1 Fair Work Act 2009 s.739 - Application to deal with a dispute Vadain Pty Ltd T/A Vadain v Construction, Forestry, Maritime, Mining and Energy Union (C2018/6558) COMMISSIONER HUNT BRISBANE, 31 JANUARY 2020 Alleged dispute about any matters arising under the modern award and the NES; [s146] – whether the Manufacturing and Associated Industries and Occupations Award 2010 or the Textile, Clothing, Footwear and Associated Industries Award 2010 applies to employees of a manufacturing enterprise – appropriate classification of employees under relevant award – whether employees work under direct or routine supervision per the classification – whether employees exercise discretion within their level of skills and training - whether employees assist in the provision of on-the-job training – whether employees are responsible for quality of their work – qualifications employees must possess to be properly classified under award [1] Vadain Pty Ltd T/A Vadain (Vadain) has applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute relating to the classification of several of its employees under the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) or the Textile, Clothing, Footwear and Associated Industries Award 2010 (the TCF Award). The Respondent to this dispute is the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Background to dispute [2] Vadain’s business is the manufacture of curtains. To-date, Vadain has applied the Manufacturing Award within its business and to its employees. During May 2018 the CFMMEU raised a dispute with Vadain regarding the application of the Manufacturing Award within Vadain’s business. The CFMMEU contended that the TCF Award applies to Vadain’s employees, and not the Manufacturing Award. In the alternative, the CFMMEU contended that Vadain had incorrectly classified several of its employees, who are members of the CFMMEU, under the Manufacturing Award. [3] Vadain maintained that the Manufacturing Award covers its enterprise, and all of its employees were and have been engaged in the correct classification. Vadain and the CFMMEU continued to discuss this matter between them throughout 2018 but could not resolve the dispute. [2020] FWC 487 DECISION [2020] FWC 487 2 [4] On 21 November 2018 Vadain lodged the present application to the Commission. On 11 December 2018 a conference was convened before me to attempt to resolve the issues between the parties. On 26 March 2019 a telephone conference was convened before me, but the dispute could not be resolved. During the conference of 26 March 2019 both parties indicated a desire for this matter to proceed to arbitration by consent. Both the Manufacturing Award and the TCF Award permit the Commission to arbitrate a dispute by consent. [5] Directions were set for both parties to file material in support of their positions and this matter was listed for consent arbitration before me. [6] Prior to the hearing there was some disagreement between the parties as to the appropriate questions for arbitration and some employees who had been part of the CFMMEU’s claim fell away from the claim. During the hearing the parties agreed upon the following questions for arbitration:1 Question 1: “What award applies to the employees?” Question 2: “What is the correct classification for Mohammed Hussaini under the applicable award?” Question 3: “What is the correct classification for Cyriaque Nkgraguhiga under the applicable award?” Question 4: “What is the correct classification for Pao Ze Vue under the applicable award?” Question 5: “What is the correct classification for Andrew Yang under the applicable award?” Question 6: “What is the correct classification for Kim Maria Laws under the applicable award?” [7] The CFMMEU proposed the following further questions for arbitration, which were not consented to by Vadain: “If any of the employees have been incorrectly classified under either the Manufacturing Award or the TCF Award, what is the appropriate date from which the correct classification should commence? And “If any of the employees have been incorrectly classified under either the Manufacturing Award or the TCF Award, what is the appropriate process for determining the calculation of any back pay arising from the incorrect classification?” [8] Those additional questions were discussed during the hearing. It was agreed that I would not consider those two additional questions as Vadain did not consent for them to be arbitrated. With the consent of the parties I agreed to note in my decision that in the event that I determined that any of Vadain’s employees should be re-classified, Vadain committed to participate in a further and separate process before the Commission to consider the [2020] FWC 487 3 appropriate commencement date for that re-classification and deal with any issues of back- pay.2 Site inspection and hearing [9] On 24 June 2019 I conducted a site inspection of Vadain’s workplace in Crestmead, Queensland. This matter was heard before me immediately following that site inspection, on 24 June 2019 to 26 June 2019. A further day of hearing was required on 6 August 2019 to conclude the CFMMEU’s evidence. On 5 September 2019 the parties returned to provide their closing submissions. Mr Alistair Smith of Counsel appeared on behalf of Vadain, instructed by Carter Newell Lawyers. Ms Vivienne Wiles, Senior National Industrial Officer appeared for the CFMMEU. [10] The following persons were called as witnesses for Vadain and gave evidence in respect of this matter: Ms Tessa Schouten, General Manager of Vadain; Mr Brian Foster, Production Manager of Vadain. [11] The following persons were called as witnesses for the CFMMEU and gave evidence in respect of this matter: Mr Cyriaque Nkeraguhiga, employee of Vadain; Ms Kim Laws, employee of Vadain; Mr Pao Ze Vue, employee of Vadain; Mr Andrew Yang, employee of Vadain; Mr Mohammed Hussaini, employee of Vadain; Ms Elizabeth MacPherson, Compliance Officer of the CFMMEU; Ms Vivienne Wiles, Senior National Industrial Officer of the CFMMEU. [12] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered. Evidence and submissions of the Applicant Evidence of Ms Tessa Schouten [13] Ms Tessa Schouten made two witness statements. Ms Schouten has been the Manager of Vadain since January 2017. She is responsible for overseeing Vadain’s operations, liaising with suppliers and customers, identifying and developing opportunities for Vadain to grow and assisting to resolve production issues, such as those arising from errors in supplied material or errors of Vadain’s employees. Vadain employs approximately 40 people and dispatches around 200 curtains per day. Vadain does not employ any human resources expert within its Australian operations; it seeks external advice for any complex human resources issues. [14] Vadain commenced operations in Australia during 2014. On or about 10 July 2014 Vadain purchased curtain manufacturing equipment from another business, Cardell Manufacturing Pty Ltd (Cardell), and made offers to all of Cardell’s staff to employ them. Ms Schouten stated that Cardell’s employees had been employed under the Manufacturing [2020] FWC 487 4 Award. At the time of Ms Schouten’s commencement with Vadain in January 2017, all production staff were employed at the ‘C13’ classification level under the Manufacturing Award. [15] To Ms Schouten’s knowledge, the CFMMEU first attended Vadain’s workplace on 26 February 2018, and after that date attended Vadain’s workplace approximately once per month. On 9 May 2018, the CFMMEU first informed Ms Schouten that it considered the TCF Award should be applied in Vadain’s workplace and Vadain’s employees were being underpaid. From June 2018 to October 2018 Ms Schouten corresponded with the CFMMEU and maintained that Vadain’s position, confirmed through external advice, was that the Manufacturing Award applied to its business and its employees were correctly classified as C13s. [16] On 13 November 2018 Ms Schouten received a letter from the CFMMEU demanding, amongst other things, that 10 of its members employed by Vadain be reclassified under either the Manufacturing Award or the TCF Award, and receive relevant amounts of back-pay. Upon receiving that letter, Ms Schouten formed the view that the dispute could not be resolved at the workplace level and Vadain commenced the present dispute. [17] On 1 January 2019 Vadain implemented a new pay structure for its employees, which provides for increased rates of pay per year of completed service with Vadain, up to four years. A table set out in Ms Schouten’s evidence is produced below: Years of employment Permanent Casual On commencement $19.47 $24.34 On completion of year 1 $19.69 $24.61 On completion of year 2 $19.95 $24.94 On completion of year 3 $20.22 $25.28 On completion of year 4 $20.55 $25.69 [18] Under the pay structure, an employee commencing employment with Vadain would be paid at the hourly rate for a C13 employee set out in the Manufacturing Award. Ms Schouten stated Vadain intended to increase the pay structure set out above commensurate with the annual