Federal Court of Australia

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512

ORDERS

THE COURT ORDERS THAT:

1.    Within 28 days the parties bring in short minutes of order giving effect to these reasons.

2.    The matter be listed at 9.30 am on 4 July 2022 for case management of the further hearing with respect to the outstanding matters.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Samuel Boateng is a Ghanaian immigrant. Within about three weeks of his arrival in Australia he secured employment with Dick Stone Pty Ltd (Dick Stone) in its premises or establishment at Regents Park in Sydney (Regents Park), where its head office is also located. He was employed under a written contract which required him to work 50 “ordinary work hours” a week, from 2.00 am to 11.30 am on weekdays, and from 2.00 am to 7.00 am on Saturdays, plus reasonable additional hours as requested. Throughout his employment Mr Boateng routinely worked a 50 hour week, receiving a standard rate of pay, and, from time to time, as required, worked additional hours for which he was paid overtime rates calculated on a base hourly rate derived by dividing the weekly wage by 50.

2    Dick Stone and its employees were covered by the Meat Industry Award 2010 (the Meat Industry Award or Award). Mr Boateng and his union, the Australasian Meat Industry Employees Union, (together the applicants) claim that Dick Stone breached several terms of the Award and therefore contravened s 45 of the Fair Work Act 2009 (Cth) (FW Act or Act) in multiple respects. They also claim that Dick Stone breached the National Employment Standards (NES) and therefore contravened s 44 of the FW Act. By a further amended originating application, the applicants seek declarations, compensation, and pecuniary penalties.

3    This judgment is concerned with the question of liability only.

The allegations

4    Five breaches of the Award and two of the NES are alleged to have occurred, raising a number of issues.

5    The first arises from the number of hours Mr Boateng was required to work each week (the 50 hour week issue).

6    The applicants allege that Dick Stone:

(1)    failed to pay overtime rates for hours worked in excess of 38 hours per week as required by cl 36 of the Award;

(2)    failed to pay overtime rates for work performed outside of the ordinary span of hours as required by cl 31.2(d) of the Award; and

(3)    failed to comply with s 62 of the FW Act by requiring or requesting him to work more than 38 hours a week (the first NES breach).

7    Dick Stone denies the allegation and contends that it was entitled to set off overtime entitlements against the amounts paid.

8    The second issue (the establishment issue) arises from the second alleged award breach. The Award provides for different spans of ordinary hours depending on the type of establishment in which the work is performed. Clause 31.2(d) provides that work outside this span should be paid at overtime rates. The applicants contend that the premises at Regents Park was a meat processing establishment for the purposes of the clause. Dick Stone contends that it was a meat retail establishment.

9    The third issue concerns the award classification that applied to Mr Boateng (the classification issue). The applicants allege that throughout his employment Mr Boateng was a Level 5 employee. The determination of this issue affects the rates to be applied for calculating any underpayments arising from the alleged award breaches relating to non-payment of overtime.

10    The fourth issue relates to information that the applicants claim Dick Stone did not provide or publish as required by the FW Act and the Award (the provision of information issues). The applicants allege that Dick Stone:

(1)    failed to provide Mr Boateng with a copy of the Fair Work Information Statement (FWIS);

(2)    failed to provide Mr Boateng with a copy of the NES;

(3)    failed to make available to him a copy of the Award in breach of cl 5 of the Award;

(4)    failed to post rosters in breach of cl 34.1 of the Award.

11    The fifth issue concerns superannuation payments (the superannuation issue). The applicants allege that, as a result of Dick Stone’s failure to pay “span of hours penalties” in accordance with cl 30.2 of the Award, Dick Stone underpaid superannuation and was therefore in breach of the Award.

The issues

12    The following questions arise for determination:

(1)    Was Dick Stone’s business is a “meat processing establishment” rather than a “meat retail establishment” within the meaning of those expressions in the Award?

(2)    In which classification was Mr Boateng employed?

(3)    Did Dick Stone fail to pay overtime rates in contravention of cll 36 and/or 31.2(d) of the Award?

(4)    Were the hours he was required or requested to work in excess of 38 hours per week “unreasonable” within the meaning of s 62 of the Act?

(5)    Did Dick Stone contravene s 125 of the Act by failing to give Mr Boateng a copy of the FWIS before, or as soon as practicable after, he commenced employment?

(6)    Did Dick Stone fail to make the Award and the NES available to Mr Boateng as required by cl 5 of the Award?

(7)    Did Dick Stone fail to post rosters in breach of cl 34.1 of the Award?

(8)    Was there an underpayment of superannuation?

The witnesses

13    The applicants relied on three affidavits from Mr Boateng; two from Patricia Fernandez, a Union official; and two from David Taylor, the applicants’ solicitor.

14    Mr Boateng was born in Ghana in 1992. There, he completed high school and obtained a Diploma in Marketing and a Bachelor of Science in Marketing. He migrated to Australia with his mother and three siblings on 2 March 2016.

15    Ms Fernandez is the Secretary of the NSW Branch of the Union and a former National President. She has been an employee of the Union since 1994, having previously worked for a decade as a process worker for Ingham’s, the poultry producer.

16    Dick Stone relied on affidavits from Glenn Marler, Dick Stone’s general manager and Timothy McDonald, its solicitor. Mr Marler has been the general manager of Dick Stone since 2012. From 2008 to 2012 he was employed by Dick Stone as its sales manager. He has previous experience in the wholesale and retail meat industry.

17    Mr Boateng, Ms Fernandez and Mr Marler were each required for cross-examination.

18    Unless otherwise indicated, the evidence was uncontroversial.

Background facts

Dick Stone

19    Dick Stone was established in 1887 as a small suburban butcher shop. In time, it grew into a chain of retail butchers and then into a wholesale business.

20    Dick Stone has occupied the Regents Park site since 2007. At that site it receives meat from meat manufacturers and wholesalers. From that site it supplies and processes meat to fill customer orders.

21    Dick Stone markets itself to the public as a meat wholesaler. A good deal of the meat it sells, however, is not on-sold. Mr Marler described Dick Stone as a large wholesaler and distributor of meat and meat products, supplying restaurants, cafes, hotels, licensed clubs, the Australian Defence Force, catering and foodservice companies and community based organisations such as aged care homes, schools, hospitals and child care centres. Generally speaking, its customers acquire stock only as needed in order to ensure freshness and minimise waste. Consequently, Dick Stone generally receives a customer’s order on the day or evening before the required delivery date.

22    Dick Stone sells pallet-loads of cartons of meat, individual cartons of meat, individually vacuumed-sealed pieces of meat picked from a carton, and cuts of meat which have been portion cut and repackaged by Dick Stone.

Melrina

23    At all relevant times the Regents Park site has also been occupied by a related business, Melrina Wholesale Meats Pty Ltd (Melrina). It is common ground that Melrina is a meat wholesaler. Melrina is contracted to provide certain finance and administration functions for Dick Stone and Dick Stone is contracted to deliver Melrina’s Sydney-based customer orders. Each week Dick Stone delivered for Melrina more than 39,000 kilograms of meat.

The Regents Park establishment

24    The Regents Park establishment measures approximately 3,340 square metres. Mr Marler estimated that Dick Stone used approximately 1,985 square metres (60%) and Melrina the rest. The production area measures about 246 square metres or 12.4% of Dick Stone’s share of the total land area.

25    Work is conducted in a two-storey building. On the ground floor there are loading docks, a production area, and large freezer and chiller warehouses where meat is stored. A reception area, offices and staff amenities are located on the first floor.

26    During Mr Boateng’s employment most of the Dick Stone workforce at the Regents Park establishment worked on the production floor and freezer/chiller area. Exhibited to Mr Marler’s affidavit was a list of all Dick Stone employees at Regents Park in the 2018 and 2019 financial years, taken from the payroll system.

27    Of the 49 employees, 24 worked on the production floor. Seven of these were butchers. The head butcher was Peter Bertram. He was the supervisor of the production floor employees including Mr Boateng. Three were classified as knife hand/labourers. Seven were full-time machine operators and, on average, two were casual machine operators. A Quality Assurance Manager and an Operations Manager also worked on the production floor, the former ensuring compliance with processing standards, checking the temperature of the meat and the quality of the cutting and packing. In addition there were three “Dispatch Admin” employees based in offices located on the production floor. They were responsible for allocating work sheets to the butchers and labourers, packing sheets to those doing the packing, and delivery lists to drivers. In addition to the 24 employees who worked on the production floor, there were six employees who worked in the warehouse as forklift drivers or packers and 13 truck and delivery van drivers. According to Mr Boateng the forklift drivers retrieved and dispatched meat from the carton chiller and the freezer.

28    Six and, at times, seven Dick Stone employees had offices on the first floor: Mr Marler, his second in charge Mr Talbot, a receptionist, a “profit and loss employee”, and two (sometimes three) sales managers. The area was shared with 13 Melrina employees.

29    Dick Stone purchased meat and meat products from approximately 60 different suppliers. Some of them Mr Marler referred to as “meat processors”. He said they supplied primal and sub-primal cuts of meat, being large pieces of meat cut from the forequarters and hindquarters of a carcase. These cuts of meat were vacuumed-packed and delivered to Dick Stone in cartons, either fresh or frozen.

30    Mr Marler deposed that, while most meat received from meat processors had already been boned and sliced, Dick Stone occasionally purchased whole pig carcases. In cross-examination he testified that Dick Stone purchased about 367 pig carcases a year, or seven a week. He said that these carcasses would be broken down into primal and sub-primal cuts by a Melrina employee and either on-sold by Melrina or stored in Dick Stone’s freezer and processed at a later date.

31    Mr Marler acknowledged in cross-examination that Dick Stone also purchased some lamb forequarters. He estimated that, during the period of Mr Boateng’s employment, pig carcases and lamb forequarters purchased by Dick Stone represented 1.1% of the total meat delivered by Dick Stone.

32    Mr Marler’s evidence was that meat manufacturers, which purchase meat from abattoirs and wholesalers and further process it to create new products, supplied Dick Stone with various items including sausages, hamburgers, salami, crumbed schnitzel, pork ribs and lamb shanks. These items would be delivered to Dick Stone in cartons. He said that meat wholesalers supplied Dick Stone with the same products as meat processors but Dick Stone only purchases products from wholesalers when it is necessary to cover product shortfalls or delays from its other suppliers. But it was clear that some of the types of products Mr Marler said were supplied to it by meat manufacturers were also made by Dick Stone at the Regents Park establishment. They included sausages, hamburgers, and crumbed schnitzel. Mr Boateng himself worked on the manufacture of sausages and witnessed others manufacturing sausages, hamburgers, and crumbed schnitzels, as well as lamb kofta. His evidence also established that Dick Stone manufactured corned beef, corned eye round and occasionally marinated products using honey and soy.

33    From the Regents Park establishment Dick Stone sold a range of meat products to its customers. These included primal cuts, such as beef rump and lamb rack; portioned cuts, such as a beef fillet steak and pork belly; processed meats, such as diced chuck or mince; and offal, including beef cheeks, kidneys and tongues. In addition, it sold whole spit roast lambs, suckling pigs, and birds which it on-sold without any intervention. According to Dick Stone’s product booklet, which was annexed to Mr Marler’s first affidavit, it also sold veal, poultry, game and exotic meats, smallgoods and cooked and cured products.

34    Dick Stone sold meat to approximately 900 customers between July 2016 and June 2019. Most of the customers operated in the hospitality and catering industries. Mr Marler deposed that customer orders were often varied, as was the form of packaging:

In accordance with each customer order, Dick Stone sells pallets of cartons of meat, individual cartons of meat, individually vacuumed sealed pieces of meat picked from a carton, or cuts of meat which have been portion cut and repackaged by Dick Stone.

Where Dick Stone sells cartons of meat to customers, Dick Stone provides the meat in the original branded cartons which they were packed into at the meat processing company. There is no repackaging, or re-packing of the cartons received from suppliers by Dick Stone employees.

Dick Stone also sells meat by the kilogram or units, in which case, the required quantity of meat is repackaged from the cartons received by the meat processing facility by Dick Stone in accordance with the customer order. The meat is not cut up by Dick Stone. It is re-sold in the same form as received from the suppliers.

Customers may also request that their meat be portioned by Dick Stone, for example, cut into steaks, minced or diced, prior to delivery…

Customer orders will often include a mix of meat such as primal cuts, whole chickens or bacon, which is on sold directly by Dick Stone, as well as some portioned meat by quantity or kilogram, or mince or cut steaks prepared in accordance with each customer order at the premises.

35    Most of the meat delivered to customers was in Dick Stone packaging. The cartons delivered on behalf of Melrina, however, were in packages supplied by Melrina. Over the three years during which Mr Boateng was employed, Dick Stone delivered around 1,600 cartons per week on behalf of Melrina.

36    Mr Marler deposed that Dick Stone’s profit margins on its sales of cut meat were “generally the same as, or slightly less than” its profit margins for uncut whole primal or carton meats. While there was no premium charged for cutting, mincing or dicing meat, Mr Marler stated that the cost per kilogram of these meats was higher than the cost per kilogram of uncut meats “to compensate for yield loss in cutting the meat in accordance with customer orders”. He said that the average yield loss for portioning a whole rump into 300 g portioned steaks, for example, was 30%. And the price per kilogram would be marked up to take this into account. Mr Marler accepted, however, that the off-cuts would be used to make other products, such as sausages and mince meat, albeit at a reduced value.

