assigned to a particular level by reference to their trades, duties, the equipment they use, and the complexity of their work. The lowest level, attracting the lowest minimum (adult) weekly wage, is level 1, the highest is level 8 (cl 19.1).

155    The applicants did not take issue with the approach to the determination of this question in Dick Stone’s written submissions.

156    Each level must be read in the context of higher or lower levels, having regard to the descriptions at higher and lower levels of similar tasks or roles with ascending and descending degrees of complexity. Regard must be given to all of the specified skills, knowledge, and indicative tasks and roles. But as the adjective “indicative” connotes, an employee does not have to perform each of the tasks specified at the level. Rather, the tasks reflect the type and complexity of the duties. Plainly enough the higher the level, the greater the skill or complexity of the role and vice versa.

157    A Meat Industry Level 1 employee is “a person with no experience in the industry undergoing on-the-job training for an initial period of at least three months” (cl B.3.1).

158    The Award does not allow for a Meat Industry Level 2 employee in a meat processing establishment. A Meat Industry Level 2 employee is one who performs the following indicative tasks:

Meat retail establishment stream Order person delivering meat/meat products
Meat manufacturing establishment stream Linker, table hand;

Slaughterer’s assistant;

Curing section assistant required to do salting;

Washing, drying, smoking section assistant;

Retort;

Employee in lard section.

159    The employees at Levels 3, 4 and 5 are described in the Award in the following way. The parts emphasised are the parts upon which each of the parties relied.

160    In the case of a Level 3 employee:

B.3.3 Meat Industry Level 3

An employee at this level will be performing the following indicative tasks:

Meat manufacturing establishment stream Filerman;

Packing-room hand;

Slicing and/or operating scales, packing ham or bacon into cans and/or operating closing machine.

All meat industry streams Employee directly connected to the slaughter floor-tasks such as moving cattle/sheep up the race;

Employee indirectly connected with the slaughter floor-tasks such as cleaning tripe by machine/hand;

Separating and/or handling offal at the eviscerating table;

Removing head meat;

Bagging lambs;

Labourers associated with boning and slicing activities;

Labourer associated with by-product activities;

Strapping or wiring-machine operator or vacuum machine operator;

Operating Whizzard Knives;

Wrapping, weighing, pricing, packing and packaging uncooked meat;

Salter and/or pickle pumper (arterial or stab);

Chiller room/Freezer room hand;

Loading and unloading labourer;

Storing and packing labourer in or about storage works;

Drover/yard person/stockperson;

Cleaners;

Labourers involved in tanning or other treatment or processing of skins or hides;

Assistants in buffing, fluffing, curtain coat, splitting, pasting, setting out and sammying;

Machine operators/machinists in tanning or other treatment/processing of skins or hides not elsewhere classified;

Yard person in tanning and/or treatment/processing of skins or hides;

An employee performing clerical and/or office tasks such as maintenance of basic records, basic word processing, typing and filing, collating, photocopying, handling and distributing mail, delivering messages, operation of keyboard and other allied and similar equipment.

161    A Level 4 employee is described thus:

B.3.4 Meat Industry Level 4

An employee at this level will be performing the following indicative tasks:

Meat retail establishment stream Smallgoods maker in a meat retail establishment (non trade qualifications)

Cooker and/or scalder;

Cashier;

Loaders and labourers in areas such as wholesale meat markets.

Meat manufacturing establishment stream Silent-cutter operator;

Mixing machine operator;

Smallgoods seller from a vehicle;

Cutter up, guillotine operator, derinding machine operator;

Packer and/or scaler (smallgoods);

Ham & bacon curer.

Meat processing establishment stream Slaughterer (calves and beef) Class 3 (feeding cattle from race into box; tying weasands (not in shackling area); washing anus and pit; rodding weasands; removing horns; removal of fore hooves; removing heads by severing spinal cord and placing on table or chain; remove first hind foot; change first leg; remove second hind foot; change second leg; pulling tail; split paddy whack and drop; placing and removing chains on hide stripper and removing tail skin from hide; hide puller; saving sinews from forelegs; push to saw; pull from saw; trimming sides; trimming forces, trimming hinds);

Slaughterer (sheep) Class 3 (operate restrainer and stun, shackle to fixed hook, gambrel and slide; insert spreader, rod weasands, remove spreader, opening up, clear rectum gut and bladder, strip rectum gut, tie rectum gut, trimming);

Slaughterer (pigs) Class 3 (moving pigs from race to pen, shackling, pushing to scalding, dehairing, tow capping, dropping rectum, shaving, singeing, washing, trimming).