increases to the C13 wage set out in the Manufacturing Award. The rates above do not reflect the wage increases made on 1 July 2019. [19] Vadain’s production team employees require work rights in Australia, but do not need to have any trade or other qualifications. Vadain trains new employees in-house and allocates them to certain tasks and provides further training depending on their aptitude during in-house training and their job performance. In Ms Schouten’s role she observes tasks performed by Vadain’s employees. It is her view that none of Vadain’s production staff involved in this matter are required to: Exercise discretion, initiative or judgement in the performance of their tasks; Perform complex tasks or work from complex instructions and procedures; Be responsible for assuring the quality of their own work; Co-ordinate work in a team environment; Investigate causes of quality deviations or make recommendations regarding preventative action; [2020] FWC 487 5 Record detailed information on, or recommend improvements to, production and/or quality; Take a co-ordinating role for a group of workers or in a team environment; Exercise advanced equipment maintenance and problem-solving skills. [20] Ms Schouten stated that the production employees work under the supervision of Mr Brian Foster, Production Manager, and Mr Nelson Vong Yang, Assistant Production Manager. Mr Foster and Mr Vong Yang are responsible for allocating and prioritising work, managing and supervising all production employees and controlling the overall quality of all products. [21] Ms Schouten stated that the training of other staff is not a core part of the role of any of the production employees involved in this matter, and to the extent that any production employees might on occasion be asked to assist with training other production employees they would do so under the supervision of Mr Foster. [22] Ms Schouten gave evidence about several different processes completed as part of Vadain’s production line and the complexity of tasks completed by Vadain’s production employees. Pleats [23] Ms Schouten stated that different types of curtain pleats are formed in different ways, but all pleats are formed before a curtain reaches the packing station. Packers must check that the curtain’s pleat matches the pleat type in the customer order docket. [24] A single or double pinch pleat is formed using an automatic, laser-guided pleating machine. The operator is only required to feed the right amount of fabric into the machine at a time, at the machine’s instruction. Triple pinch pleats are formed using a different automatic machine, but still requires only that the operator feeds the correct amount of fabric into the machine at one time. For double and triple pinch pleats, the packers must check that no pleats have come ‘unstuck’, and if they find an unstuck pleat, they fold the pleat back into shape and use the table-mounted spot tacker to tack the pleat together again. [25] Pencil and knife pleats are formed by sewing tape along the back and top of a curtain. The tape has strings passing through it, which is pulled tight by production employees at the packing station to form pencil pleats. No further step is required for pencil pleats. For knife pleats, the curtain goes back to a machinist who sews the pencil pleats down to one side, forming knife pleats. Sheer cutting [26] Sheer cutting requires a production employee to consider the measurements set out in a customer order docket, measure out the relevant piece of fabric and make a straight cut of the fabric at the correct length. Ms Schouten stated that there are simple tricks which are shown to employees to make it easier to cut straight, such as pulling on a thread or following cutting guides which are built-in to the cutting tables on Vadain’s workshop floor. Sheer cutters may also need to take the grain of the fabric into account when cutting.3 [2020] FWC 487 6 [27] Ms Schouten stated that production employees do not generally need to consider the drop of the curtain at the sheer cutting stage, and stated that it is unusual that an employee would be required to take any patterns in the fabric into account at the sheer cutting stage. Ms Schouten considered that sheer cutting is not a complex task, although agreed in cross- examination that a certain level of aptitude is required to perform sheer cutting with the necessary precision and speed.4 During the hearing, Ms Schouten stated that Vadain expects each of its sheer cutters to cut 300 metres of fabric per day, which is approximately 60 sheer cuts.5 Common skills and relative complexity of curtain manufacturing [28] Ms Schouten stated that several skills are common amongst all production employees that work in roles requiring sewing, including adjusting a machine’s tension and speed, sewing in straight lines, replacing needles, rethreading machines and sewing care labels into products. [29] Ms Schouten stated that cutting fabric in a straight line to a measured length is a basic skill. Further, Vadain’s production line environment means that production employees are required to use only one set of skills at a time. [30] Ms Schouten stated that while all production employees are responsible for checking the quality of their own work, they are not solely responsible for the quality of a finished product. Vadain expects that the quality of a product will be checked at each stage of the production line, which means that each employee’s work is checked by other employees later in the production process. Whenever any production employee identifies a problem, their only task is to draw attention to the problem by placing the fabric on the ‘problem rack’ or by raising the problem directly with management, usually Mr Foster or Mr Vong Yang. Ms Schouten stated that quality checking itself is not complex, requiring only checking that the dimensions, heading and hook type of a product match the order, and checking the product for fabric flaws. [31] During cross-examination Ms Schouten stated that Vadain does not expect all employees to go over fabric with a fine-toothed comb; a curtain is only thoroughly quality- checked at the packing area station at the end of the production line. If an employee identifies a problem anywhere in the production line, they should place the problematic fabric on one of the ‘problem racks’ or flag it with Mr Foster or Mr Vong Yang. Ms Schouten stated that if there was an obvious error, such as a step of production which was only half-done, an employee may take the relevant order back to the previous production station to be completed.6 [32] Ms Schouten stated that curtain manufacturing, particularly in production line environments similar to Vadain’s workshop, is much less complex than the manufacture of clothing or footwear. [33] Ms Schouten gave examples of several more complex sewing skills that Vadain’s employees are not required to perform, such as: Understanding and modifying patterns of the type used in clothing; Formulating design processes and designing patterns or garments; Following complex sewing instructions; [2020] FWC 487 7 Joining angled or curved pieces of fabric; Attaching elastic, buttons, grips or zippers; Embroidering fabric; Folding or stretching fabric during sewing to produce features such as darts or gathering. [34] In re-examination, Ms Schouten stated that each of the separate tasks in each of its production stations are less complex than making an entire curtain.7 Mr Brian Foster [35] Ms Schouten stated that Mr Foster has held the Production Manager position within Vadain’s business for approximately five years, and he worked for Cardell before commencing employment with Vadain. Ms Schouten stated that Mr Foster spends much of his time on a mezzanine level above Vadain’s workshop floor, which allows him to oversee and directly supervise the production employees, all of whom work on the workshop floor level. Ms Schouten stated that Mr Foster identifies issues in the production process from his mezzanine vantage point. She has observed that Mr Foster typically spends about 90 per cent of his time on either the mezzanine level or the workshop floor level, which Ms Schouten counted as being ‘on the floor’, and between 70 – 80 per cent of his time walking around the workshop floor, supervising and directing the production process. The remaining 10 per cent of Mr Foster’s time is spent in Vadain’s office areas.8 [36] Ms Schouten stated that Mr Foster is required to: Assist in the recruitment of new production employees; Complete in-house induction training with all new production employees; Provide on-the-job training for all new production employees and employees shifting to a new production process; Co-ordinate work performed by production employees; Determine how to deal with production issues and sort items on the ‘problem rack’ into items which can be fixed by production employees and items which must be referred to office staff; Investigate quality deviations and recommend preventative actions, including conducting ‘spot