Work in the production area

37    Mr Marler disagreed with aspects of Mr Boateng’s description of the Regents Park establishment but he did not disagree with Mr Boateng’s description of the work carried out in the production area. This was the area where larger cuts of meat were cut, diced, minced, and turned into sausages, burger patties, and so forth before being packaged in accordance with customer orders.

38    Mr Boateng described 10 areas within the production area where particular kinds of work were performed.

39    In work area 1 there was a large vacuum packing machine, described elsewhere as the “cryo-vac machine”, and benches for breaking down whole carcases. A bone saw was also provided to assist with these tasks. The benches were used by workers employed by Melrina until around 2018 when Melrina ceased processing work.

40    Work area 2 contained a mincing machine and a sausage-making machine. Mr Boateng occasionally assisted at this station. To prepare sausages, extraneous meat pieces or other meat cuts would be tipped into the mincing machine and mixed with seasoning. The mince would then be fed into the sausage-making machine and pushed into casings. Burger patties were also prepared in this work area using a similar process.

41    Work area 3 contained three benches, two meat saws, and an “i-CUT machine”. The meat saws were used to prepare T-bone steaks, lamb chops, osso buco (marrow bone), shanks, beef and pork ribs, and other cuts of meat in which there was a need to cut through bone. The i-CUT machine was used to cut larger pieces of meat into steaks. Mr Boateng occasionally assisted the butchers in this section. He recalled that four or five butchers worked there.

42    Various activities were undertaken in work area 4. There was a mincing machine, similar to the one used by the butchers in work area 2 in the preparation of sausages and burger patties. There was also a “blanch” machine which was used to prepare partially cooked meats, particularly sausages. And there was a skinning machine used by the butchers to skin portions of animals.

43    Mr Boateng generally worked in work area 5 where there was a large mincing machine and the dicing machine. The mincing machine, which was operated by another employee, was capable of mincing up to 400 kg of meat at any time.

44    In work area 6 there was a bench to cut and prepare meat, which was normally used by butchers and occasionally also by Mr Boateng.

45    Work area 7 contained several benches for meat preparation. In this area Mr Boateng assisted a butcher two or three times a week to prepare lamb cutlets, although this was disputed by Mr Marler (as discussed below at [63]). When he performed this work, which was the same work he observed the butcher doing, he took larger racks of lamb, trimmed any excess fat and tissue, and cut them to the requisite thickness using a knife.

46    Work area 8 was a labelling section. Three people worked there. Two of them would take the processed meat from the other work areas, weigh it, and package it into 1 or 2 kg bags using a packaging machine. The third would place labels on the packages and move them to the tenth work area.

47    Orders from internet meal provider companies were packaged in work area 9. Mr Boateng worked there with four others when he finished his other tasks. In this area a machine was used to dispense small quantities of processed meats, such as mince, into packages. Other types of meat, such as steaks, sausages and burger patties, were packaged by hand. The packages would be placed on a conveyor belt, sealed by a machine, inspected by another worker, weighed, labelled, transferred onto pallets, and placed in the chiller ready for delivery.

48    Work area 10 was the packing section. Four people worked there. Employees from work areas 8 and 9 put the packaged meat onto shelves in this area, after which the packages would be placed in boxes, sealed, labelled, stacked onto pallets, and taken to the dispatch area where they were loaded into vehicles for delivery. While some products were dispatched in the same packaging in which they arrived at the Regents Park premises, other products were packed into Dick Stone packaging.

Mr Boateng comes to work for Dick Stone

49    Shortly after his arrival in Australia, Mr Boateng spoke with a man from the Ghanaian community about employment opportunities in Australia. The man, Nana Yaw, told him that jobs were available at Dick Stone where he was working. Mr Boateng said he was interested. About a week later, Mr Yaw informed Mr Boateng that his boss had asked Mr Boateng to come in the following Monday. He told him that the “[t]he job starts at 2.00 am”.

50    On 21 March 2016 Mr Boateng attended the Regents Park premises with Mr Yaw, arriving at about 1.45 am. He was introduced to Peter Bertram, Mr Yaw’s supervisor. There was no discussion about terms, conditions, hours of work, or pay. Mr Yaw took him to the change room where he provided him with a pair of gumboots and a coat and then to the box room where he showed him how to make cardboard boxes and stack them on pallets for use by the packers. After stacking some boxes on pallets, Mr Boateng enquired of Mr Bertram about the work he should do next and was directed to assist a butcher to unpack meat from boxes before processing. Mr Bertram also showed him how to do other tasks including using the “i-CUT” machine. A fellow worker, Michael, showed him how to use the “cryo-vac” machine.

51    The next day, Mr Boateng was given an “employment form” and a bundle of documents entitled “Employment Commencement Pack”, which included a letter of offer. Both documents were dated 22 March 2016. The employment form was an application for employment. The position for which he applied and which he was offered was that of “knife hand/labourer”. The letter of offer recorded that his employment had commenced the previous day. It also recorded the following “general conditions” of employment regarding hours of work:

Hours:    The ordinary work hours for a full time week are 50 hours per week. Your ordinary work hours will initially be within the range 2 am to 11:30 am Monday to Friday, 2 am to 7 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.

Additional Hours:    There is the expectation that when requested by the Company employees shall work a reasonable amount of additional hours.

52    Curiously, neither document mentioned what he would be paid. Nor did it mention any entitlement to overtime or refer to the Award. Mr Boateng gave unchallenged evidence that he was not provided with any information about his rate of pay before he started working for Dick Stone and the only information he received thereafter was what was included in his pay slips.

53    Mr Boateng signed the documents that night.

Mr Boateng’s description of his work at Dick Stone

54    During his first week at Dick Stone, Mr Boateng spent most of his time observing and assisting Michael, who trained him how to prepare meat for dicing, use the dicing machines, and hand dice meat. For the purpose of hand dicing, Mr Boateng was provided with a boning knife. He was also issued with several other knives during his employment — two boning knives, two steak knives and a knife for opening boxes — which he said were the same as the knives issued to butchers. He did not attend any formal training courses.

55    Mr Boateng was required to be on the production floor ready to work at 1.55 am each weekday and Saturday. His first task was to collect a “picking slip”, which was a document recording customer orders specifying the weight and cuts of meat required to be prepared. He would also receive oral directions from the Operations Manager to prepare meat in accordance with orders from internet meal provider companies which were not recorded in the picking slips. Mr Boateng would then prepare meat in accordance with the orders and directions before attending to other tasks such as cleaning his workstation, assisting the butchers to “cryo-vac” meat bones, assisting other employees to pack the orders from the internet meal provider companies, and preparing lamb cutlets. He usually did not finish dicing meat until about 9 or 10 am.

56    Dicing meat was his “main job”. Some meat was required to be diced by hand and some could be diced by machine. For the majority of his employment, Dick Stone used three dicing machines. Mr Boateng said that these machines “could not do much of the work required” as they could not dice any meat into 3 cm portions or above and could not do “Cantonese-style” dicing, dice chuck steak, or other fatty cuts. He added that the machines diced 2 cm portions “badly”. For this reason, he explained, Mr Bertram instructed him to do the 2 cm dicing by hand. He said he did “almost all” of the 2 cm and 3 cm and all of the 4 cm and 5 cm dicing by hand.

57    In June or July 2019, Dick Stone purchased an advanced dicing machine manufactured by Treif, known as the “Argon machine”. The Argon machine could complete “almost all dicing work”, except 4 cm and 5 cm portions. Mr Boateng estimated that, before the purchase of the Argon machine, 60 percent of the dicing he did was by hand, whereas after its purchase the percentage dropped to 10 to 15 percent.

58    The meat Mr Boateng diced generally consisted of primal and sub-primal cuts weighing between 6 and 8 kg that Dick Stone received in vacuum-sealed packaging. Mr Boateng would collect these cuts from a chiller, take them out of the packaging, and prepare them for dicing by removing excess fat and tissue using a boning knife. Meat needed to be cut into large sections and cleaned before it was put into the machine. Meat to be diced by hand would generally be cut first into three or four large sections using a steak knife before being diced to the correct size. Mr Boateng used pieces of laminated paper with templates of various sizes and styles of dice to assist him. Hand dicing took much longer to complete than machine dicing. He explained:

By way of example, I estimate that where it would take 20 minutes to collect, prepare and dice the meat to a certain style using the machine it would take 40-50 minutes to do the same process by hand. The difference became greater the larger the quantity of meat.

59    He stated that 2 cm cuts were the most common size ordered and that it would take him approximately 10 minutes to dice about 25 kg of beef chuck to this size. That involved taking out the pieces, examining them, and cutting off extraneous tissue or large pieces of fat by hand using his knives. Each box usually contained two or three pieces of meat, each weighing 8 to12 kg. Then he would cut the larger pieces into smaller ones of 4 to 5 kg. But some cuts, such as those requiring bone, skin or other tissue to be removed, required more preparation. For example, some cuts such as lamb legs, often had bone that he needed to cut away and cuts of pork often had skin or other tissue attached that he also had to cut away before dicing.

60    After he had diced the meat to size, Mr Boateng would group together orders of the same size and place them into 30 or 40 kg tubs. He would also weigh the orders to ensure he had prepared the correct amounts. He would then label the tubs with stickers and move the tubs to the labelling section where the meat would be packaged for delivery.

61    Once or twice a week, between late 2017 and September 2019, Mr Boateng witnessed the delivery to Dick Stone of whole carcases and full sides of beef as well as pig carcases. He assisted the butchers to prepare or break down the carcases and seal the meat in cryo-vac bags. Several CCTV video clips of work undertaken in the production area were annexed to Mr Boateng’s third affidavit. One of them appeared to show Dick Stone workers breaking down a carcase using a band saw.

Mr Marler’s description of Mr Boateng’s work

62    Mr Marler deposed that Mr Boateng performed the following tasks on a daily basis: setting up his workstation and equipment; collecting stock from the chillers; opening boxes and vacuumed meat for dicing; removing excess fat from cuts of meat and cutting large pieces of meat into smaller portions to fit into the chamber of the dicing machine; operating the dicing and mincing machines; wrapping, weighing, packing and packaging uncooked meat; removing rubbish; cleaning down his workstation and equipment; and performing other general labouring duties as required.

63    Mr Marler described the knife work Mr Boateng performed as “rudimentary and unskilled”. He said Mr Boateng would merely cut primal cuts weighing approximately 6–8 kg into two or three pieces of about 2–3 kg each and feed these pieces into the dicing machine. He said he was not required to handle any hindquarters or forequarters of meat or remove bones or extremities from a carcase, nor was he required to remove skin or other tissue or prepare lamb cutlets. He deposed that the CCTV footage showing workers cutting up a carcase and hand-dicing pork belly were “not typical Dick Stone work processes”. He accepted that Mr Boateng would dice meat by hand into 5 or 6 cm cubes, but only occasionally, and deposed that he did not hand dice cubes of between 1 and 4 cm unless a customer requested it. Mr Marler said that the “vast majority” of Dick Stone customers were satisfied with the meat cut by the dicing machine, but in cross-examination he testified that it was “quite common” for customers to request that meat be diced by hand.

64    Mr Marler testified that his evidence regarding the amount of cutting Mr Boateng was required to do was effectively based on his observations of the production floor and his review of the picking slips but confessed to only spending between 30 minutes to an hour on the production floor each day and could not say how often Mr Bertram required Mr Boateng to dice meat by hand.

65    To the extent that Mr Marler’s evidence differed from Mr Boateng’s regarding the nature of his role and tasks he performed, including how often he performed them, I prefer Mr Boateng’s evidence. After all, Mr Boateng was doing the work. His evidence was credible. Mr Marler was not his direct supervisor. Mr Boateng’s evidence was that he worked in accordance with Mr Bertram’s instructions and no evidence was adduced from Mr Bertram to contradict him. Moreover, Mr Marler’s evidence was in the nature of an opinion or assumption (“he would not have been regularly allocated to assist in preparing lamb cutlets …”) and cross-examination revealed that he had overstated aspects of his evidence in chief.

Mr Boateng’s pay

66    Mr Boateng was unaware of his pay rate until he received his first pay slip. His initial rate was $20.70 per hour. He did not know that the pay rate was intended to incorporate any other entitlement or loading, or that his pay could be offset against any other entitlements under law. Nor did he agree to it. In cross-examination, however, he accepted that at a meeting of production employees he attended, which Mr Marler’s evidence discloses took place on either 28 February or 1 March 2019, Mr Marler said that Dick Stone workers were paid a “loaded rate” for working 50 hours per week and that he understood that Mr Marler was referring to a rate which included overtime payments.

Mr Boateng’s working hours

67    Mr Boateng deposed that there was never any discussion regarding the number of hours he would be required to work at Dick Stone. He was simply told that he was required to be on the production floor by 1.55 am and that he would finish at 11.30 am on weekdays and would start at 2 am on Saturday and finish at 7 am.