All meat industry streams Trimmer;

Using knives for cleaning or preparing meat immediately prior to packing;

Use of non-licensed product handling equipment;

Basic operation of data processing equipment in or about storage works.

Driver of motor vehicle not exceeding 6 tonne carrying capacity;

In tanning and other treatment/processing of hides or skins, the task of fleshing, buffing, fluffing, curtain coat operating, skating, shaving, glazing, spraying, hand tipping, setting out, sammying

In addition to the clerical and/or office tasks listed under Meat Industry Level 3 an employee at this level performs tasks such as more advanced word processing, typing and filing, generating simple documents, date entries, calculating functions, maintenance of records, operates more than basic telephone equipment and message taking.

162    In the case of a Level 5 employee, the applicants’ primary case:

B.3.5 Meat Industry Level 5

An employee at this level will be performing the following indicative tasks:

Meat retail establishment stream Salesperson;

Slaughterer (associated with a retail butchers shop).

Meat manufacturing establishment stream Slaughterer;

Tunnel boner.

Meat processing establishment stream Slaughterer (calves and beef) Class 2 (knocking; shackling (chaining and hoisting); pithing; tying weasands (in shackling area); cheeking; skinning heads; removing forefeet including skinning foot and saving sinew; cleaning and dropping rectum gut and bungs; mark or strip tail; remove muzzle piece; remove fore shanks; cut aitch bone; mark and saw briskets; Slaughterer (pigs) Class 2 (stunning, gambrelling).
All meat industry streams Slicer;

Sawyer;

Bench power saw operator (breaking up);

Employee directly connected to the slaughter floor-tasks such as knocking and making tallow;

Employee indirectly connected with the slaughter floor -tasks such as making tallow;

Lining up ,backing down and chopping or sawing down (pigs);

Operator of rendering machinery;

Operator of other by-product machinery;

Driver of motor vehicle exceeding 6 tonne carrying capacity;

Use of licensed product handling equipment;

Tractor driver;

Auto-truck or tow motor drivers;

More advanced operation of data processing equipment than in Meat Industry Level 4 in or about storage works;

In tanning and other treatment/processing of hides or skins, the task of currier, colour matching/mixing, chemical mixing, splitting and classing/sorting not elsewhere covered;

In addition to the clerical and or/office tasks listed in Meat Industry Levels 3 and 4, an employee at this level performs more detailed tasks such as: retrieving data; maintaining appropriate records; transcribing into records; producing more advanced documents; applying knowledge of clerical and/or office operating procedures; sorting and processing and recording from original source documents; identifying and extracting information from internal and external sources; and computer program applications commensurate with tasks.

The relevant principles

163    The question of which particular award classification applies to the work performed by an employee is determined by application of the principle of “major and substantial employment”, that is to say, the question is answered by deciding which kind of work or which duties constituted the major and substantial part of the employee’s employment: Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67–68 (Moore J); Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]–[73] (Bromberg J). Both the quantity and the quality of the duties are relevant.

What classification applied to Mr Boateng’s work?

164    In support of its claim that “slicer” was a skilled occupation, Dick Stone relied on the Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification (version 1.3), which was exhibited to Mr Marler’s first affidavit. The relevant tasks of a slicer under that definition included:

  • operating switching controls to direct and drop carcasses and meat cuts from supply rails to boning tables
  • cutting meat to separate meat, fat and tissue from around bones
  • washing, scraping and trimming foreign material and blood from meat
  • cutting sides and quarters of meat into standard meat cuts, such as rumps, flanks and shoulders, and removing internal fat, blood clots, bruises and other matter to prepare them for packing and marketing
  • operating restrainer and stunning equipment
  • severing jugular veins of stunned animals to drain blood and facilitate dressing
  • trimming and removing head meat and severing animal heads
  • slitting open, eviscerating and trimming animal carcasses
  • may slaughter livestock according to procedures required by religious customs

165    Based on the ANZSCO classification, Dick Stone asserted that “a slicer requires an Australian Qualifications Framework Certificate II or III and ANZSCO Skill Level 4”.