checks’ of orders at various stages of the production line;9 Record information regarding production quality and make recommendations for improvement; Perform machine repairs and maintenance within his level of competence; Directly supervise all production staff to ensure output and quality remains at acceptable levels. [37] During cross-examination, Ms Wiles asked Ms Schouten about how Mr Foster supervises employees. Ms Schouten confirmed that Mr Foster does not stand next to employees as they work, but Ms Schouten considered that Mr Foster’s oversight of the workshop floor would qualify as ‘direct supervision’.10 Mr Nelson Vong Yang [38] Ms Schouten stated that Mr Nelson Vong Yang has been employed by Vadain for about four years and was previously part of the production team. Within the last 12 months [2020] FWC 487 8 Mr Vong Yang has filled the position of Assistant Production Manager. Mr Vong Yang spends approximately 80 per cent of his time on the production floor assisting and directly supervising production employees. The remainder of Mr Vong Yang’s time is usually spent on the vertical cutting machine assisting the production process or in Vadain’s office.11 Ms Schouten stated that Mr Vong Yang is required to: Complete the induction training of new production employees if Mr Foster is not available; Provide on-the-job training for all new production employees and employees shifting to a new production process if Mr Foster is not available; Co-ordinate work performed by production employees; Investigate quality deviations and recommend preventative actions; Perform routine machine repairs and maintenance; Supervise all production staff to ensure output and quality remains at acceptable levels; Follow up on specific orders that need extra attention to be dispatched on-time. Mr Pao Ze Vue [39] Mr Ze Vue commenced employment in Vadain’s production team on 11 May 2017. He works mostly in the ‘fabric intake’ process of the production line, and very occasionally assists with the ‘dispatch’ process. [40] Ms Schouten stated that Mr Ze Vue’s fabric intake role requires him to take racks of delivered fabric from the delivery area of Vadain’s workshop to his work area on the workshop floor and check newly-delivered fabric against customer orders in Vadain’s order- tracking system. If the delivered fabric matches the customer order, Mr Ze Vue then: Enters the order data into a spreadsheet in the Microsoft Excel program, which calculates the number of ‘drops’ for each location in the production line. It is noted that a ‘drop’ is a piece of fabric which has been cut to the correct size to work with; Prints a customer order docket; Highlights any important features on the customer order docket and adds the planned dispatch date to the docket; Marks the order as ready for production within Vadain’s order-tracking system; and Moves the fabric to the cutting area of the workshop floor. [41] Ms Schouten stated that if the delivered fabric does not match any customer order, Mr Ze Vue enters the details of the problem into a template document and places the problem fabric onto the appropriate problem shelf. Mr Ze Vue is not required to investigate the causes of an identified problem or recommend any preventative actions or recommendations for improvements. [42] In the case that a customer order is placed on hold before the relevant fabric has been cut, Mr Ze Vue moves the fabric to the ‘holding shelves’. If the fabric has already been cut, then Vadain’s office employees move the cut fabric to the holding shelves. In either case, if and when a hold is lifted, Mr Ze Vue retrieves the relevant fabric and returns it to the appropriate place in the production line. [2020] FWC 487 9 [43] In the case that a customer orders alteration of fabric during production, Mr Ze Vue is required to check the relevant order docket to ensure that the requested alteration can be performed. If Mr Ze Vue determines that the requested alteration is possible, Mr Ze Vue takes the fabric to the relevant station in the production line for another production employee to perform the alteration. If Mr Ze Vue identifies any problems with the requested alteration, he enters the details of the problem into a ‘template’ document and produces the fabric and the template document to Vadain’s office employees, who review the problem identified by Mr Ze Vue and the template document, before corresponding with the relevant customer. [44] Ms Schouten stated that Mr Ze Vue is not required to co-ordinate the work of production employees or determine the priority of Vadain’s orders, other than for alterations. [45] Ms Schouten was aware of only one occasion when Mr Ze Vue had been required to train other employees. On that occasion, Mr Ze Vue trained two of Vadain’s office employees, Ms Emilee Locking and Ms Mai Song Yang, in the fabric intake process over approximately eight hours. Ms Schouten stated further that Ms Locking and Ms Song Yang had completed the majority of their training before Mr Ze Vue commenced employment with Vadain.12 [46] Ms Schouten gave evidence in reply to Mr Ze Vue’s evidence about the nature of his role. Ms Schouten stated that Mr Ze Vue does not work in dispatch ‘as required’ and did not recall Mr Ze Vue having worked in dispatch for more than one or two days. Ms Schouten conceded that she was on maternity leave for a period during 2017 and was therefore not aware whether Mr Ze Vue spent any time working in dispatch during the period of her leave.13 [47] Ms Schouten noted Mr Ze Vue’s evidence that he is required to consider information set out in the ‘notes box’ of customer orders. Ms Schouten stated that Mr Ze Vue’s only task in relation to that information, which has been entered by Mr Foster, is to transfer the information from the notes box to customer order dockets which Ms Schouten did not consider required Mr Ze Vue to ‘adjust’ an order himself.14 In cross-examination, Ms Schouten conceded that Mr Ze Vue may also change a customer order on oral instructions of office staff or Mr Foster.15 [48] Regarding Mr Ze Vue’s evidence that he had been asked what he would recommend to assist production work flow and inefficiency, Ms Schouten stated that Mr Ze Vue was only asked about those matters because Mr Ze Vue was falling behind in his work at the time and Vadain attempted to help Mr Ze Vue improve his own efficiency. In cross-examination, Ms Wiles put to Ms Schouten that there had been major problems with inefficiency in the fabric intake area when Mr Ze Vue commenced with Vadain and there had been a backlog of work when he started. Although Ms Schouten was on maternity leave when Mr Ze Vue commenced work at Vadain, she denied that there had been ‘major problems’ with the fabric intake area and there was a backlog of work when Mr Ze Vue commenced, but conceded that there was always room for improvement, and some of the area’s equipment was outdated when Mr Ze Vue commenced.16 [49] Ms Schouten stated that Mr Ze Vue is not required to consider how curtains sent back for alterations may be altered. Mr Ze Vue’s only task with alterations is to check that the curtain sent back matches the description in the customer order docket. Only if an alteration [2020] FWC 487 10 is obviously impossible, such as making a curtain wider, might Mr Ze Vue determine that such an alteration is impossible.17 [50] Ms Schouten stated Mr Ze Vue was not asked to create ‘problem templates’, which existed prior to Mr Ze Vue’s employment. Ms Schouten accepted that Mr Ze Vue occasionally modifies existing problem templates to deal with new problems.18 [51] Ms Schouten noted Mr Ze Vue’s evidence about other employees approaching him in relation to fabric shortages. Ms Schouten stated that Vadain has instructed Mr Ze Vue to refer any such questions to Mr Foster or Mr Vong Yang and not deal with them himself. Ms Schouten agreed that Mr Ze Vue often attempts to use his initiative to resolve production problems. However, it can be counter-productive if Mr Ze Vue attempts to deal with such problems at the expense of his assigned tasks.19 [52] In cross-examination, Ms Wiles put to Ms Schouten that Vadain’s business had increased within the last six months and the workload of Mr Ze Vue’s fabric intake role had consequently increased. Ms Schouten stated that Vadain’s business had shifted to taking more commercial orders and receiving more consignment stock, but she did not agree that Mr Ze Vue’s workload had necessarily increased. Ms Schouten stated that occasionally an extra person is needed in the fabric intake area to assist Mr Ze Vue, but she attributed that to inefficiency, rather than an increased workload.20 [53] In cross-examination, Ms Wiles put to Ms Schouten that since the CFMMEU had raised the skill level disputes in this matter, Vadain had consciously limited Mr Ze Vue’s work tasks to make it appear that he has less responsibility and skill than he in fact has. Ms Schouten denied limiting Mr Ze Vue, and stated that she considered Mr Ze Vue to be very intelligent and have more skills than Vadain requires