68    He said he was given no choice but to work 50 hours a week. Had he been given the option of working only 38 hours a week when he commenced, he claimed that he would have taken it. His explanation, however, was not confined to the time he started.

I found 50 hours per week to be very difficult, particularly as I needed to get up at about midnight every day. I found the long hours damaging on my relationship with my family and my wife. She is also from Ghana and we knew each other there and then restarted our relationship in Australia. We had our first child, Nana Kofi Nhyiraba Sarpong on 1 December 2017. The long work hours, particularly only having one day a week off from work was very difficult at the time I was married and with a newborn child.

69    In the meeting with production employees on 28 February or 1 March 2019, Mr Marler said that “[i]f anybody wants to work 38 hours they should come and see us to discuss”. Afraid of becoming “more of a target”, Mr Boateng did not approach Mr Marler and the offer was never made again. He acknowledged in cross-examination, however, that he had no basis for believing that he would be subject to any unfavourable treatment if he had asked to work fewer hours. He deposed that, before this time, there was no capacity for him to express concerns about his ordinary hours, although he acknowledged in cross-examination that there was a meeting in around December 2017 when Mr Marler invited him and other Dick Stone workers to express an interest in reducing their hours to avoid potential redundancies for Melrina employees and he did not take up the offer.

70    Mr Marler deposed that Mr Boateng worked a regular roster of 50 hours, never expressed concern about working these hours, and never advised that he had any personal or family commitments that were being adversely affected by his working hours. He said he believed Dick Stone employees preferred to work a 50 hour week because they “value the remuneration associated with working the overtime”, but he had always sought to accommodate any requests by employees to reduce their working hours.

The intervention of the Union

71    In late November 2017 the Union wrote to Dick Stone raising concerns about underpayment of several Award entitlements, including with respect to unreasonable working hours and overtime. After an exchange of correspondence things went quiet for about 11 months until 2 November 2018 when the Union again raised concerns with Dick Stone about alleged underpayments. The Union proposed that its concerns be resolved through the dispute resolution process set out in cl 10 of the Award. On 21 December 2018 the Union informed Dick Stone that it had been appointed by Mr Boateng as his representative for the purpose of the dispute and that Mr Boateng believed that he was employed in a meat manufacturing establishment performing the duties of a Level 5 employee. Dick Stone took issue with both propositions and asserted that he had been classified correctly under the Award and paid accordingly.

72    On 7 February 2019 the Union served a right of entry notice based on its suspected contraventions of the Award. On 13 February 2019 it wrote to Dick Stone now claiming that the Regents Park establishment was a meat processing establishment.

73    On or about 6 March 2019 the Union filed an application with the Fair Work Commission for it to deal with the dispute about the nature of the establishment and Mr Boateng’s correct classification. That proceeding came to an end when Dick Stone refused to agree to arbitration.

The end of Mr Boateng’s employment

74    In late May 2019, Mr Bertram told Mr Boateng that Mr Marler did not want him to do the dicing or use knives anymore. But a week or two later he was told to go back to the dicing section because they were short-staffed and he continued dicing work until he was advised on 6 September 2019 that his position was being made redundant. His employment was terminated on 10 September 2019. Although Mr Boateng believed he was the only employee who was retrenched at this time, Mr Marler deposed (and I accept) that he was one of four.

The establishment issue

75    The first issue is whether Regents Park was a “meat processing establishment” rather than a “meat retail establishment” within the meaning of those expressions in the Award.

The Meat Industry Award

76    The Meat Industry Award covers employers throughout Australia and their employees in certain classifications in the meat industry (cl 4.1). The “meat industry” is defined in cl 4.2 to include “meat manufacturing establishments”; “meat processing establishments”; “meat retail establishments”; and certain activities carried out “as an ancillary part of the business of that establishment” by an employer engaged in any of these establishments or by a related employer. Those activities are the handling and further processing of all by-products of the establishments referred to above and distribution, transport and storage operations for the purpose of transport or storage meat or meat products.

77    Each of the three types of establishment is defined in cl 3.1 of the Award.

78    “Meat manufacturing establishment” means:

an establishment wholly or predominately concerned with the manufacturing or processing of fresh meat into any form of edible manufactured or processed meat, meat products, smallgoods, ham, bacon, or similar products in which meat is a substantial ingredient, including any related activities such as retail and/or wholesale sales, and killing, dressing, boning, slicing, preparation and/or packing of fresh meat, where such activities are conducted at any place as an ancillary part of the manufacturing or processing business.

79    “Meat processing establishment” means:

an establishment wholly or predominately concerned with any one or more of the activities of killing, dressing, boning, slicing, preparation, and/or packing of fresh meat and will include any related activities conducted at any place as an ancillary part of such business, such as manufacturing or processing of meat, the treatment and processing of skins or hides, rendering, processing of by-products and/or retail and/or wholesale sales.

80    “Meat retail establishment” means:

an establishment wholly or predominately concerned with the retail and/or wholesale sale of fresh meat and/or meat products, including establishments where meat and/or meat products including ham and smallgoods and similar products are processed and/or manufactured as an ancillary part of the retail and/or wholesale business.

81    The terms “fresh meat” and “meat” are also defined in cl 3.1.

82    “Fresh meat” means:

meat that has not been cooked, pickled, cured or otherwise processed from the natural state, other than by chilling or freezing[.]

83    “Meat” means:

cattle, calves, buffalo, horses, mules, donkeys, sheep, lambs, goats, pigs, camels, deer, kangaroos, emus, ostriches or marine reptiles, and any flesh or other organic products derived from any of them (excluding milk)[.]

84    Although the Award was varied from time to time during the period of Mr Boateng’s employment, the variations are immaterial for present purposes.

The relevant principles

85    The parties agreed on the principles that apply to the interpretation of an award. They were discussed at length by Wheelahan J in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]–[130] and, although the orders his Honour made were set aside on appeal, his Honour’s exposition of the principles was not challenged: King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 at [40]–[43] (Collier, Katzmann and Jackson JJ). In short, as with any industrial instrument, the resolution of any dispute about the meaning of a term or phrase in an award turns on the language used in it, understood in the light of its industrial context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). That context includes the history. Narrow or pedantic approaches to interpretation are misplaced: Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J). Too much should not be made of infelicitous expressions so that “fractured and illogical prose may be met by a generous and liberal approach to construction”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [57] (French J).

86    Reference to the history may reveal that certain expressions have been interpreted before, whether by industrial tribunals or courts, and when they appear in the same or a similar context in later instruments may then be taken to have an accepted meaning: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517–8 (Burchett J); King at [127] (Wheelahan J). But there are limits, as the Full Court observed in King at [43], referencing the primary judge at [128]–[129]:

[T]he texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non-compliance with an award can expose a person to pecuniary penalties: see Wanneroo at 380.

How should the Award be interpreted?

87    Starting with the text, the Award identifies three types of meat establishments. It contemplates that manufacturing, processing and selling can occur in all three and that whether an establishment comes within a particular definition depends on which of the activities described in each definition is “wholly or predominately” its concern. The answer in any particular case, as Dick Stone submitted, requires a qualitative and/or quantitative assessment of the establishment’s concerns and that “concern” in this context directs attention to the nature of the business or commercial activities carried out in the establishment. Thus, the answer to the question of whether an establishment is a “meat processing” or “meat retail” establishment does not turn on the nature of the company’s business, but on the nature of the relevant establishment.

88    Like many words, the meaning of the word “establishment” will vary, depending on the context in which it is used. Regardless, “establishment” is not a synonym for “business” or “enterprise”. Relevantly, in its ordinary meaning it refers to “a place of business … and everything connected with it (as furniture, fixtures, grounds, employees)”: Macquarie Dictionary (8th ed, Macquarie, 2020).

89    In the context in which the word appears in the Meat Industry Award, it was common ground that it means “place of business”. It includes a shop, a factory, a plant or facility or a combination of them and other buildings. More than one business may be carried out in an establishment. Equally, two or more establishments may operate in adjacent premises or co-exist in the one premises: Meatpak Pty Ltd t/as Holco Fine Meat Supplies v Moran [2005] FCAFC 111; 145 IR 248 at [18].

90    None of these matters was controversial.

91    What was controversial was the extent to which any assistance can be obtained from the history of the Award.

92    In its opening submissions Dick Stone argued that it was clear that the Australian Industrial Relations Commission (AIRC) did not intend, as part of the award modernisation process, to disturb the existing coverage of meat manufacturing establishment, meat processing establishment and meat retail establishment in different awards before rationalising and consolidating the three pre-modern awards covering each type of establishment in making the Award. In its closing submissions, the argument was put a little differently. There, Dick Stone contended that it was “clear enough” that the AIRC sought to maintain the pre-existing award structure to reflect the market segmentation.

93    It is by no means clear that this was the AIRC’s intention. Indeed, Dick Stone’s submission cannot be accepted.

94    For a start, not all these terms appear in the three pre-modern federal awards. Furthermore, as the applicants pointed out, the definitions in the Meat Industry Award do not incorporate the definitions in the predecessor awards. Certainly, the coverage definitions in the three previous federal awards are different and distinct from the definitions in the Meat Industry Award.

95    The Meat Industry Award replaced three federal awards. Those three awards were the Federal Meat Industry (Processing) Award 2000 (FMP Award), the Federal Meat Industry (Retail and Wholesale) Award 2000 (R and W Award), and the Federal Meat Industry (Smallgoods) Award 2000 (Smallgoods Award). The Meat Industry Award also supplanted some 25 state awards.

96    The coverage clause in the FMP Award (cl 5.2) provided:

5.2.1    This award will apply in meat processing establishments, as defined, in respect to employees employed by the employers bound and respondent to this award for whom rates of pay and general conditions of employment are prescribed herein.

5.2.2    At the time of making this award, where an employer was bound by a State award, then this award will not apply, regardless of whether such employers were members of the National Meat Association of Australia or not.

97    “Meat processing establishment” in the FMP Award was defined in the following way (in cl 3.4):

Meat processing establishment shall include an abattoir, boning room or pre-packing operation but does not include a retail or country butcher shop, smallgoods factory or ham and bacon factory.

98    The coverage clause in the R and W Award (cl 5.2) provided:

This award will apply in respect of all employees employed in retail meat establishments, wholesalers, domestic and/or wholesale meat markets and abattoirs associated with a butcher shop and classifications contained in the award which are incidental to the principal business.

Clause 3.20 of that award read:

Wholesale or wholesaler are to be given their ordinary meaning and includes establishments that supply meat products for hospitality and catering outlets.

99    The coverage clause in the Smallgoods Award (also cl 5.2) provided:

5.2.1    This award applies in respect of all employees in establishments whose principal business is the smallgoods manufacturing.

5.2.2    At the date of making this award, where an employer was bound by a state award then this award will not apply, regardless of whether such employers are members of the National Meat Association of Australia, or not.

100    Dick Stone submitted that the Commission implicitly accepted submissions made by the Australian Meat Industry Council (AMIC), the peak employer body in the industry, and implicitly rejected the Union’s alternative formulation based on physical activities. That submission cannot be accepted either.

101    It is true that in its first exposure draft the Commission adopted definitions for each establishment type based on the AIMC’s submission. Those definitions differed from the three federal awards by referring to activities but their focus was on the business of the employer. The AIMC’s proposal, largely incorporated in the first exposure draft, included the following definitions of “meat processing establishment” and “meat retail establishment”:

Meat processing establishment means an establishment in which the sole or predominant business is any one or more of the activities of killing, dressing, boning, slicing, preparation and/or packing of fresh meat and shall include any related activities conducted at any place as an ancillary part of such business, such as manufacturing or processing of meat, the treatment and processing of skins or hides, rendering, processing of by-products and/or retail and/or wholesale sales.

Meat retail establishment means an establishment in which the sole or predominant business is the retail and/or wholesale of fresh meat and/or meat products, including establishments where meat and/or meat products including ham and smallgoods and similar products are processed and/or manufactured as an ancillary part of the retail and/or wholesale business.

(Emphasis added.)

102    In its submissions to the Commission in response to the first exposure draft, the Union raised concerns that the proposed definitions were potentially ambiguous:

The AMIEU appreciates that the definition is referring to the “predominant business” of the “establishment” rather than that of the overall “business,” but submits that there is clearly scope for ambiguity. The AMIEU submits that it would be preferable to replace the word “business” with a more neutral term, such as “activity”...

103    In response the AMIC adhered to its original proposal, contending that it was based on the reasoning in Holco. It submitted:

For this reason, the proposed alteration of the expression “sole or predominant business” to “sole or predominant activity” in the definition of meat manufacturing establishment is neither useful nor sensible. In many cases, the sole or predominant activity will also be characteristic of the business, however in other circumstances, such as the Holco case itself, the predominant business of the enterprise (wholesaling of meat) was arguably not reflected in the degree of physical activity on the site due to some labour-intensive processing activities being undertaken as an ancillary part of the larger business.

Use of the word business will allow a global and sensible view to be taken of the nature of the operation, and is more likely to be consistent with existing demarcations under the pre-reform awards.

