Australasian Meat Industry Employees Union v Dick Stone Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 06 May 2022
• Neutral Citation: [2022] FCA 512
• Date: 06 May 2022
• Court: Federal Court

Federal Court of Australia

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

File number:	NSD 1099 of 2019
Judgment of:	KATZMANN J
Date of judgment:	6 May 2022
Catchwords:	INDUSTRIAL LAW — where company conducts business as a meat wholesaler but also engages in meat processing, whether premises it occupies are a “meat processing establishment” or a “meat retail establishment” within the meaning of those terms in the Meat Industry Award 2010 — where employee hired as a knife hand/labourer but where no such occupation mentioned in Award, what was his correct classification under the Award — where employee engaged to work 50 “ordinary hours” a week and pay slips only referred to overtime for working more than 50 hours, whether employer contravened National Employment Standards by not complying with obligations under Award to pay overtime rates for work outside the ordinary spread of hours or in excess of 38 hours a week — where employer paid a “blended rate” incorporating overtime rates for hours outside the ordinary spread prescribed by the Award but did not inform employee until nearly three years into his employment, whether employer entitled to set off payments of wages over Award amounts against any failure to pay overtime rates under Award — whether additional hours were “unreasonable” within the meaning of s 62 of the Fair Work Act 2009 (Cth) — whether employer contravened s 125 of the Act by failing to give employee a copy of the Fair Work Information Statement before, or as soon as reasonably practicable, after commencing employment — where Award and NES accessible on employer’s computers and employee’s mobile phone, whether employer in breach of the Award by failing to make Award and NES available to employee — whether employer failed to post rosters — whether employer underpaid employee superannuation
Legislation:	Fair Work Act 2009 (Cth) ss 44, 45, 61(1), 62, 64, 65, 125, 139(1)(e) Fair Work Regulations 2009 (Cth) reg 2.02 ; Federal Meat Industry (Processing) Award 2000 cll 3.4, 5.2 Federal Meat Industry (Retail and Wholesale) Award 2000 cll 3.20, 5.2 Federal Meat Industry (Smallgoods) Award 2000 cl 5.2 Meat Industry Award 2010 cll 2.2, 3.1, 4, 5, 19.1, 30.2, 31, 32.2, 34, 36, Sch B
Cases cited:	Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Award Modernisation [2019] AIRCFB 826 Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 Cory Bros & Company Ltd v Owners of the Turkish Steamship Mecca (The Mecca) [1897] AC 286 Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 Knysh v Corrales Pty Ltd (1989) 15 ACLR 629 Kucks v CSR Ltd (1996) 66 IR 182 Leeson v Leeson [1936] 2 KB 156 Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 Meatpak Pty Ltd t/as Holco Fine Meat Supplies v Moran [2005] FCAFC 111; 145 IR 248 Moree Plains Shire Council v Goater [2016] FCAFC 135; 14 ABC(NS) 255 Poletti v Ecob (No 2) (1989) 31 IR 321 Ray v Radano [1967] AR (NSW) 471 Re Walsh; Ex parte Deputy Commissioner of Taxation (NSW) (1982) 13 ATR 40; 60 FLR 355 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94; 210 ALR 190; 80 ALD 69 WorkPac Pty Ltd v Rossato (2020) 278 FCR 179 WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681; 392 ALR 39; 309 IR 89 ; Macquarie Dictionary (8th ed, Macquarie, 2020)
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	289
Date of hearing:	8–10 September 2021, 1 October 2021
Counsel for the Applicants:	Mr A M Slevin
Solicitor for the Applicants:	Segelov Taylor Lawyers
Counsel for the Respondent:	Mr M Seck
Solicitor for the Respondent:	McCabe Curwood Lawyers

ORDERS

		NSD 1099 of 2019
BETWEEN:	THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION First Applicant ; SAMUEL BOATENG Second Applicant
AND:	DICK STONE PTY LTD Respondent

order made by:	KATZMANN J
DATE OF ORDER:	6 May 2022

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...