of him in his role, but noted Vadain’s problems with Mr Ze Vue exercising his initiative in a counter-productive manner.21 Mr Andrew Yang [54] Mr Andrew Yang commenced employment in Vadain’s production team on 18 July 2017. Mr Yang primarily works at the ‘sheer cutting’ station in the production line, although occasionally he works at the ‘packing’ station. Mr Yang very rarely works at the ‘panel cutting’ station as he is not very quick at panel cutting and is better suited to other work:22 [55] Sheer cutting requires Mr Yang to perform the following tasks: After checking the customer order attached to a particular roll of fabric, Mr Yang spreads the roll of fabric onto a cutting table and checks the fabric for flaws. If Mr Yang identifies a flaw, he places the fabric on the ‘problem rack’ and attaches a note to the fabric describing the flaw; If the fabric has no flaws, Mr Yang measures the fabric for cutting based on the applicable order and using rulers and cutting guides built-in to the cutting tables. Mr Yang updates Vadain’s order tracking system to show the order as ‘in production’; Mr Yang cuts the fabric the required size and folds it and places it on a trolley to be moved to the next stage of production. For most fabrics, Mr Yang creates a straight, guiding line within the fabric by pulling a thread in the fabric and cutting along that line. Ms Schouten gave further evidence about sheer cutting, which is set out above at [26] – [27]; [2020] FWC 487 11 [56] Packing requires Mr Yang to perform the following tasks: Mr Yang must check that the final product matches the customer order docket, which requires Mr Yang to measure the drop and width, check for flaws and cut loose threads. If Mr Yang identifies any problems, he places the product on the ‘problem rack’; For ‘pencil-pleat’ or ‘knife-pleat’ orders, Mr Yang pulls the wires within the tape on the back-side of the curtain to the correct width and spreads the pleats out evenly. If a pleat has not been formed properly and can be rectified by Mr Yang, he uses a table-mounted ‘spot tacker’ to tack a pleat back into place. Ms Schouten gave evidence about the different types of curtain pleats produced at Vadain, which is set out below at [23] – [25]; If the finished product matches the customer order docket, Mr Yang folds the product, hangs it on a hanger and places the hanger and curtain within a plastic sleeve. The entire package is then weighed and hung on a rack awaiting dispatch. [57] Panel cutting requires Mr Yang to perform the following tasks: After checking the customer order attached to a particular roll of fabric, Mr Yang spreads the roll of fabric onto a cutting table and checks the fabric for flaws. If Mr Yang identifies a flaw, he places the fabric on the ‘problem rack’ and attaches a note to the fabric describing the flaw. If there are no flaws in the fabric, Mr Yang updates Vadain’s order tracking system to show the order as ‘in production’; If the fabric is patterned, Mr Yang checks if the pattern ‘repeat’ in the order matches the pattern in the fabric. If the pattern does not match the order, Mr Yang must calculate the correct size to cut the fabric to, otherwise no cut needs to be done. After calculating any required cuts, Mr Yang uses an ‘automatic cutter’ to cut the fabric, and then folds the fabric and places it on a trolley to be moved to the next stage of production; [58] Ms Schouten responded to Mr Yang’s evidence about the nature of his role. Ms Schouten agreed with Mr Yang’s evidence that Vadain has no manual or written guide for sheer cutting, but clarified in re-examination that all of the information required to perform a sheer cut is on the customer order docket, and any manual that Vadain could produce for sheer cutting would be less than a page long. Ms Schouten also noted that its employees have many different languages as their first language and not all of them can read English.23 [59] Ms Schouten stated that sheer cutting only requires Mr Yang to review the dimensions described in a customer order docket and cut the relevant fabric to the required dimensions. Mr Yang is not usually required to do anything to the fabric’s drop except in the unusual case that the drop is very long. If there is unusual fabric which may respond differently to being cut, a test piece is used to perform a practice sheer cut.24 [60] Ms Schouten agreed with Mr Yang’s evidence that it took him seven months to master sheer cutting techniques and to increase the speed of his sheer cutting enough to keep up with Vadain’s production line. Ms Schouten stated that seven months is an extraordinarily long time for someone to master sheer cutting, and would ordinarily take no more than two weeks for a person to master sheer cutting.25 [2020] FWC 487 12 [61] During cross-examination, Ms Schouten clarified that Mr Yang and other production employees are not required to look for flaws or faults in fabric pieces. Vadain expects that the fabric manufacturer has already checked fabric for flaws. However, if any employee notices a flaw, it is expected that they pull the fabric off of the floor and place it on a problem rack.26 Mr Cyriaque Nkeraguhiga [62] Mr Cyriaque Nkeraguhiga commenced employment with Vadain on 10 August 2016. He primarily works in the ‘packing’ station and performs the tasks set out above at [56]. Mr Nkeraguhiga previously worked as a sewing machine operator (a machinist) sewing ‘side seams’, but was moved to the packing station as his machine skills were not as developed as Vadain’s other machinists. Occasionally, Mr Nkeraguhiga is directed to sew side seams using the sewing machines which requires him to perform the following tasks: Fold the sides of the fabric by four centimetres and feed the folded fabric through the sewing machine to create a side seam, and cut the thread after completing the side seam; Place the completed product in a bucket for collection and transport to the next station in the production line; Use an air hose to blow dust off of his sewing machine at the end of the day. [63] Ms Schouten stated that Mr Nkeraguhiga is usually required to do side seams only when there is a large order, and most large orders involve only one type of fabric. Mr Nkeraguhiga is not ordinarily required to perform tasks that the other machinists perform, such as changing the machine’s tension or replacing needles and thread. [64] Ms Schouten responded to Mr Nkeraguhiga’s evidence about his experience and the nature of his role, and stated: Ms Schouten was unaware that Mr Nkeraguhiga held any qualifications at all and in any event, Mr Nkeraguhiga is not required to hold any qualifications for his role; Around mid-2018 Vadain decided to move Mr Nkeraguhiga to the packing area as his machining skills were not at the standard required by Vadain, not because Mr Nkeraguhiga expressed a desire to work in the packing area; There are six sewing machines in the side seam area, not four as stated by Mr Nkeraguhiga; Ms Schouten was not aware of and could not verify that Mr Nkeraguhiga had trained any other employee in side seams. It is unlikely that Vadain would have directed Mr Nkeraguhiga to train an employee in side seams given that Mr Nkeraguhiga’s side seams were not up to standard. [65] In cross-examination, Ms Schouten agreed that Mr Nkeraguhiga had been moved to the packing area full-time after returning from a period of annual leave, and it had not been explained to him why he had been moved to the packing area full-time.27 Ms Wiles put to Ms Schouten that Mr Nkeraguhiga had not been counselled about his machinist work before moving to the packing area and put that it was coincidental that Mr Nkeraguhiga had been moved to packing full-time around the same time as the CFMMEU commenced its present dispute with Vadain. Ms Schouten stated that the changes to Mr Nkeraguhiga’s work had nothing to do with the CFMMEU’s dispute.28 [2020] FWC 487 13 Mr Mohammed Hussaini [66] Mr Mohammed Hussaini commenced employment with Vadain on 29 September 2015 and exclusively works as a machinist. Mr Hussaini performs multiple machining tasks and his role generally involves the following: Sewing side seams, different types of pleats, rod pockets and other machining tasks; Fixing mistakes made by other machinists; Sewing care labels into curtains; Adjusting the machine’s tension depending on the type of fabric for the next order; Adjusting the machine’s speed for more fragile fabrics. Mr Hussaini sews using the machine’s highest possible speed and only lowers the speed for types of fabric that necessitate a slower speed; Folding completed curtains and placing them onto a trolley for transport to the packing area; Changing the machine’s needles and replacing the thread, both of which must be done about twice per week; Use an air hose to blow dust off of his sewing machine at the end of the day. [67] Ms Schouten agreed with Mr Hussaini’s evidence that other employees ask for his assistance in fixing mistakes. Ms Schouten stated that most of the errors that Mr Hussaini fixes are ‘pinholes’ left in