104    In the Award Modernisation decision [2019] AIRCFB 826 at [164] the Full Bench of the AIRC referred to this controversy:

The most significant area of controversy between AMIC and the AMIEU relates to the definitions of the various sectors of the industry. The issues arise from the decision of the Full Court of the Federal Court of Australia in Meatpak Pty Ltd t/a Holco Rine Meat Supplies v Moran. That decision dealt with issues of possible overlap between awards covering different sections of the industry. The Full Court resolved the matter by adopting a “dominant nature of the establishment” test. The exposure draft adopted the wording proposed by AMIC which used the phrase “the sole or predominant business”. It was submitted by AMIC that this best reflected the decision of the Court.

105    At [165] it referred to the Union’s submission and proposal. At [166] it resolved the controversy:

We have decided to adopt a formulation which refers to an establishment wholly or predominantly concerned with a particular sector of the industry.

106    How this conclusion can sensibly be read as an implicit adoption of the AMIC’s submission and a rejection of the Union’s frankly escapes me.

107    Contrary to Dick Stone’s submission, the Commission did not eschew an activities-based approach. The text upon which the Commission settled indicates that meat processing establishment, meat retail establishment and meat manufacturing establishment are each defined, not by the nature of the employer’s business but by the activities performed within them. The history also indicates that, rather than accepting the submissions of the AMIC and rejecting the submissions of the Union, the Commission took on board the Union’s concerns.

108    Dick Stone also submitted that the AIRC intended to incorporate the dominant purpose test developed in Holco. Relying on Holco, Dick Stone submitted that the nature of the establishment depends on the source of the profits of the business.

109    Up to a point the first part of this submission should be accepted but not the second.

110    Holco was concerned with the meaning of “establishment” in the context of the FMP Award and the R and W Award. Seven boners and slicers, who were employed in the “boning area” of a plant adjacent to a wholesale market operated by their employer, claimed to have been underpaid annual leave on the basis that their employment was governed by the FMP Award, cl 5.2.1 of which relevantly provided that it would apply in “meat processing establishment[s]”, as defined. The employer claimed that the FMP Award did not apply because a “meat processing establishment” for the purposes of the FMP Award referred to a “stand-alone” establishment and, in the case of a boning room, there had to be an establishment constituted only by a boning room. It argued that the R and W Award applied because the employees were employed in a wholesaler or wholesale meat establishment (see cl 5.2).

111    At first instance an industrial magistrate held that the FMP Award applied to the relevant employees because they were working in a boning room, albeit that this was a discrete area of a larger room, known as the production area, which also included “the food service area”. Her Honour observed that there was nothing unusual about different awards applying in the one establishment.

112    The Full Court (Wilcox, Spender and Madgwick JJ) accepted that there was a possibility that a single establishment might come within the ordinary meaning of the coverage clauses of both awards (at [15]), such as a stand-alone boning room where the employer owned and sold by wholesale 90% of the output and contract boning for other meat traders the remaining 10%. In ordinary language, the Court held, such an establishment might well be both a meat processing establishment and a wholesaler. But the Court inferred that the two awards were not intended to overlap in a single establishment (at [13]) and that it was evident from the terms of the R and W Award and “industry parlance” that “boning areas may be part of wholesale establishments” and not establishments in themselves (at [14]). The Full Court went on to hold (at [17]) that a “dominant nature of the establishment test” should be applied, if possible, to give effect to the “inferred purposes” of the parties and the Commission. In determining the dominant nature of the establishment, the Full Court held (at [18]) that it was necessary for the Industrial Magistrate to take into account “all surrounding circumstances”. In particular, the Court explained, the Industrial Magistrate needed to consider first, the exact nature of the establishment in question, noting the possibility that in that case there might have been two or more establishments in adjacent premises or parts of the premises; and second, the relevant attributes of the establishment, which it characterised as “the mainspring or dominant means whereby the employer derived (or intended to derive) a profit from the operations”. With respect to the second matter, the Full Court explained:

For example, were boning and slicing and the other meat processes the essential value-adding mechanisms or were they mere enhancements of a concern fundamentally focussed on buying and selling meat? It is the objective attributes of the establishment, rather than self-serving ex post facto assertions about them, which must be examined.

113    The Court also observed (at [19]) that an understanding of the general context of the Australian meat industry might indicate that the phrase “meat processing” within the term “meat processing establishments” in the FMP Award should be given a different meaning from “its apparently plain one”. That meaning, I gather from what the Court said at [16], was “preparing meat into a marketable form by a systematic series of actions performed by persons and/or equipment”.

114    Since the Industrial Magistrate did not address “the fundamental question” of the dominant nature of the establishment, the Full Court allowed the employer’s appeal and remitted the matter for further hearing and determination to the Industrial Relations Court of South Australia.

115    The definitions in the Meat Industry Award, however, are not the same as those in the FMP Award. And they do not use the same formulation as the Full Court did in Holco. The relevant definitions in the Award turn on the whole or predominant concern of the particular establishment. In its ordinary meaning, “predominant” means having “ascendancy, power, authority, or influence over others”. It also means “prevailing”. “Dominant” can mean “ruling; governing; controlling; [or] most influential”. But it can also mean “main; major; [or] chief”. See Macquarie Dictionary. Whatever differences in meaning or nuance the two adjectives may have, however, the extrinsic material makes it clear that the language used in the Meat Industry Award was intended to introduce a similar test to that which was developed in Holco.

116    Contrary to the approach taken by Dick Stone, however, the Full Court did not say that the dominant nature of the establishment is exclusively determined by reference to the dominant means by which the employer derives a profit from the business conducted in the establishment. While that was unquestionably a significant factor, said that all the surrounding circumstances need to be considered. In any case, the context in Holco was very different. The question of profit was the method used by the Full Court in Holco to work out the dominant attributes of the establishment in the absence of a clause which defined the nature of the establishment by reference to the activities performed in it.

117    In the context of the Meat Industry Award, the characterisation of the establishment is to be determined first, by identifying the nature of the establishment by reference to the activities undertaken there and second, by assessing which of those activities is the establishment’s whole or predominant concern. The latter requires consideration of all surrounding circumstances, including physical nature of the premises, the roles activities carried out by the employees who work in it and the dominant means by which the employer derives (or seeks to derive) a profit from the enterprise conducted there.

Were the Regents Park premises a “meat processing” or “meat retail” establishment?

118    It is not in dispute that boning, slicing, preparation and packing of fresh meat took place in Dick Stone’s Regent Park premises. Nor is it in dispute that meat and meat products are sold by Dick Stone from those premises. It is therefore readily apparent that the answer to the question turns on which was the predominant concern. Naturally enough Mr Boateng’s evidence was focused on the activities in which he participated and on what he saw others do. For obvious reasons that evidence has its limitations.

119    Ms Fernandez also gave expert evidence on this question. Her expertise was not challenged. As I mentioned earlier, Ms Fernandez is the NSW Branch Secretary of the Union. She is also its former National President. She has been employed by the Union since 1994 and previously worked in the meat industry for 10 years.

120    Ms Fernandez deposed that, historically, there was a clear demarcation between meat processing, manufacturing and wholesaling. Abattoirs slaughtered animals, processed their carcases and divided them into quarters or “primal cuts”. That meat was then sold by wholesalers to retail butchers, restaurants and meat manufacturers. The wholesalers, she said, did “very little, if any, processing [work]”. But Ms Fernandez also said that the role of wholesalers fundamentally changed following the introduction of the Goods and Services Tax, which she attributed to the fact that restaurants no longer received a tax advantage from purchasing meat from wholesalers. Further changes included greater efficiency in selling meat; increased automation in meat processing and manufacturing; increased amounts and types of premade meals sold by supermarkets and food delivery companies; deskilling of the work performed by chefs and others in restaurants and meat retailers; and decreased numbers of specialist butchers.

121    Ms Fernandez deposed that these changes affected businesses like Dick Stone which responded by undertaking more meat processing and purchasing premises with meat storage facilities. She noted that Teys Australia was an example of a meat processing company that had adapted as a result of these changes. While initially operating as an abattoir, the company now also processes and manufactures various meat products, prepares “ready-to-eat meals”, and processes and manufactures meat for use by food services companies such as restaurants and hotels. Although unlike Teys Dick Stone did not slaughter, skin and quarter animals, Ms Fernandez said that the Teys enterprise was similar to Dick Stone, amongst other things in having factory areas where primal cuts of beef were processed into steaks and mince and packaged for dispatch.

122    Based on her research of Dick Stone and her review of its website, she expressed the opinion that the Regents Park establishment would be classified as a meat processing establishment for the purposes of the Award.

123    On the other hand, Dick Stone argued that the Regents Park establishment was not a meat processing establishment because, in effect, meat processing establishments were abattoirs and it was common ground that the Regents Park establishment was not an abattoir. Dick Stone submitted that the definition of “meat processing establishment” in the Meat Industry Award “describes one or more of the activities comprising the discrete successive processes involved from the slaughter of animals to the preparation and packing of fresh meat”. As it later put it:

[The Award] uses a bespoke definition. Relevantly, properly understood, the references to ‘boning’, ‘slicing’, ‘preparation’ and ‘packing’ are references to activities conducted during the primary production process in an abattoir and boning room. It does not refer to the subsequent process of cutting and portioning meat received from meat processing establishments. The work conducted by the Respondent is akin to that undertaken in a retail butcher shop to service the needs of particular customers. Here the Regents Park ‘establishment’ does not perform the activities undertaken in an abattoir.

124    Dick Stone contended that:

It is clear that each type of meat establishment contemplates a different segment of the continuum of activities comprising the meat industry - from the killing of animals to the sale of meat to the consumer. The segmentation of the types of meat establishment into three categories and the reference to ancillary businesses strongly indicates that the commercial structure of the meat industry is generally organised along these lines to reflect the grouping of activities as part of the system of producing meat for sale and consumption. This is also reflected in the award history in the meat industry which generally has been delineated according to three separate phases of (a) the killing and breaking down of animals into primal and sub-primal cuts in an abattoir and boning room: (b) the manufacturing and processing of meat to create meat product[s] such as smallgoods, ham, bacon etc; and (c) the wholesale retail sale of meat to businesses (e.g. hotels, restaurants, caterers, schools etc) and consumers (usually in supermarkets or butcher’s shops).

125    Further, relying on its interpretation of Holco, Dick Stone argued that its profits are derived from the mark-up on the meat it on-sells from meat processing and meat manufacturing companies and, for this reason, it comes “squarely within the boundaries of the definition of ‘meat retail establishment’” in the Award. Dick Stone claimed it was beside the point that it carries out on the site some tasks “akin to processing”, from which it derives no additional profit because those tasks are an “ancillary part of the … wholesale business”.

126    So what is the Regents Park establishment, what are its concerns, and which is predominant?

127    It is convenient to start with a description of the premises.

128    At all relevant times the premises consisted of a production room or area; large freezer and chiller warehouses for storing meat when it was delivered to the premises and after it had been processed in the production room pending sale and distribution to customers; offices; a reception area; and staff amenities. There was also a boning room, which was decommissioned in late 2017. The largest area of the premises is the distribution area, which includes about 1,500 square metres of loading docks where supplies were received and deliveries loaded.

129    The Dick Stone website emphasises the importance of meat processing to the Regents Park establishment. On the website the premises are described as a “new state of the art processing and cold storage facility”, “hous[ing] a boning room, food service operation with portion control area as well as 300 pallet chiller, 900 pallet freezer and blast freeze area of around 25 pallets”. The company boasts that it “has always remained at the forefront of innovation and technology with processing and packaging”. Nevertheless, it markets itself both on the website and elsewhere as a meat wholesaler, specifically as a “wholesaler of fine quality… meat, game, poultry & smallgoods”. And it is classified for workers’ compensation purposes as a wholesaler.

130    Parts of the premises were also used by Melrina. During the period in which Mr Boateng was employed, Melrina shared the use of the administration area, pallet spaces, the loading docks, car park, and the former boning room.

131    Melrina receives and stores meat at the Regents Park premises. It sells meat from the Regents Park establishment to retail butcher shops, food service wholesalers and small goods manufacturers. It does not engage in any processing of meat. It employs sales people, forklift drivers, cold store management staff, finance staff, and administrative employees. The evidence does not indicate how many sales staff it employed but Mr Marler testified that it employed about seven salespeople, six forklift drivers, two finance staff, four administration employees and one manager. Dick Stone contracts certain finance and administrative functions from Melrina. And Dick Stone delivers meat under contract for Melrina.

132    The activities carried out at the establishment included boning, slicing, preparation and packing of fresh meat; manufacturing of meat products; loading and unloading of meat from vehicles; storage of meat; and the administration of sales.

133    While killing, dressing, boning, slicing, preparation and packing of fresh meat describes the processes performed in an abattoir, I am unable to accept Dick Stone’s submission that the references to “boning”, “slicing”, “preparation” and “packing” in the definition of “meat processing establishment” are merely or exclusively references to activities conducted during the primary production process in an abattoir and boning room as that it is at odds with the plain words of the definition. Nor am I able to accept Dick Stone’s alternative submission that a “meat processing establishment” must at least be a boning room or a location where the activities listed in the definition are carried out in the particular sequence as part of that sequence of activities. Dick Stone submitted, in effect, that the definition of “meat processing establishment” in the Meat Industry Award was intended to replicate the definition in the FMP Award, which, it will be recalled, provided that “meat processing establishment” shall include “an abattoir boning room or pre-packing operation but does not include a retail or country butcher shop, smallgoods factory or ham and bacon factory”. But if only abattoirs and boning rooms were meat processing establishments, I ask rhetorically, why would the Award not define a meat processing establishment as an abattoir or boning room?