166    The reliance on the ANZSCO classification is problematic.

167    First, as Dick Stone’s counsel conceded in argument, there is no evidence to link the ANZSCO classifications to the Award.

168    Second, in any case the reference in submissions was selective. It omitted the statement that “[a]t least one year of relevant experience may substitute for the formal qualifications listed above”.

169    Third, the document upon which Dick Stone relied referred to a “unit group” of “meat boners and slicers, and slaughterers” who “trim and cut meat from bones, sides and carcasses, and slaughter livestock in abattoirs”. Many of the tasks mentioned there are not captured by the definition of “slicer” in the Award.

170    Fourth, the document in the exhibit is an issue released on 5 November 2019, after Mr Boateng was retrenched from his employment.

171    Fifth, the submission overlooks the purpose of the ANZSCO definitions.

172    The Australian Bureau of Statistics, which publishes the ANZSCO classification, offers the following note of caution on its website (a link to which was contained in the exhibit to Mr Marler’s affidavit):

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

173    Nothing in the text of the Award indicates that “slicer” or “trimmer” require trade qualifications. In contrast, other roles are defined by reference to service of a relevant apprenticeship or experience (see cl B.2.12 – smallgoods maker). And the Award also distinguishes between a “slaughterer” (see cl B.2.7) and a “trade qualified slaughterer” (see cl B.2.13). “Slaughterer”, for example, is defined in the following way:

Slaughterer in a meat manufacturing establishment or a meat retail establishment (other than a tradesperson slaughterer) is competent to perform slaughtering tasks in accordance with the employer’s specifications.

174    In contrast, a “trade qualified slaughterer” is defined as:

an employee who is competent to slaughter to completion all species of animal to approved standards and who has an accredited and relevant trade qualification.

175    Furthermore, the Award rates for Levels 3, 4 and 5 did not differ markedly. At the time Mr Boateng started work for Dick Stone they were $18.12, $18.57 and $18.91 per hour and $688.60, $705.70, and $718.70 per week respectively (see cl 19.1). The fact that the difference between the award rates for a Level 3 and a Level 5 employee was only 79c an hour or $30 per week tends to support the applicants’ case that a Level 5 employee undertaking the kinds of activities slicers carry out did not need to have any formal qualifications.

176    That said, I do not think that Mr Boateng was working as a slicer or trimmer or in a similar role, even though part of his job did involve the use of a knife to trim, including to remove extraneous material, in accordance with his employer’s instructions. None of the descriptions of a slicer’s work in the evidence correspond with the work Mr Boateng carried out. I accept Dick Stone’s submission that the meat Mr Boateng was cutting had already been boned and sliced. As defined in the Award, the work of a “trimmer” is carried out before boning or in preparation for chilling before boning. Mr Boateng’s work was carried out after boning. Mr Boateng’s evidence was that his main job was to prepare diced meat, that is, to cut meat into cubes. It is true that, in order to do the cutting, he first removed the fat, generally with a boning knife. But that was not the principal part of his job.

177    On the other hand, I do not consider that Mr Boateng was a Level 3 employee. I am not satisfied that the work he did more closely resembled that of “a labourer associated with boning and slicing activities” or the other indicative tasks, although he did assist others when he had finished dicing in wrapping and packing uncooked meat, an activity falling within Level 3. Contrary to Dick Stone’s submission, Mr Boateng’s evidence, which I have accepted, shows that his primary function was not weighing and packing meat. It was dicing meat. It is a distortion of that evidence to say, as Dick Stone did in its submissions, that Mr Boateng did that only “on occasions”. It seems to me that the classification that best fits the activities Mr Boateng was principally carrying out is Level 4, not because he was a trimmer or doing the work of a trimmer but because he was “using knives for … preparing meat immediately prior to packing” and “us[ing] non-licensed product handling equipment”, to wit, the dicing machine. As the applicants submitted, while he wrapped, weighed, packed and packaged uncooked meat these tasks were secondary to his primary function.

T

 

 

 

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512
(Katzmann J6 May 2022)