fabric by other employees when sewing without thread. Fixing those pinholes requires Mr Hussaini to sew in a straight line over the pinholes. During the hearing, Ms Schouten stated that she did not consider Mr Hussaini’s work to fix mistakes made by others to require a particularly high skill level, and denied that Mr Hussaini fixes problems with curtain eyelets or performs any alterations.29 Ms Kim Laws [68] Ms Kim Laws commenced employment with Vadain on 6 December 2017. At the time Ms Schouten gave her statement, Ms Laws had been absent from work for approximately 12 months while in receipt of workers’ compensation. Before her injury, Ms Laws worked primarily as a sheer cutter and performed the tasks set out above at [26] – [27]. Ms Schouten stated that Ms Laws attempted to return to work on suitable duties as a machinist and in the packing area. However, all positions tended to aggravate Ms Laws’ injury and she has not yet returned to work. [69] Ms Schouten responded to Ms Laws’ evidence about the nature of her role, and stated: There is no sheer cutting machine at Vadain; sheer cutting is only done by hand with scissors; Sheer cutters do not generally need to take into account any patterns in the fabric; The measurement of the drop and the sheer cut does not need to be ‘100% accurate’ at the sheer cutting stage. Except in cases where the drop is very long, sheer cutters do not need to do anything to the drop;30 Sheer cutters do not need to take the selvedge into account, and it is Vadain’s usual practice for the selvedge to be cut off. It is noted that the meaning of ‘selvedge’ is discussed in detail in Ms Laws’ evidence below at [190]; [2020] FWC 487 14 Sheer cutters do not need to meet the exact specifications in the customer order. Fabric is cut to the precise length required at the vertical cutting station, and adjustments to the width of the fabric can be made at the pleating station. [70] In cross-examination, Ms Wiles put to Ms Schouten that she was incorrect that any fabric patterns do not need to be considered during sheer cutting. Ms Schouten estimated that only 15 to 20 per cent of fabrics are patterned and maintained that only very rarely would a sheer cutter need to take a pattern into account when cutting.31 Ms Schouten agreed that Ms Laws decides the best way to make a sheer cut, including considering the type of fabric she is cutting.32 Evidence of Mr Brian Foster [71] Mr Foster was employed by Cardell as Head of Production for approximately two years before Vadain took over the business, where he then became Production Supervisor. Around mid-2018, Mr Foster’s position title changed to his current title of Production Manager, although Mr Foster’s duties of employment did not change with his position title. Mr Foster is a member of the CFMMEU. [72] Mr Foster’s duties of employment include: Assigning production employees to production stations for each day. While most production employees usually work at the station they are most suited to and do not change stations from day-to-day, a limited number of production employees ‘float’ between different production stations; Prioritising work to be completed within the production line; Training all new production employees and existing production employees if they shift to a different station in the production line, and determine whether an employee is competent to work at a particular station; Co-ordinating the work of production employees to ensure production pace, quality and output remain at acceptable levels; Resolving production issues and sorting items on the problem racks between items that can be fixed by production employees and items that must be referred to Vadain’s office; Investigating causes of deviations in quality and deciding on appropriate remedial or preventative action; Recording detailed information on, and recommending improvements to, production processes and output quality; Performing maintenance and repairs on Vadain’s machinery, as Mr Foster is competent to perform; Managing stock and controlling stock levels; Scheduling ‘project orders’ within Vadain’s production schedule and ensuing that expected completion dates can be met and liaising with Vadain’s office about achievable production timeframes. Direct supervision of production employees [73] Mr Foster stated that he directly supervises all of Vadain’s production employees and is required to know everything that is happening on Vadain’s production line. [2020] FWC 487 15 [74] When Mr Foster arrives at work he conducts a walk-through of the production floor to track the progress of Vadain’s different orders. Mr Foster uses software provided by Vadain to assist him in tracking the progress of different orders. [75] Mr Foster stated that the work performed by the production employees is very repetitive, and most orders can be completed without deviating from normal processes. Mr Foster’s standard supervisory processes are as follows: Mr Foster spends about 85% of his time on the production floor overseeing the production line and ensuring Vadain’s orders are delivered on time. Mr Foster finds it most effective to supervise production and ensure each production employee is being fully utilised, and he does this by walking the production line; Mr Foster spends the remaining 15% of his time on the workshop’s mezzanine level, from which he can oversee the entire workshop floor and can quickly identify any bottlenecks or problems developing in the production line; Production employees are expected to review the due date of each order listed on the relevant customer order docket and prioritise their own work as necessary. However, Mr Foster often needs to remind employees about which orders are most urgent. If any orders are in danger of becoming overdue, Mr Foster prioritises those orders by directing production staff to cease working on their current work and to work on the orders that Mr Foster identifies. [76] Where an order requires some deviation from normal processes, Mr Foster takes additional steps to supervise the order: Mr Foster makes written notes on the customer order docket instructing production employees on how the order is to be completed. Alternatively, Mr Foster may write on the docket instructing production employees to refer the order to Mr Foster after a particular production step is completed; When the fabric arrives at the cutting tables, Mr Foster goes to the workshop floor and discusses his written instructions with the relevant production employee/s. Depending on the nature of the order, Mr Foster may collect the fabric after it has been cut, and then deliver it to the next station and again discuss the process to be completed by the relevant employee/s; Mr Foster often checks the quality of the completed work on the relevant order after passing through each station. [77] Answering questions from Ms Wiles during the hearing, Mr Foster described his tasks day-to-day which he considered to be direct supervision, as follows:33 “I walk around. I tell somebody that they need to do this rack, or move this rack to the next station. If somebody has a question, I am there beside them to answer the question. If I'm not beside that person and something pops up out of the ordinary where they don't understand a ticket or they have a problematic fabric, they put their hand up straightaway and call me. I go down and I help them with their issue. I help move cartons to the next station. I am walking around training people from time to time. I am fixing machines. I am doing all these sorts of things and to me that's direct supervision.” [2020] FWC 487 16 [78] Ms Wiles put to Mr Foster that the above actions do not meet the definition of direct supervision, and Mr Foster cannot directly supervise employees when he may only talk to each production employee once or twice per day. Mr Foster maintained that he directly supervises production employees as he walks around the workshop floor, moves orders and fabric around stations and checks employees’ output figures.34 In re-examination, Mr Foster stated that his experience with curtain manufacturing and Vadain’s processes allows him to directly supervise production employees and the production process generally while walking around the workshop floor.35 [79] Ms Wiles put to Mr Foster that she and Mr Andrew Hack, Organiser, had met with him on 8 May 2019 during a workplace inspection, and Mr Foster had agreed to Ms Wiles that Vadain’s employees are not directly supervised. Ms Wiles’ evidence of this discussion is set out below at [246] – [249]. Mr Foster recalled meeting with Ms Wiles and Mr Hack that day, but could not recall making such a statement to Ms Wiles.36 When I put to him that there is a distinction between being unable to recall a statement, and denying a statement, he answered that he could not recall the statement. [80] During cross-examination Ms Wiles put to Mr Foster that production employees make decisions on the best way to undertake their work, which Mr Foster disagreed with. Mr Foster maintained that production employees simply have