134    The terms of the definition make it abundantly clear that if any one or more of the activities mentioned in the definition is the whole or predominant concern of the establishment, then the establishment is a meat processing establishment. If Dick Stone’s submission were right, then there would have been no need for the phrase “any one or more of” and the conjunction “or” before “packing” would also be redundant. The submission leaves these words with no work to do. Yet, in construing the definition, the Court should strive to give effect to all its words: King at [124]–[125] (Wheelahan J). After all, whatever history and context may tell us, “what is to be determined is the proper construction of the [award] based on the objective meaning of the text”: King at [128] (Wheelahan J). Dick Stone submitted that it was important, indeed critical, in understanding the meaning of “meat processing establishment” that in Holco at [19] the Full Court said that an understanding of the general context of the Australian meat industry might indicate that the phrase “meat processing” within the term “meat processing establishment” in FMP Award should be given a meaning other than its apparently plain one. Here, however, I do not consider that the extrinsic material upon which Dick Stone relied justifies such a conclusion.

135    Moreover, as Wheelahan J went on to say in King at [128]:

The Fair Work Act contains provisions that require the Commission to publish its written decisions, reasons, approved enterprise agreements, and variations to modern awards, with the consequence that they are widely available to members of the public: s 168, s 601. There is much to be said for the notion that instruments such as awards should be reasonably capable of being understood and implemented by the participants in the industries to which they apply by reference to the language employed in the instrument itself, without having to investigate and ascertain the pedigree of the instrument in order to identify some latent meaning to be discerned by an analysis of the mental states or purposes of others: see, The Nine Brisbane Sites Appeal at [8] (Allsop CJ). In City of Wanneroo v Holmes at 380, French J stated –

Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

136    Dick Stone also submitted that the provision in cl 32.2 of the Award for a 10 minute rest break for certain production workers in meat processing establishments only supported its argument that meat processing establishments within the meaning of the Award is concerned with “work as part of the primary meat production process where the work is generally more intense and a break by one person has the capacity to halt work for others working on the line”. But cl 32.2 does not define a meat processing establishment. The particular production workers to which that clause is directed are “employees whose duties are integral to the operation of a mechanised chain, conveyor, or other similar constantly moving system of production, or a non-mechanised rail system of conveyance”. The existence of such an operation is not a component of the definition of “meat processing establishment”.

137    Dick Stone submitted that the main source of the establishment’s profits is from the sale of meat and meat products. But the evidence did not go this far. Mr Marler merely described the profit margins on two cuts of meat. No profit and loss statements were tendered.

138    Still, the purpose of the processing activities carried out at the Regents Park establishment was to prepare products for sale to customers outside the meat industry including by filling customers’ orders by slicing, dicing, mincing or otherwise preparing fresh meat into portions for sale. In this sense the processing activities support the sales functions, not vice versa, and can be seen as an ancillary, albeit important, part of the wholesale business.

139    Dick Stone submitted that it is “artificial and misguided” to exclude the business of Melrina when deciding the nature of the establishment. It pointed to the evidence that the two businesses had a close commercial relationship and operated in an integrated manner as well. Dick Stone also pointed to the fact that it earned income from the distribution and transport of meat for Melrina, charging commercial rates for that freight. Dick Stone submitted that, to the extent that it was involved in distributing and transporting “products of its meat establishment”, it forms part of the meat industry by virtue of cl 4.2(d)(ii).

140    I accept that the activities Dick Stone carried out in connection with its arrangement with Melrina mean that those activities were part of the meat industry but that is beside the point.

141    Clause 4.2 provides:

The meat industry includes:

(a)    meat manufacturing establishments;

(b)    meat processing establishments;

(c)    meat retail establishments; and

(d)    the following:

(i)    handling and further processing of all by-products of the establishments referred to in clause 4.2(a),(b) or (c), including skins, hides and rendering; and

(ii)    distribution, transport and storage (including freezing and cold storage) operations for the purpose of transport or storage of the meat or meat products of an establishment referred to in clause 4.2(a),(b) or (c),

where such activities are carried out by an employer engaged in any of clauses 4.2(a), (b) or (c) as an ancillary part of the business of that establishment, or by an employer that is a related company of such employer.

142    That means that Dick Stone and its employees in the establishment and those engaged in distribution, transport and storage (whether for Dick Stone, for Melrina, or for Dick Stone under its contract with Melrina) are covered by the Award, but it does not mean that the activities of distributing, transport and storage are relevant to the determination of the nature of the establishment. Dick Stone did not act as a wholesaler when delivering meat for Melrina. The contract it had with Melrina was to deliver the goods, not to sell them. If anything, this aspect of Dick Stone’s business is properly regarded as a freight business.

143    The evidence indicates that the majority of Dick Stone’s employees in the establishment were involved in meat processing activities. It also indicates that meat processing was an important part of the work carried out at the establishment. These circumstances are relevant to whether meat processing is the predominant concern of the establishment but they are by no means decisive. Despite these matters, the evidence indicates that the establishment was predominantly concerned with the sale of meat, particularly when Melrina’s activities are taken into account. Between 1 July 2016 and 30 June 2019, around 69% of the meat delivered by Dick Stone, including the meat delivered on behalf of Melrina, was neither cut, diced, minced or portioned by Dick Stone. When Melrina’s deliveries were excluded from the equation, that number dropped to 45%. The latter figure suggests that the majority (55%) of Dick Stone’s sales were derived from meat products that it had processed. No doubt this explains why the applicants were at pains to quarantine from consideration Melrina’s activities and sales.

144    But Melrina’s operations cannot be quarantined from consideration as the applicants would have it. Dick Stone and Melrina are related companies who shared premises, are involved in the same industry, and had common staff and quality management systems. As Dick Stone submitted, they effectively operated the Regents Park premises as a single establishment. The Award does not expressly preclude such an arrangement. And there is no reason in principle why an establishment could not be operated by two or more employers in the industry. In any event, Dick Stone and Melrina both operated out of the Regents Park establishment. The activities they both carried out therefore affect the determination of the question whether the establishment was predominantly concerned with killing, dressing, boning, slicing, preparing and/or packing of fresh meat on the one hand or predominantly concerned with the retail and/or wholesale sale of fresh meat and/or meat products on the other.

145    Even if the deliveries on behalf of Melrina are not taken into account, that would not be enough to make the Regents Park premises a meat processing establishment. That 55% of the meat delivered to Dick Stone customers may have been cut, diced, minced, portioned or otherwise processed by Dick Stone does not alter the fact that the meat is being on-sold on a wholesale or retail basis. Here, as the applicants accepted (at T318), the work undertaken by Dick Stone is akin to that performed in a retail butcher shop, albeit on a much larger scale. It would be surprising if the intention of the Award were to treat a retail butcher shop as a meat processing establishment merely because tasks that might be described as “meat processing” were carried out there. The meat processing tasks are properly to be regarded as ancillary to the principal function of a butcher shop, which is to sell meat.

146    I am not persuaded that at the relevant time the Regents Park facility was a meat processing establishment. I am not satisfied that it was predominantly concerned with killing, dressing, boning, slicing, preparing and/or packing of fresh meat. Rather, the evidence indicates that it was predominantly concerned with the sale of fresh meat and/or meat products. While it was also concerned with the former activities, those activities were an ancillary part of Dick Stone’s wholesale business.

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:

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:

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:

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:

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.

The 50 hour week issue

The NES

178    Section 62 of the FW Act imposes a limit on the number of hours an employee may be asked or required to work. At all material times it relevantly provided:

Maximum weekly hours of work

(1)    An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a)    for a full-time employee—38 hours [,]

…

Employee may refuse to work unreasonable additional hours

(2)    The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3)    In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a)    any risk to employee health and safety from working the additional hours;

(b)    the employee’s personal circumstances, including family responsibilities;

(c)    the needs of the workplace or enterprise in which the employee is employed;

(d)    whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e)    any notice given by the employer of any request or requirement to work the additional hours;

(f)    any notice given by the employee of his or her intention to refuse to work the additional hours;

(g)    the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h)    the nature of the employee’s role, and the employee’s level of responsibility;

(i)    whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j)    any other relevant matter.

Authorised leave or absence treated as hours worked

(4)    For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

(a)    by the employee’s employer; or

(b)    by or under a term or condition of the employee’s employment; or

(c)    by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.

179    Section 64 is irrelevant as it relates to award, or agreement, free employees. Section 65 permits employees to request a change in working arrangements in certain circumstances.

The evidence

180    It is uncontentious that throughout his employment Mr Boateng worked 50 ordinary working hours each week. These were conditions of his employment, stipulated in Dick Stone’s letter of offer which upon acceptance became his contract, and the pay slips confirm that he was paid for 50 ordinary hours and overtime for any additional hours. As I have already observed, there was no mention in the letter of offer of pay rates.

181    Mr Boateng’s first affidavit annexed copies of a selection of his pay slips. They disclose that in April 2016 he was paid at the rate of $20.70 per hour, that this rate applied from the commencement of his employment until about 1 July 2016 when it increased to $21.20 per hour; and that on or about 1 July of each subsequent year it increased again, to $21.90 from 1 July 2017, and $23.20 from 1 July 2019. These rates are described in the pay slips as payment for “ordinary hours”. Mr Boateng’s evidence indicates that he was paid overtime rates, apparently for work in excess of 50 hours, on two occasions: on 14 July 2017 and 21 July 2017 when on each date he was paid for two additional hours at time and a half and for half an hour at double time.

182    On the face of this evidence Mr Boateng was not paid overtime for work outside the spread of hours or for work in excess of 38 hours.

183    Dick Stone accepted that Mr Boateng was entitled to more than the ordinary hourly rate at “three points”. They were:

(1)    overtime, calculated at a rate of time and a half, for hours worked between 2 am and 4 am on Mondays to Fridays, in accordance with cll 31.2(d) and 36.1 of the Award;

(2)    overtime, calculated at a rate of time and a half for hours worked between 2 am and 4 am on Saturdays, in accordance with cll 31.2 and 36.1(a) of the Award; and

(3)    overtime, calculated at the rate of time and a quarter, for hours worked between 4 am and 7 am on Saturdays, in accordance with cl 31.2(i)(ii).

184    Mr Marler deposed that Dick Stone applied these Award provisions in calculating Mr Boateng’s pay.

185    Dick Stone submitted that, while Mr Boateng was not paid overtime as such for these hours, he was paid a rate which incorporated overtime. Mr Marler referred to this as a “blended rate”. He said that the company’s “methodology” had been consistently deployed since 2013 and was based on external professional advice from ER Strategies, an employment and industrial relations consultancy firm. He referred to a “template” spreadsheet prepared by the firm in connection with a Level 7 employee. The covering email, from ER Strategies to Mr Marler, stated:

Attached is updated spread sheet with overtime performed at start of shift hence not making the employee as a shift worker attracting a loading. This option is cheaper but you need to have in place that their ordinary hours are 4 am to 11:30 am and that the 2am – 4am is overtime.

(Emphasis added.)

186    Mr Marler said that Dick Stone chose this option. He deposed that at all relevant times employees earned overtime calculated on a rate of time and a half for the hours worked between 2 am and 4 am. A letter to the Union from Mr Marler in late November 2018 bears this out. It shows that the base hourly award rate (for the year 1 July 2018 to 30 June 2019) was $19.84 for a Level 3 employee and $20.33 for a Level 4 employee and that Dick Stone was paying hourly rates of $22.65 and $23.20 respectively. Tables accompanying the letter show that the award entitlement for 38 hours at ordinary time for a Level 3 employee was $753.92 (38 x $19.84) and $357.12 in overtime at a rate of time and a half for the two hours outside the spread of ordinary hours (from 2 am to 4 am) each six days worked (1.5 x $19.84 x 12), giving a total of $1,111.04. In contrast, the rate paid by Dick Stone was $1,132.50, which was $21.46 per week greater than the award rates. None of these figures were challenged.

187    Mr Marler also gave unchallenged evidence that leave entitlements and superannuation were paid on the basis of the same hourly rates.

188    There is no evidence, however, to indicate that in respect of Mr Boateng, at least, Dick Stone ever had “in place” that his ordinary hours were 4 am to 11.30 am and that the hours worked from 2 am to 4 am is overtime. Mr Marler accepted in cross-examination that at no stage was a document given to Mr Boateng designating these matters. Nor did he have any recollection of informing Mr Boateng. While Dick Stone appears to have followed some of the advice it received from ER Strategies, it did not follow all of it.

Did Dick Stone breach cl 31.2(d) of the Award by failing to pay overtime rates for work performed outside the spread of ordinary hours?

189    Clause 31.2 the Award relevantly provides that:

(a)        The ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 hours in 28 days.

(b)    The ordinary hours of work are to be worked continuously at the discretion of the employer, except for meal breaks or other breaks prescribed in the award.

(c)    The maximum number of ordinary hours which may be worked on any day or shift must not exceed 10 hours.