to follow Vadain’s production procedures, although he conceded that sheer cutters may need to select the correct process to achieve a straight cut and may need to consider the type of the fabric when making a sheer cut.37 [81] During re-examination, I asked Mr Foster whether he thought he either directly or routinely supervised employees, as follows:38 Commissioner: “You've got a big job. If [Mr Vong Yang] is on the floor all of the time, and I learned yesterday, doesn't have anywhere to sit. So [Mr Vong Yang’s] not looking at computers like you are, and your evidence is that in your opinion, [Mr Vong Yang’s] doing a bit of both, direct and routine supervision? Mr Foster: Yes. Commissioner: What are you doing? Are you doing direct and routine supervision? Mr Foster: I believe I've doing direct supervision with routine inspections at departments as the product is flowing through the factory. Commissioner: So, you're directly supervising 38 people on the floor? Mr Foster: That's in my opinion, yes. Commissioner: They're sometimes putting their hand up asking for you to check something? Mr Foster: Yes, they put their hand up and they'll shout Brian and wherever I am in the factory at that given time I then go to that employee. [2020] FWC 487 17 Commissioner: The dispatch worker will get on and do their job; they'll know what needs to go out? Mr Foster: Yes, it's all - once a carton is in plastic and is placed onto a hanging rack, once the rack is full, it's pushed towards the roller door, the middle roller door and then the person in dispatch will take that full rack up to the closest roller door to the office where his computer is and he'll send that product out. Commissioner: He'll largely do that without too much intervention from you, would he? Mr Foster: No, he's been shown the process, he's been shown the procedure, he's well aware of what's expected of him and it's only if he encounters a problem or something out of the ordinary that he'll contact me. Commissioner: What about the two ironers? How much direct supervision would you or Nelson - - - Mr Foster: Quite a lot because they're new to our factory. Commissioner: So you need to go and directly supervise ironing, on occasions, do you? Mr Foster: Yes. Commissioner: What would you do? Mr Foster: So I can give them direction as to what fabric needs more attention than other fabrics, regarding to steam and ironing. I can say this one - don't iron this fabric, just put it straight up onto the rack. Because, as they're new to our factory, their speed isn't to the speed that I would hope to get them to. They're improving as time is passing, but we have a number of packers at the packing department that are packing and if they don't get supply of the product, they run out of work. So it's the ironer's responsibility to ensure that they maintain the speed and keep those people earmarked.” Problem racks [82] Mr Foster stated that production employees are not required to solve problems with an order themselves. Production employees only need to quality-check orders for any problems and if they identify a problem, place the problematic order on one of the three problem racks on the workshop floor. Production employees may also leave the fabric to one side and raise it directly with Mr Foster when he next passes that employee’s station. [83] Mr Foster described each of Vadain’s three problem racks, as follows: The first problem rack is located near the panel cutting station on the workshop floor. If a problem is encountered in any of the initial stages of production (before an order reaches the vertical cutting station) an employee places the order on this [2020] FWC 487 18 first problem rack and completes a problem order template document describing the problem, which Mr Foster reviews along with the fabric; The second problem rack is located near the vertical cutting station. If an employee identifies any problems in the fabric or fabric’s dimensions at this station they place the fabric on the second problem rack; The third problem rack is located near the packing station. Employees at the packing station are responsible for the final quality checks on normal orders. If an employee identifies a problem at this station, they are required to write the problem on the customer order docket and place the fabric on the third problem rack. [84] Mr Foster is responsible for checking items on the problem rack and considering how identified problems might be resolved. At around the start of 2019, one of Vadain’s more experienced production employees, Ms Chiu Kam Lin (known as “Lourie”) started to assist Mr Foster with solving problems on the third problem rack. Mr Foster stated that Lourie assesses problem items and considers whether she can fix the problem herself, and if so, may simply fix the problem. If Lourie identifies any further, unidentified problems she asks Mr Foster whether she can fix those further problems as well. If Lourie identifies a flaw that she cannot fix, such as a fabric flaw, Mr Foster raises the problem with Vadain’s office staff. Quality control [85] Mr Foster stated he designed all of Vadain’s quality control procedures. He stated that most production employees are not required to conduct their own quality control processes. The main quality control processes are undertaken by production employees at the packing station, and include: Measuring the dimensions of a curtain against the dimensions specified in the customer order docket; For pairs of curtains, checking that both curtains of the pair are present; Checking that the correct heading has been used, such as rod pockets or different types of pleats; Checking that any pleats have been correctly formed and spaced correctly and using the spot tacker to correct any pleats that have come loose; Checking that the correct hook type has been used and the hooks have been placed correctly; Trimming any loose threads; Inspecting the entire curtain for any visible flaws; Vadain records which employee packs any given orders and if a problem is later identified with a packed order, Vadain can address the problem with the employee who packed the order and ensure they are performing their quality check correctly. [86] Mr Foster conducts spot checks of curtains that have passed through the main quality control at the packing station to ensure that the packing production employees are conducting their quality checks to the appropriate standard. [87] For particularly large orders, Mr Foster checks the quality of work at multiple stages along the production line. He also takes additional steps with production employees to produce ‘test pieces’ at each stage of production so that when work on the order is commenced, Vadain’s machines and the production employees are already set to handle the order correctly. Mr Foster takes these additional supervisory steps for every large order. If [2020] FWC 487 19 Mr Foster is not at work when a large order passes through the production line, Mr Foster instructs Mr Vong Yang to take similar supervisory steps, or the order is delayed until Mr Foster’s return. [88] In cross-examination, Mr Foster stated that production employees are only required to perform limited quality checks as an order passes though their station, and the checks that they perform depend on the station. For example, sheer cutters, who must spread a piece of fabric out on their sheer cutting table, are expected to make a quick visual check for flaws and to confirm that any pre-existing flaws marked by the fabric manufacturer have been described correctly. However, machinists do not spread an entire fabric out before them and are not expected to visually check an entire piece of fabric for flaws.39 Employee training [89] Mr Foster stated that after Vadain took over Cardell’s business, he trained all of Vadain’s production employees in their various positions and established a set of work expectations for all of the production employees at that time. He stated that Vadain’s production employees are presently trained by the following general process: Firstly, Mr Foster works with the new employee on a trial shift. Depending on the station at which the new employee is earmarked to work at, Mr Foster shows them the relevant machinery, how to operate that machinery, the finished product after a curtain passes through their station and how to use any measuring tools required in their role; Mr Foster then pairs the new employee up with another production employee that is experienced at the particular station. Mr Foster noted that English is not the first language of many of Vadain’s production employees, and Mr Foster attempts to find a ‘buddy’ for the new employee who shares a language with that employee; The new employee watches their buddy work on the relevant station for about 30 minutes. The new employee then practices at a station next to their buddy using scrap fabric for 30 minutes to one hour. The new employee can ask questions of their buddy during this practice period, but it is expected that the buddy will continue with their own work and not train the new employee; Mr Foster returns to check the new staff member’s work approximately every 30 minutes; If the new employee continues employment after the trial shift, they can continue to turn to their buddy for assistance. There is no defined duration of the buddy period, but most new employees become relatively independent in their roles within one or two days. [90] Mr Foster did not agree that production employees are entirely responsible for training other production employees. [91] In cross-examination, Mr Foster stated that the majority of production employees hired by Vadain have previous industry experience and may already be competent at the tasks of the position they are applying for. The trial shift is mainly an opportunity for a prospective employee to familiarise themselves with Vadain’s machines and curtain manufacturing processes, not necessarily learning new skills.40 Mr Pao Ze Vue [2020] FWC 487 20 [92] Mr Foster noted Mr Ze Vue’s evidence that he had been taught to adjust and change work orders by Mr Foster and Mr Vong Yang. Mr Foster stated that he had taught Mr Ze Vue to use a template spreadsheet document which automatically calculates from entered data certain details for an order, such as the number of drops required. Mr Foster has instructed Mr Ze Vue that if the spreadsheet calculations and the customer order docket are clearly misaligned, Mr Ze Vue can amend the customer order docket by hand. Mr Foster did not consider this process to require Mr Ze Vue to exercise any judgement or discretion; he only needs to compare the customer order docket and the spreadsheet calculations and correct the docket if there is a difference. Mr Foster stated that Mr Ze Vue often asks either himself or Mr Vong Yang to check any amendments he has made. If the order in question is unusual or tricky, Mr Ze Vue must discuss the order with Mr Foster before amending the docket. [93] Mr Foster noted that all large commercial orders are handled by him, not Mr Ze Vue, because the completion dates for large orders are not pre-set and must be determined by Mr Foster. When put to him in cross-examination that Mr Ze Vue ‘processes’ large commercial orders, Mr Foster confirmed that he prints off all the customer order dockets for the large orders and determines the appropriate delivery dates and often takes the dockets to the cutters himself, while Mr Ze Vue’s only task may be to bring the appropriate rolls of fabric to the cutters from the intake racks.41 [94] Mr Foster stated that Mr Ze Vue sometimes attempts to solve problems on his own initiative. Mr Foster stated that such actions are against Mr Foster’s and Vadain’s directions; Vadain has established procedures for resolving problems efficiently and it is often the case that Mr Ze Vue interrupts that process by attempting to resolve problems on his own. [95] Mr Foster noted Mr Ze Vue’s evidence that he deals with orders for alterations and as part of that role must consider whether an alteration is possible or not. Mr Foster disagreed that Mr Ze Vue is required to decide whether particular alterations are possible; that is the role of Ms Chiu Kam Lin. In cross-examination, Mr Foster denied ever asking Mr Ze Vue about alterations.42 [96] Mr Foster noted Mr Ze Vue’s evidence about other employees approaching him with their problems, and stated that he has asked Mr Ze Vue to stop other employees approaching him with their problems and direct them to Mr Foster instead so that Mr Ze Vue can focus on his own work.43 [97] Mr Foster agreed that he does not directly supervise Mr Ze Vue’s fabric intake role and that he generally speaks to Mr Ze Vue about three to four times per day, most often about problems encountered by Mr Ze Vue that he cannot resolve himself. Mr Foster stated that he also speaks to Mr Ze Vue about how to perform his role more efficiently, such as by not talking to delivery drivers during fabric deliveries, and if Mr Foster can see that Mr Ze Vue is falling behind in his work he attempts to ‘get him moving’. [98] During cross-examination, Ms Wiles put to Mr Foster that Mr Ze Vue does not just make small talk with delivery drivers; he monitors the delivery of fabric and counts the rolls being delivered to ensure there is no shortfall. Ms Wiles put to Mr Foster that there had been a continuous problem with shortfalls in delivered fabrics which he had tried unsuccessfully to solve with the delivery drivers himself, and Mr Ze Vue had addressed the problem by monitoring deliveries more closely. Mr Foster acknowledged that there had been occasions [2020] FWC 487 21 when shortfalls in delivered stock had occurred, but denied that he had tried to fix the problem with the delivery drivers, instead stating that he had instructed Mr Ze Vue to reject a delivery if the amount of delivered stock was incorrect.44 [99] Ms Wiles put to Ms Foster that a ‘backlog’ of deliveries can sometimes accrue in the intake area, for example after a period of public holidays when deliveries have been delayed, and the workload of the intake area can increase at those times. Mr Foster stated that the workload of the intake area can fluctuate, but never so much that Mr Ze Vue could not complete his work by himself and without a second person working in intake.45 [100] Ms Wiles put to Mr Foster that part of Mr Ze Vue’s role is to process stock into Vadain’s computer systems. Mr Foster agreed that Mr Ze Vue processes in-house stock into their systems, but noted that Mr Ze Vue had been slow at processing stock delivered in the week before the hearing, and some stock was still waiting to be processed. In answering further questions from Ms Wiles, Mr Foster stated it is largely up to Mr Ze Vue to determine when he needs to process in-house stock into Vadain’s systems, depending partly on existing stock levels.46 Mr Andrew Yang [101] Mr Foster recalled training Mr Yang on the panel cutting machine and at the panel cutting station, and assigning another employee, Robert, to be Mr Yang’s buddy at the panel cutting station.47 However, Mr Yang struggled at panel cutting and was assigned to other stations, such as the sheer cutting and packing stations. Mr Foster stated that he would not have assigned Ha Le as Mr Yang’s buddy at the packing station, and stated that he always assigns the most experience packing employee, John Fuller to be the buddy for new packing employees. In cross-examination, Mr Foster confirmed that he could not precisely recall assigning Mr Fuller to be Mr Yang’s buddy.48 [102] Mr Foster agreed with Mr Yang’s evidence that he assigned Mr Yang to be the buddy for two other employees of Vadain at the sheer cutting station, one of whom continues to work at Vadain. Mr Foster agreed in cross-examination that term ‘buddy’ is his own terminology and he did not use that term when instructing Mr Yang to help those employees on their commencement.49 [103] Mr Foster noted Mr Yang’s evidence that he checks fabric for faults, defects and other problems, and decides himself about what to do regarding particular problems including whether he is able to fix such problems himself or whether he needs to tell the floor manager about any particular problem. Mr Foster stated that Mr Yang should not be deciding whether he can fix a problem himself. Mr Foster stated that Mr Yang can at his discretion ‘cut around’ an identified flaw in a piece of fabric. If Mr Yang cannot cut around a flaw, he must put the fabric on the relevant problem rack; he has no authority to determine whether a flaw is a minor or major flaw or how any problem could be fixed.50 [104] Mr Foster agreed with Mr Yang’s evidence that production employees are required to complete their work to the expected standard and that no employee checks the sheer cutting work before its passes to the next stations in the production line. However, Mr Foster clarified that no-one checks the sheer cutting work because there is a margin for error in the length of the cut which can be corrected at other stations and because it becomes very obvious [2020] FWC 487 22 if a sheer cut is not straight once the fabric moves to the vertical cutting station. Mr Foster reiterated that the quality of all work is checked at the packing station. Mr Cyriaque Nkeraguhiga [105] Mr Foster stated that to his knowledge he trained Mr Nkeraguhiga during a three-hour trial shift upon his commencement with Vadain including in performing side seams, and then assigned ‘Liz’ to be Mr Nkeraguhiga’s buddy in accordance with the method set out above at paragraph [89].51 [106] Mr Foster disagreed with Mr Nkeraguhiga’s contention that he “cuts the fabric thread with hand scissors” after sewing a seam. Mr Foster stated that Vadain’s sewing machines automatically cut off excess thread once a stitch is completed, and any remaining cotton tails are trimmed at the packing station. Mr Foster conceded in cross-examination that if a machine’s automatic cutter was malfunctioning, a machinist employee would have to use small scissors to cut off the excess thread.52 [107] Mr Foster denied that Mr