(d)    Any hours worked outside the spread of hours listed must be paid at overtime rates.

190    The spread of hours for meat retail establishments is from 4 am to 9 pm on weekdays, from 4 am to 6 pm on Saturdays, and from 8 am to 6 pm on Sundays (cl 31.2(i)). In contrast, the spread of hours for meat processing establishments is Monday to Friday between 6 am and 8 pm (cl 31.2(f)).

191    The applicants fairly described the overtime rates for work outside the ordinary spread of hours as penalty rates for working “unsocial hours” (see FW Act, s 139(1)(e)). But nothing turns on the characterisation of the rates.

192    It was common ground that work performed on weekdays and Saturdays before 4 am in a meat retail establishment and before 6 am in a meat processing establishment was work performed outside the spread of hours. The dispute turned on whether overtime (or penalty) rates were payable for four hours each of the six days Mr Boateng worked (as it would have been if the Regents Park establishment were a meat processing establishment) or on two hours each work day and five hours on Saturdays (as required for a meat retail establishment). Having regard to my finding that the Regents Park establishment was a meat retail establishment, the answer is the latter.

193    Dick Stone submitted that, although Mr Boateng’s pay slips did not record payments for overtime, because the amounts it paid him were greater than the award rates including overtime and that it had chosen to pay him in this way to cover its obligations under the Award, it was also entitled to set off the payments it made to Mr Boateng against the award rates. In other words, it claimed that the amounts it had paid as wages satisfied its obligations under the Award or could be brought into account in satisfaction of the award entitlements: WorkPac Pty Ltd v Rossato (2020) 278 FCR 179 at [222] (Bromberg J), [820] (White J), [983] (Wheelahan J).

194    In a letter to the Union on 28 November 2017 Dick Stone acknowledged that ordinary hours under the Award are 38 hours per week but pointed to cl 2.2 of the Award which provides that “[t]he monetary obligations imposed on employers by [the] award may be absorbed into over award payments”. In this proceeding, however, while Dick Stone asserted that the wages paid to Mr Boateng reflected a “blended rate”, it did not claim that it was making over-award payments. Rather, it claimed that the amounts paid reflected the award entitlements, including overtime rates and allowances.

195    The applicants submitted that no set-off was permissible. They argued that the work Mr Boateng performed outside the hours was not paid at overtime rates because there was no agreement or common understanding that the amount he was paid for working any part of a 50 hour week would include an overtime rate, nor was it designated as overtime. I accept that there was no such agreement, understanding or designation, at least until the meeting in 2019.

196    The relevant principles were set out at length in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 at [39]–[67] and also by White J in Rossato at [824]–[869] and by Wheelahan J in the same case at [987]–[1003]. As Bromberg J observed in Rossato at [221], the authorities are largely based on observations first made by Sheldon J in Ray v Radano [1967] AR (NSW) 471 at 478–479 and “adopted and re-expressed” in Poletti v Ecob (No 2) (1989) 31 IR 321 at 332–333 (Keely, Gray and Ryan JJ). The relevant remarks of Sheldon J in Ray v Radano are set out in full in Linkhill at [47].

197    In Poletti at 332–333 the Full Court noted that

[T]here are two separate situations dealt with in the passage from the judgment of Sheldon J …The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whichever obligation or obligations he or she wishes. See Halsbury’s Laws of England, 4th ed, vol 9, paras 505 and 506.

198    White J explained in Rossato at [834] that in Poletti the Court identified two principles:

Under the first, the parties’ positive agreement that the payment be made for a non-award entitlement or as an addition to an award entitlement precludes the employer later from seeking to rely on the payment as discharging some other liability. Under the second, it is the employer’s own conduct as debtor in designating the payment as discharging one debt to the employee, rather than discharging the award obligation, which precludes the payment being regarded as discharging the latter. Both were stated as principles of preclusion.

199    His Honour referred to these two principles as the “contractual principle” and the “designation principle”.

200    After reviewing the case law since Poletti, White J summarised the law at [865] (citations omitted).

201    First, with respect to the contractual principle, his Honour said:

[I]f [the parties] agree that a sum of money is paid and received for a specific purpose which is over and above or extraneous to an award entitlement, the contract precludes the employer from later seeking to rely on the payment as satisfying an award obligation which is outside the agreed purpose of the payment. If the payment was made for the purpose of satisfying the kind of award obligation sought to be satisfied, it may be brought into account as satisfaction or part satisfaction of that obligation. If it was paid for some other purpose, then the employer cannot bring the payment into account … Stated more generally, an employer cannot later reallocate an amount agreed to be paid to an employee in respect of subject A (for example, ordinary hours of work) to meet a claim in respect of subject B (for example, overtime) …The focus is on the purpose of the payment. If it arises out of the same purpose as the award obligation, it can be set off …

(Emphasis added.)

202    Second, with respect to the designation principle, his Honour said:

When there are outstanding award or enterprise agreement entitlements, a payment designated by the employer as being for a purpose other than satisfaction of the award entitlement cannot be regarded as having satisfied the award or enterprise agreement.

203    Third, his Honour said that “close regard must be had to the character of the payment on which the employer relies for the claimed set off and the purpose (usually the agreed purpose) for which it was made”.

204    Fourth, his Honour noted that the purpose of the payment is a question of fact in each case; it may be express or it may be implied from the parties’ agreement or from the employer’s conduct. The issues of “designation and appropriation” must be determined by reference to all the evidence.

205    It is not enough that the debtor unilaterally decides to appropriate a payment. In Moree Plains Shire Council v Goater [2016] FCAFC 135; 14 ABC(NS) 255 at [59], to which White J referred at [867] of his judgment in Rossato, the Full Court (Rares, Katzmann and Markovic JJ) observed that:

[A] mere intention to appropriate a payment that the debtor does not communicate to the creditor is not sufficient, and the creditor is free to apply the money, when received, as it chooses …

206    The first sentence in this passage was drawn from the judgment of Greer LJ in Leeson v Leeson [1936] 2 KB 156 at 161. The Full Court in Goater also cited the remarks of Greene LJ at 162-3, which were to the same effect, and the concurring judgment of Talbot J at 163. Greer LJ said that “much more than an intention” was required for there to be an appropriation. He added that the appropriation had to take the form of a communication of the intention, express or implied, “so that the creditor may know that this right of appropriation as creditor cannot arise”. In the absence of communication there is no appropriation. Like Greer LJ, Greene LJ emphasised that a debtor’s undisclosed intention to appropriate a payment for a debt is not sufficient to engage the principle. His Lordship’s full discussion of the principle is instructive:

When [a debtor] does not notify the creditor of his intention, and when the circumstances are such that the creditor receives the payment merely in satisfaction of the debts and the payment is not more appropriate to the payment of the one debt than to that of the other the creditor is entitled to make the appropriation. When it is said that there need not be an express appropriation of a payment, but that the appropriation can be inferred, that does not mean that appropriation of a payment can be inferred from some undisclosed intention in the mind of the debtor. It is to be inferred from the circumstances of the case as known to both parties. Any other view might lead to injustice, as the creditor’s right to appropriate a payment would be defeated. When the matter is examined upon principle it will be found that an undisclosed intention in the mind of the debtor is not sufficient to support an appropriation. If authority is needed for that proposition it can be found in the judgment of Lush J in Parker v Guinness (1910) 27 Times LR 129 at 130, where he said: ‘What is to be considered is this. Is the true inference to be drawn from all the circumstances of the case that the debtor paid the moneys generally on account, leaving the creditor to apply them as he thought fit, or is the true inference that he paid them on account of special portions of the debt for the purpose and with a view to wipe these out of the account? His undisclosed intention so to do would, of course, not benefit him. It is what he did in fact, and not what he meant to do that is to be regarded.’ A debtor’s undisclosed intention to appropriate a payment to one of two debts owed by him to a creditor cannot benefit him.”

207    These remarks were adopted by Lockhart J in Re Walsh; Ex parte Deputy Commissioner of Taxation (NSW) (1982) 13 ATR 40 at ¶41–42; 60 FLR 355 at 357–358. See also Knysh v Corrales Pty Ltd (1989) 15 ACLR 629 at 633–634 (Morling, Pincus and Lee JJ).

208    The contract principle has no bearing in the present case. Mr Boateng and Dick Stone did not agree that the difference between the moneys due under the Award and the moneys actually paid “[would] be paid and received for a specific purpose which is over and above or extraneous to an award entitlement”. And the designation principle does not apply either because, while the evidence given by Mr Marler indicates that Dick Stone intended that part of the wages paid to Mr Boateng be applied to its liability under the Award to pay overtime rates for work outside the ordinary spread of hours, the evidence does not demonstrate that the company’s intention was disclosed to Mr Boateng.

209    Mr Boateng’s contract stipulated that he would be paid overtime for “additional hours” over and above the 50 hours a week “ordinary work hours”. The payments made to Mr Boateng for working 50 hours a week were designated in his pay slips as payment for “ordinary hours”. Without communicating its intention to satisfy its obligations to pay overtime rates in accordance with the Award by absorbing them in over-award payments, it was not open to Dick Stone to appropriate part of those payments to discharge its obligation.

210    The only evidence upon which Dick Stone relied was that at a meeting with production employees on the last day of February or the first day of March 2019 Mr Marler told those present, including Mr Boateng, that they were being paid a loaded rate for “the entire 50 hours” and that Mr Boateng understood that, when Mr Marler used the expression “loaded rate”, he was referring to a rate which included overtime payments. It is difficult to see how a statement by a debtor to a creditor made three years after the debt first accrued can amount to the disclosure of an intention to appropriate part of the payment to one debt rather than another. An appropriation made by a debtor must be made at or before the time of payment: Cory Bros & Company Ltd v Owners of the Turkish Steamship Mecca (The Mecca) [1897] AC 286 at 293 (Lord Macnaghten); Goater at [58]; Rossato at [257] (Bromberg J).

211    I find that, before the meeting in 2019, a matter of months before Mr Boateng’s employment came to an end, the only information conveyed to Mr Boateng about his wages was that which appeared in his pay slips, namely that for 50 “ordinary hours” a week he was paid a particular sum and overtime only for hours in addition to that. Dick Stone’s intention that part of the sum it paid was to cover its liability to pay overtime rates for work outside the ordinary span of hours was never communicated to him, at least not until the meeting.

212    I therefore find that between 21 March 2016 and 1 March 2019 Dick Stone contravened cl 31.2(d) by failing to pay Mr Boateng overtime rates for work outside the ordinary spread of hours and is not entitled to set off the amounts it paid over and above the ordinary hourly rate against its obligation to pay overtime rates.

Did Dick Stone breach cl 36.1(a) of the Award by failing to pay overtime for hours worked outside ordinary working hours?

213    Clause 36 relevantly provides as follows:

36.1    Entitlement to overtime and payment

(a)    All time worked outside ordinary working hours on any day as prescribed in clause 31–Hours of work (or in the case of a shiftworker, outside the hours rostered as ordinary shiftwork hours in accordance with clause 34–Rostering) will be deemed to be overtime and be paid for at time and a half for the first three hours and double time thereafter.

…

214    It will be recalled that cl 31.2(a) provides that “[t]he ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 hours in 28 days”. Clause 31.2(c) provides that the maximum number of ordinary hours which may be worked on any day must not exceed 10 hours.

215    The applicants submitted that the entitlement to overtime arose after the employee completes 38 ordinary hours a week and this means that he should have received time and a half for the first three hours on a Friday and double time thereafter. That is consistent with the approach taken in Poletti at 326–329.

216    I reject the submission.

217    Poletti was concerned with a differently worded clause. The ordinary hours of work were 40 hours a week under the relevant award. The employer also argued that no overtime was payable unless on the day under consideration the employee had already worked eight hours on the basis that, for the purpose of calculating overtime, “each day stood alone”. The Court rejected the argument on the basis that there were no such words in the clause. Clause 36.1 of the Meat Industry Award, however, provides that overtime rates are payable in respect of “all time worked outside ordinary working hours on any day”. That means that the overtime is to be calculated on a daily, rather than a weekly, basis. Mr Boateng was entitled to be paid overtime rates for work outside the ordinary hours of 4 am to 9 pm weekdays and 4 am to 6 pm on Saturdays. If he had worked in excess of 10 hours on any day he would also have been entitled to overtime rates for the excessive hours. But he was not entitled to overtime for the work he performed after his 38th hour of work in a week, being the work he performed after 4 am on Friday as the applicants contended. The position would have been different if the words “on any day” were absent as they were in Poletti.

218    Having regard to the failure of Dick Stone to communicate its intention to allocate part of Mr Boateng’s wages to its obligations to pay overtime rates, I have found that it was in breach of cl 31.2(d) of the Award. For the same reason it was in breach of cl 36.1.

Were the hours in excess of 38 hours per week Mr Boateng was requested or required to work “reasonable” within the meaning of s 62 of the Act?

219    Mr Boateng deposed that he was given no choice about his ordinary hours of work. He pointed out that at the time he joined Dick Stone he had only been in Australia for a matter of weeks and had no knowledge of Australian law or rights. He was simply told that he was to work from 2 am to 11.30 am Monday to Friday and from 2 am to 7 am on Saturdays. He said he found the combination of working so many hours a week for six days a week and the very early start times “very draining and tiring”. He insisted that, if he were given a choice, he would not have chosen to work in that way.

220    Dick Stone submitted that, since the 50 ordinary hours of work was a term of Mr Boateng’s contract of employment into which he freely entered, it could not possibly be said to have been a requirement of his employer or a “unilateral” request. It followed, so Dick Stone claimed, relying on WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681; 392 ALR 39; 309 IR 89 at [58] and [65], that s 62(1) was not engaged.

221    In WorkPac at [58] the High Court observed that:

Nothing in the statutory framework within which the employment relationship in the present case has been established relevantly inhibits the freedom of parties to enter into a contract for casual employment.

222    At [65] the Court said that “where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute”.

223    I incline to the view that Mr Boateng was required to work 50 hours a week, notwithstanding that he voluntarily entered into the agreement to do so. Once the contract was made and he began to work pursuant to its terms he was bound to perform his side of the bargain. Section 62 is part of the NES. As s 61(1) makes explicit, it is a minimum standard which cannot be displaced. Its effect, as Dick Stone conceded in argument, is that the parties cannot contract out of it. It is unnecessary, at least at this point, to decide whether a condition of a contract of employment that requires an employee to work in excess of 38 hours is a “requirement” for the purposes of s 62(1) because it is enough that the employer requests the employee to work the excess hours. The only circumstances in which the FW Act sanctions work by an employee in excess of 38 hours is if the additional hours are reasonable.

224    The question is whether it was reasonable for Dick Stone to require or request Mr Boateng to work the 12 additional hours every week. The burden of proof lies with the respondent: Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (FWO v FTM) at [474]. There, I said:

The effect of s 62(1) is that requiring or requesting a full-time employee to work in excess of 38 hours is prima facie unreasonable but that there is an exception if it is reasonable for such a requirement or request to be made. In such a case, the burden rests on the respondent employer to prove that the excess hours were reasonable see, for example, Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 (Walsh JA). What is “reasonable” is necessarily assessed on a case-by case basis, by reference to the employee’s circumstances and the employer’s business in accordance with the terms of s 62(3): BHP Coal [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298] at [173].

225    What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in s 62(2). I will address each of these matters in the order in which they appear in that subsection.

Was there any risk to employee health and safety from working the additional hours (s 62(3)(a))?

226    Dick Stone argued that this was a neutral factor in the present case.

227    It submitted that, since Mr Boateng worked shifts of 9.5 hours duration on weekdays and 5 hours on Saturdays (with breaks) and cl 31.2(c) of the Award sets a maximum of 10 hour shifts for employees covered by the Award, his additional hours must be considered to be “prima facie reasonable” as they accord with the industrial standard.

228    The difficulty with this submission is that cl 31.2(a) provides that the ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 hours in 28 days. When cl 31.2(c) is read in context, it is clear that the Award does not regard it as reasonable to require an employee to work more than four 10 hour days or shifts a week. The fact that the Award imposes a ceiling of 10 ordinary hours on any one day or shift does not assist Dick Stone.

229    The applicants pointed to the fact that Mr Boateng worked with knives and machines designed to cut and dismember meat, on shifts starting at 2 am in an artificially chilled environment. Mr Boateng described the hours as “very tiring”. He said that, because of the time he started work and the physical nature of that work he was often tired and exhausted. This evidence was not challenged and I accept it. Mr Boateng suffered a number of “small” injuries during his employment when trying to lift or catch very heavy tubs. He said that incidents like this were commonplace. Dick Stone led evidence that there had been 59 injuries in the workplace in the three years from December 2016 to November 2019. The applicants submitted that factors such as fatigue and exhaustion and the use of dangerous equipment give rise to a risk to health and safety which must be exacerbated by additional hours.

230    Dick Stone submitted that the evidence Mr Boateng gave was not probative evidence that his work caused “any real risks” to his health or safety or the health of safety of anyone else. It contended that it was significant that he had suffered only four injuries in three years, none of which required any treatment, and arose because he tried to lift or catch heavy tubs rather than as a result of lengthy shifts, repetitive strain or exhaustion. This much is true but it does not mean there was no risk to Mr Boateng’s health and safety — merely that the risk of serious injury did not materialise in his case. It is a fact of life that fatigue can affect alertness and concentration. It is common knowledge that fatigue, particularly physical or mental exhaustion, can increase the risk of accidents at the workplace and, over the long term, contribute to a variety of diseases. In a job requiring the use of knives and the lifting of heavy weights there are obvious risks.

What were the employee’s personal circumstances, including family responsibilities (s 62(3)(b))?

231    Little evidence was advanced about Mr Boateng’s personal circumstances, particularly his family responsibilities.

232    The evidence does disclose that Mr Boateng was a very recent immigrant to Australia when he accepted Dick Stone’s offer of employment. In all likelihood he had no knowledge of Australian law. The evidence also discloses that Mr Boateng was a married man and that his wife gave birth to their first child on 1 December 2017.

233    Dick Stone was aware that Mr Boateng was a recent immigrant. His application for employment disclosed that he had left Ghana for Australia in 2016. Otherwise, there is no evidence to suggest that Dick Stone was aware of his personal circumstances or family responsibilities at any time.

What were the relevant needs of the workplace or enterprise in which the employee is employed (s 62(3)(c))?

234    As Mr Marler observed in his first affidavit, the Award provides for a greater spread of ordinary hours for meat retail establishments than other meat establishments.

235    Mr Marler deposed that:

Dick Stone offers its customers next day delivery. Orders can be received by phone, fax, email and voicemail up until 11 pm, for delivery the following day. The vast majority of customers submit orders for next day delivery. In order to fill these just-in-time orders, a number of Dick Stone employees commence work at 2am. The early starts are necessary in order to gather all the stock ordered from the chillers, and prepare each order of fresh meat in accordance with the customer’s requirements, and have it ready for delivery to customers for the commencement of the customer’s trading day, or to have the order ready for collection by customers.

236    The applicants submitted, however, that there was no evidence that these exigencies made it necessary for Dick Stone to arrange its work practices in such a way that Mr Boateng had to work 12 additional hours a week. The submission overlooked Mr Marler’s evidence on the topic. He deposed that if existing employees worked 38 hours a week and new employees were hired, Dick Stone would save money because there would be less overtime payable. He said that this was not done, however, because it was feared it would jeopardise staff retention and the company’s ability to hire new employees, noting the financial incentives for employees to work 50 hours a week. He said that Dick Stone nonetheless sought to accommodate requests for different hours when made by its employees. This evidence tends to suggest that the 50-hour week aligned with Dick Stone’s business needs, although does not necessarily support the conclusion that the additional hours were reasonable in Mr Boateng’s case.

Was the employee entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours (s 62(3)(d))?

237    Mr Boateng was entitled to receive overtime payments/penalty rates for working the extra 12 hours. In circumstances in which he was not paid overtime rates in accordance with the applicable award, however, this factor does not assist Dick Stone.

Was any notice given by the employer of any request or requirement to work the additional hours (s 62(3)(e))?

238    The answer to this is yes. Notice was provided in the letter of offer and included as a term of his contract.

Was any notice given by the employee of his or her intention to refuse to work the additional hours (s 62(3)(f))?

239    At no time did Mr Boateng give notice of his intention to refuse to work the additional hours.

240    Mr Marler deposed that there were two occasions during Mr Boateng’s employment when he had held formal discussions with Dick Stone employees, including Mr Boateng, and offered them the opportunity to reduce their ordinary weekly hours. The first was in early December 2017 when Mr Marler held a meeting with all production employees and requested that they reduce their ordinary hours to enable Dick Stone to employ some of the Melrina employees facing potential redundancy. The uncontested evidence is that at that time no Dick Stone employee expressed an interest in reducing their ordinary hours. The second occasion was at the meeting on 28 February or 1 March 2019 after the Union claimed that Dick Stone had contravened the Award by requiring employees to work in excess of 38 hours a week. Mr Marler’s evidence, again undisputed, was that he invited the production employees to advise him if they wanted to adjust their working hours and told them that Dick Stone was “open to flexible working arrangements”. But none of the employees approached him to request a variation in their hours.

241    The first time Mr Boateng raised an issue about his hours was upon the commencement of this proceeding. While Mr Boateng could not recall an invitation to work fewer hours being made at the meeting in 2017, he did recall such an offer being made at the meeting in 2019. He deposed that he did not take up the offer because he was concerned that, if he spoke up, his employment would be terminated. As Mr Boateng conceded in cross-examination, nothing prevented him from asking Dick Stone to work fewer hours or raising it with the Union. Whether Dick Stone would have agreed, however, is an open question.

What were the usual patterns of work in the industry, or the part of an industry, in which the employee works (s 62(3)(g))?

242    Dick Stone submitted that the span of hours specified in the Award for meat retail establishments, in comparison with other meat establishments, indicates that they were expected to operate across a wider span of hours, to reflect the customer service nature of the business. In particular, the Award expressly contemplates work starting at 4 am. Mr Marler made a similar submission in his first affidavit. Although work at the Regents Park establishment started two hours earlier, Dick Stone submitted that it did not necessarily follow that this early start took it outside the usual patterns of work in the industry. It argued that this factor weighed in favour of the conclusion that the additional hours were reasonable.

243    There are at least two problems with these arguments.

244    First, as the applicants submitted, there is no evidence of usual patterns of work in the meat industry that are relevant to this question.

245    Second, to the extent that the Award tells us anything, it is that the usual pattern of work in this part of the meat industry is to work from 4 am, not 2 am.

What was the nature of the employee’s role, and the employee’s level of responsibility (s 62(3)(h))?

246    It was common ground that there was nothing in the nature of Mr Boateng’s role that suggested a need for him to work more than 38 hours a week. He had no managerial, supervisory or other additional responsibilities.

Were the additional hours in accordance with averaging terms (s 62(3)(i))?

247    Section 63 of the FW Act permits a modern award to include terms providing for the averaging of hours over a specified period so long as they do not exceed 38 hours in the case of full-time employees. It was common ground that the additional hours were not in accordance with any averaging terms.

Are there other relevant matters (s 62(3)(j))?

248    The applicants pointed to several additional matters:

(1)    the number of additional hours, which represented an additional 31.5% on top of a normal working week;

(2)    the obligation to work 12 additional hours every week;

(3)    the fact that the additional hours were not based on any variation in the employer’s requirements;

(4)    the expectation provided for in the contract (and occasionally exercised) that hours over and above 50 hours a week would be worked;

(5)    the fact that the additional hours deprived Mr Boateng of a two-day break from work every week;

(6)    the fact that the hours worked included starting at 2 am and these were “unsocial”; and

(7)    the contractual obligation to work the additional hours.

249    Dick Stone’s response was first, that the applicants called no evidence to rebut its evidence that the 50 hour working week and roster structure was preferred by the majority of its workforce; and second, that “the fact that many persons may consider a 2.00 am commencement to be ‘unsociable’ is irrelevant to the Court’s task of determining if the number of hours worked in a week was reasonable” (original emphasis).

250    I do not accept Dick Stone’s submission that, whether or not a 2 am start is “unsociable” is irrelevant. The question is whether requiring or requesting Mr Boateng to work the excess hours was unreasonable. The time those hours are required to be worked has a logical bearing on the question of reasonableness. So, too, do the number of additional hours, the regularity and frequency of them, and the fact that, to the extent that they took Mr Boateng over the ordinary 5-day working week, they deprived him of his weekends. Whether or not the majority of Dick Stone’s workers preferred a 50-hour week does not make the hours reasonable in Mr Boateng’s case. The fact that he did not question Dick Stone’s offer or attempt to negotiate its terms is unsurprising, having regard to the fact that he had only recently arrived in Australia from a third-world country, needed employment, and was likely to be unfamiliar with Australian law. The fact that he made no complaint about working 50 “ordinary hours” before the Union’s involvement is also unsurprising in the circumstances. As I go on to explain below, I am not satisfied that he was given a copy of the Fair Work Information Statement before he started work or as soon as practicable thereafter. It seems tolerably clear he had no idea of his award entitlements until he contacted the Union. On the other hand, it is a factor to be taken into account along with the other relevant considerations. On balance, having done so, I am persuaded that it was unreasonable of Dick Stone to require or request Mr Boateng to work 12 hours a week every week over and above the 38 stipulated by the Award and the Act.

The provision of information issues

Did Dick Stone contravene s 125 of the FW Act?

251    The first question raised here is whether Dick Stone contravened s 125(1) of the FW Act by failing to give Mr Boateng a copy of the FWIS before, or as soon as practicable after, he commenced employment.

252    Section 124 requires the Fair Work Ombudsman to prepare a Fair Work Information Statement containing information about the NES; modern awards; agreement-making under the Act; termination of employment; the role of the Fair Work Commission and the Ombudsman; and various other matters.

253    Section 125(1) of the FW Act relevantly provides as follows:

Giving new employees the Fair Work Information Statement

(1)    An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

254    Regulation 2.02 of the Fair Work Regulations 2009 (Cth) (FW Regulations) prescribes the manner in which an employer may give the Statement to an employee. Subregulations (2) to (6) provide that the Statement may be given to the employee personally; sent by pre-paid post to the employee’s residential address or to a postal address nominated by the employee; sent by fax to the employee; and provided by emailing the Statement or an electronic link to it to the employee’s work email address or to another email address nominated by the employee. But subregulation (7) states that “[s]ubregulations (2) to (6) do not prevent the employer from using another manner of giving the Statement to the employee”.

255    Mr Boateng deposed that he was not provided with a copy of the FWIS at the time he started working for Dick Stone. He said the first time he saw one was in about late 2018 or early 2019 “after the Union became involved”. In cross-examination he testified that Victor Dowes, the Operations Manager, called the employees into the office and asked them to sign for it. Mr Marler’s evidence was that he gave a copy of the FWIS to Mr Bertram to include in Mr Boateng’s employment commencement pack. In cross-examination Mr Boateng testified that he “glance[d] through” the documents in the employment commencement pack and did not read them carefully but he steadfastly maintained that he did not receive a FWIS as part of his employment commencement pack.

256    While it is possible that the FWIS was in his employment commencement pack and Mr Boateng failed to see it or forgot it was there, he claimed in cross-examination that he would have remembered it if it had been. I am inclined to accept that evidence. Mr Boateng is tertiary educated and intelligent. The FWIS was an important document. It is likely it would have been of interest to him, given this was his first job in Australia and it informed him of his legal rights. All Mr Marler could say is that he gave Mr Bertram a copy of the statement to include in the employment commencement pack. It is unlikely, however, that he would have an actual memory of doing so. More likely he believed he would have done so. In any event, even if I were to accept that he gave the document to Mr Bertram that does not prove that Mr Bertram gave it to Mr Marler. As I have already observed, no evidence was elicited from Mr Bertram. The employment commencement pack, which Dick Stone discovered, is annexed to Mr Boateng’s first affidavit. It does not include the FWIS and there is no reference to it in the detailed index. Moreover, contrary to Dick Stone’s submission, Mr Marler gave no evidence that it was his “usual practice” to provide a FWIS to new employees. In these circumstances, I consider it more likely than not that the FWIS was not included in the pack.

257    According to Mr Marler, a laminated copy of the FWIS was sitting on the counter in the main reception area throughout Mr Boateng’s employment and one has been on display on the HR noticeboard in the staff lunchroom and outside the dispatch office since 2018. Mr Boateng said that he had walked past the counter in the main reception area many times and never saw any documents on the counter. There was no dispute that there was a noticeboard in the staff lunchroom. But Mr Boateng denied that the FWIS was displayed there at any time during which he was employed, and he could not recall seeing it displayed outside the dispatch office. Annexed to Mr Marler’s first affidavit were photographs taken of the main reception area where, on the counter, laminated copies of the FWIS and the NES had apparently been placed, and the HR noticeboard in the staff lunchroom on which the FWIS was displayed. Since the photographs were taken in February 2020, five months after Mr Boateng last worked there, I put no weight on them. In any event, the photograph of the reception area does not clearly show the FWIS or NES.

258    Mr Marler’s evidence was conclusory. He did not say that he placed the FWIS in either position. He did not say that he saw it there on any occasion. The Court was kept in the dark as to the basis for his evidence. Yet, if he were right, numerous witnesses could have been called to support his account. On the basis of the limited evidence before me and in view of the conflict between the parties, I am not satisfied that the FWIS was on the counter in the main reception area or on the noticeboard in the staff lunchroom or outside the dispatch office during Mr Boateng’s employment.

259    Regardless, it is not to the point that the FWIS was displayed on the counter in the main reception area or on a noticeboard in the staff lunchroom or outside the dispatch office. The FW Act requires that it be given to an employee before, or as soon as practicable after, the employee starts employment. The employer’s obligation is to “give” it to the employee. “Give” is not defined in the Act. It follows that it is to be given its ordinary meaning, understood in its context: WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94; 210 ALR 190; 80 ALD 69 at [37]. Used in the way it appears in s 125 and the FW Regulations, the ordinary meaning of “give” is to “deliver freely [or] hand over” (see Macquarie Dictionary), not make available for inspection. In other words, in the context in which the verb is used, physical delivery is required and that means actual, not constructive, delivery: cf. WACB at [37]. As I observed in FWO v FTM at [505] that:

Giving the Fair Work Information Statement to new employees is a means of ensuring that employees are aware from the time they start work for an employer of their rights and entitlements at work. It provides a useful checklist of important information about pay and conditions to which they might reasonably have recourse throughout their employment in the privacy of their own homes if they so choose or in consultation with their union or legal representatives. It includes advice on the roles of the Ombudsman and the Commission and information on how to contact them. Since there is no requirement that a copy of the Statement be provided in a language other than English, an employee whose first language is not English may well wish to have it translated into their native language. In my view the Regulations require actual, not constructive, delivery of the Statement to employees.

260    In the absence of evidence from Mr Bertram and the lack of any reference in the index to the documents in the employment pack, I accept Mr Boateng’s evidence that Dick Stone did not give him a copy of the FWIS either before, or as soon as practicable after, he started working for it. It follows that I am satisfied that Dick Stone contravened s 125 of the FW Act.

Did Dick Stone fail to make the Award and the NES available to Mr Boateng as required by cl 5 of the Award?

261    The second question is whether Dick Stone failed to make the Award and the NES available to Mr Boateng in accordance with the obligation imposed by the Award itself.

262    Clause 5 of the Award provides that:

The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.

263    Mr Marler said that, together with the FWIS, the Award and the NES were “displayed” on the counter in the main reception area throughout Mr Boateng’s employment. Mr Marler also deposed that they were made available to Mr Boateng throughout his employment in the main office area where the site inductions were conducted. Mr Boateng deposed that he had walked past the area on many occasions and never saw any documents there. But even if the Award and the NES were on the counter in the main reception area or in the main office area, it does not matter. The obligation imposed by cl 5 of the Award is to ensure that they are available on a noticeboard conveniently located at or near the workplace or electronically, whichever makes them more accessible. The fact that they were available in the main office is beside the point unless they were posted on a noticeboard there.

264    Mr Boateng’s evidence was that he never saw the Award or the NES on a noticeboard when he worked for Dick Stone.

265    A photograph of the “HR notice board” to which a copy of the Award and the Fair Work Information Statement appear to be pinned is annexed to Mr Boateng’s first affidavit as SYB18. It does not appear to contain a copy of the NES. The same photograph was exhibited to Mr Marler’s first affidavit (Ex 1 tab 46). He described it as “a photo of the HR notice board in the staff lunch room, taken on 17 February 2020”. Mr Boateng deposed that he had never seen such a noticeboard when he worked at Dick Stone and, while there was a noticeboard in the staff lunchroom which the evidence indicated he used, it did not look like the one in the photograph. Of course the fact that Mr Boateng did not see the documents does not necessarily mean they weren’t there. But it is notable that, although Mr Marler deposed that the FWIS, NES and Award were displayed on the counter in the main reception area throughout Mr Boateng’s employment and that the FWIS had also been displayed on the HR noticeboard in the staffroom since 2018, he did not say that the Award and the NES were on any noticeboard throughout Mr Boateng’s employment. Indeed, what he said is that they were on display on the HR noticeboard in the staff lunchroom “since August 2019”. Roughly speaking, that coincides with the end of Mr Boateng’s employment.

266    Mr Marler deposed that the Award and NES were accessible to all employees from computers in the offices and on Mr Boateng’s mobile phone but Mr Boateng deposed that he had no idea how to access them. While he was aware that three or four staff members worked on computers in the office area upstairs, Mr Boateng said he was never told and did not know that the Award or the NES was available from these people. He said he was also unaware of any computer terminals that were available for him to use to access the information or that the information could be accessed through his mobile phone.

267    Mr Boateng deposed that it would never have occurred to him that he would be able to use the computers in the offices and that, with two exceptions, he never saw any labourer, butcher or other production worker use them. The two exceptions were Mr Bertram, the head butcher, and a worker named Cassie who sometimes helped in the office. Mr Boateng said that the only time he used a computer when working at Dick Stone was in about July 2019 when he was called into a small office where his “picking slips” were allocated and was directed to set up a “Flare” account to enable the pay slips to be provided electronically.

268    There is no evidence that Mr Boateng was ever informed that the Award and the NES were available on a computer at work to which he had access or that he could access copies on his mobile phone. Of course copies of the Award and the NES are available on the internet but the employer’s obligation is to ensure that they are available and accessible to the employees. That obligation is not discharged by the fact that they can be found on the internet unless the employees are told where to find them and how to access them. Nor, it seems to me, does the fact that the documents may be accessed on a computer used by other members of staff make them more accessible than if they were on the noticeboard in the staff lunchroom.

269    I find that Dick Stone did not ensure that copies of the Award and the NES were available to Mr Boateng during his employment either on a noticeboard conveniently located at or near the workplace or electronically. It follows that Dick Stone contravened cl 5 of the Award.

Did Dick Stone fail to post a roster in contravention of cl 34.2 of the Award?

270    Clause 34.2 reads as follows:

The employer must post a roster in the premises, showing the starting and finishing times for ordinary hours for employees.

271    Mr Boateng deposed that he was never provided with a roster and he never saw one.

272    Mr Marler asserted that Mr Boateng’s roster was “documented” in his letter of offer, referring to the following paragraph:

Your ordinary work hours will initially be within the range 2 am to 11:30 am Monday to Friday, 2am to 7 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.

273    Since the obligation under the Award is to “post a roster on the premises”, this can scarcely be an answer to the applicants’ complaint.

274    Mr Marler also deposed, however, that during Mr Boateng’s employment up until December 2017 rosters were posted on a wall in the main office area but, as working hours on these rosters generally did not change, the rosters were mainly used to “reference” leave periods and record overtime or absences. He said that Dick Stone introduced online rostering on 21 June 2019 which Mr Boateng could access through an online portal from 25 June 2019.

275    This evidence was not challenged in cross-examination. In answer to a notice to produce the rosters posted in the main office area, issued by the applicants dated 4 October 2019, Dick Stone replied that there were no documents to produce.

276    Although Mr Boateng did not see a roster on the premises, in the face of Mr Marler’s evidence I am not satisfied that rosters were not posted on the premises during Mr Boateng’s employment until December 2017. It does not matter whether he saw them. The obligation is to post them. The fact that 22 months after Dick Stone stopped posting rosters on the wall in the main office area it had nothing to produce does not establish that the rosters were not posted during the period from March 2016 until December 2017. In all likelihood, once the roster period had ended, the rosters were discarded.

277    I do not consider that making rosters available through an online portal discharges the obligation in cl 34.2. “Premises” is not defined in the Award. In its ordinary meaning it does not include a virtual environment. In its relevant sense the word is defined in the Macquarie Dictionary as “a house or building with the grounds, etc., belonging to it”. In its context in the Award, it must mean the building where the employees work. Dick Stone submitted that moving rosters to an online platform provided employees with convenient access to them. That may be so, but it is beside the point.

278    I conclude that Dick Stone contravened cl 34.2 by failing to post a roster on the premises from December 2017.

The superannuation issue

Was there an underpayment of superannuation?

279    Clause 30.2 of the Award provides that the employer must make superannuation contributions for the benefit of an employee as this will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation.

280    It was not in dispute that a charge is payable if superannuation at the requisite level is not paid on ordinary time earnings. If Mr Boateng was correctly classified as a Level 3 employee, it is also common ground that there was no underpayment. As I have found that he was a Level 4 employee, it is likely he was underpaid. But the evidence does not permit me to say by how much and I was invited not to determine the question at this stage of the proceeding.

Conclusions

281    In summary, I have come to the following conclusions.

282    First, the Regents Park establishment was not a “meat processing establishment”, as the applicants contended, but a “meat retail establishment”, as Dick Stone maintained.

283    Second, Mr Boateng was properly classified as a Meat Industry Level 4 employee, not a Level 3 employee, which was the level at which he was remunerated.

284    Third, Dick Stone failed to pay overtime rates to Mr Boateng for hours worked between 2 am and 4 am Monday to Saturday in contravention of cll 31.2(d) and 36.1(a) of the Award. Dick Stone did not convey to Mr Boateng its intention to incorporate overtime entitlements into his wages either in his contract of employment or in any other document and did not identify in his pay slips any amounts for overtime for hours worked under 50 hours a week. In these circumstances, it was not entitled to a set off.

285    Fourth, having regard to all relevant circumstances, Dick Stone contravened s 62 of the FW Act by requiring or requesting Mr Boateng to work 12 additional hours every week of his employment. That request was not reasonable.

286    Fifth, Dick Stone contravened s 125 of the FW Act by not giving Mr Boateng a Fair Work Information Statement before, or as soon as reasonably practicable after, he commenced his employment. I am not satisfied that a copy of the FWIS was included in the employment pack he received.

287    Sixth, in contravention of cl 5 of the Award, Dick Stone failed to ensure that copies of the Award and the NES were available to Mr Boateng during his employment either on a noticeboard conveniently located at or near the workplace or electronically.

288    Seventh, Dick Stone contravened cl 34.2 of the Award by failing to post a roster on the premises from December 2017.

289    As requested, I will require the parties to agree upon the orders giving effect to these conclusions and the reasons for them.

Associate:

Dated:    6 May 2022