Nkeraguhiga is responsible for maintenance on his sewing machine. All production employees, including Mr Nkeraguhiga, must ensure that their station and machines are clean at the end of the day. Mr Foster stated that Mr Nkeraguhiga is only required to change the needles on his machine as required, and only once per week on Fridays is he required to push the machine head back and check the oil level is topped-up, blow out any dust from under the machine head and to use an air hose to generally clean his machine. [108] Mr Foster denied that Mr Nkeraguhiga’s machinist skills meet Vadain’s minimum competency requirements. Mr Nkeraguhiga is only allocated to a machinist station unless no other skilled machinists are available and then only to do basic tasks such as side seams or corners. When on a machine, Mr Nkeraguhiga is not required to do any more complex problem solving regarding the operation of a sewing machine than replacing broken needles and checking the machine’s tension if threads are breaking. [109] Mr Foster did not recall Mr Nkeraguhiga ever training another employee in side seams or assigning Mr Nkeraguhiga to be an employee’s buddy for training in side seams, and stated that there were more qualified workers than Mr Nkeraguhiga to fulfil the buddy role for side seams. [110] Mr Foster agreed that Mr Nkeraguhiga generally speaks to Mr Foster only if he encounters a problem or an issue that he does not understand, and Mr Nkeraguhiga seldom needs guidance on how to perform his role. Mr Mohammed Hussaini [111] Mr Foster stated that to his knowledge, upon commencing employment with Vadain Mr Hussaini would have been trained by the method set out above at paragraph [89], and noted that Mr Hussaini was already experienced in tailoring and sewing prior to his work with Vadain and would not have required much training or assistance from his buddy, which Mr Foster conceded could have been ‘Liz’, or ‘Tina’ as asserted by Mr Hussaini. [112] Mr Foster denied that Mr Hussaini’s work is not checked, and maintained that Mr Hussaini’s work is subject to the same quality control processes as all other work, as set out [2020] FWC 487 23 above at [85] – [87] including for any large project orders that Mr Hussaini works on.53 Mr Foster denied that Mr Hussaini is responsible for fixing other employees’ mistakes on a daily basis. [113] Mr Foster disagreed with Mr Hussaini’s contention that he “cuts the fabric thread with hand scissors” after sewing a seam and gave similar evidence as set out above at [106] regarding Mr Nkeraguhiga’s evidence. [114] Mr Foster denied that Mr Hussaini is responsible for maintenance on his sewing machine and gave similar evidence as set out above at [107] regarding Mr Nkeraguhiga’s evidence. [115] Mr Foster agreed that Mr Hussaini is capable of performing all routine tasks without asking questions of Mr Foster or Mr Vong Yang. However, Mr Foster does supervise and assist by Mr Hussaini with non-routine tasks and Mr Hussaini is subject to the same general supervision as all other production employees described above at [73] – [76]. Ms Kim Laws [116] Mr Foster recalled training Ms Laws when she commenced employment with Vadain and showed her how to read Vadain’s customer order dockets, how to record fabric usage in Vadain’s systems and generally how Vadain’s production line operates. Mr Foster maintained when asked by Ms Wiles in cross-examination that showing Ms Laws those three tasks still constitutes ‘training’.54 Ms Foster confirmed in cross-examination that Ms Laws is very experienced in curtain manufacturing, perhaps more so than Mr Foster.55 [117] Mr Foster stated that there is no ‘sheer cutting machine’ at Vadain and all sheer cutting is performed manually with scissors, which Mr Foster showed Ms Laws how to perform upon her commencement with Vadain. Mr Foster did not instruct nor expect either Mr Yang or ‘Lien’ to be Ms Laws’ buddy at the sheer cutting station but agreed that Mr Yang and Lien were working at the sheer cutting station at the time of Ms Laws’ training and she could have asked either of them for assistance rather than go to Mr Foster with any questions. [118] Mr Foster agreed that no-one checks sheer cutting work before it goes to the next station. Mr Foster stated that sheer cutting is not checked because it is a simple task; a sheer cutter only needs to measure out the length of the cut and cut the fabric straight, which is the most important thing. It is acceptable for there to be up to a 10cm margin of error in the length of the cut as adjustments can be made at other stations. Mr Foster maintained during cross-examination that he considered sheer cutting to be an easy task despite the matters raised in Ms Laws’ evidence below at [190] – [195], which were put to him.56 [119] In re-examination, Mr Foster confirmed his evidence that the type of fabric being cut does not make much difference to the process of sheer cutting and, in approximately 95 per cent of cuts involving patterned fabrics, sheer cutters do not need to take any pattern into account.57 [120] Mr Foster denied that Ms Laws is required to assess or make decisions about any problems she has identified in a piece of fabric. The correct process after identifying a problem is to use the problem rack system described above at [82] – [84], which allows the [2020] FWC 487 24 production line to continue at an acceptable rate, rather than being slowed down by employees attempting to fix problems instead of continuing with other work. Mr Foster agreed that Ms Laws asks him for assistance if she encounters any major problems with an order. [121] Mr Foster disagreed with Ms Laws’ assertion that no-one checks her work. Mr Foster maintained that all products are checked using the quality control processes set out above at [85] – [87]. Mr Foster stated that he can and does review Ms Laws’ output of work using Vadain’s computer systems. Mr Foster stated that he can clearly see Ms Laws’ sheer cutting station from the mezzanine level and can see the particular fabric that she is working on at any given time, although he cannot see the detail of any particular sheer cut. Mr Foster reiterated that he spends approximately 85% of his time on the workshop floor and only 15% on the mezzanine level. Mr Nelson Vong Yang [122] During re-examination, Mr Foster was asked questions and gave evidence about Mr Vong Yang’s work at Vadain. When asked by Mr Smith, Mr Foster stated that it would be very rare for neither himself or Mr Vong Yang to be on the workshop floor, and he could not think of an occasion when that had happened.58 [123] I asked Mr Foster further questions about Mr Vong Yang’s duties. Mr Foster stated that Mr Vong Yang usually floats between production stations ensuring that orders are moving through the production stations and taking steps to allow orders to move through the production process. Mr Vong Yang also identifies overdue orders and prioritises them within the production line. Mr Foster stated that if an employee encounters a problem while Mr Vong Yang is nearby they are instructed to ask him for assistance and he has the authority to develop a solution for the problem and direct the employee regarding the problem.59 Mr Foster also stated that Mr Vong Yang maintains the vertical cutters, and could attempt minor maintenance tasks on sewing machines if Mr Foster was not available.60 [124] Mr Foster stated that Mr Vong Yang often assists at the packing station near the end of a shift and fills in at the vertical cutting station if one of the usual vertical cutting employees is not available.61 [125] I sought Mr Foster’s view on whether Mr Vong Yang either directly or routinely supervises production employees, as follows:62 Commissioner: “What do you - would you call it direct or routine supervision? Mr Foster: For Nelson? Commissioner: Yes? Mr Foster: A bit of both, I guess. Commissioner: It's a bit hard to direct 38 people, isn't it? Mr Foster: It's a challenge. Commissioner: Or 37 or 36 if you're out of the equation? [2020] FWC 487 25 Mr Foster: It's a challenge, yes. Commissioner: If you're spending an hour and a half packaging. Half an hour cleaning and 20 per cent on the vertical cutter? Mr Foster: As I said, that his day varies from day to day. That's not set in concrete; it depends what needs to be done on any given day. If for example, Nelson's time is best spent performing a different task than packaging, then we'll get a different employee to fill Huey's role. Commissioner: But otherwise, he's helping to move the curtains on to the next station? Mr Foster: Yes, yes. As I described, working behind the scenes. Commissioner: A bit of both direct and routine supervision…” [126] Following my questioning, Ms Wiles put to Mr Foster that the evidence of the employees concerned in this matter was that Mr Vong Yang does not directly supervise them at all unless they directly ask him a question, which they do only on odd occasions. Mr Foster stated that Mr Vong Yang does supervise the production process as he walks the workshop floor and he does raise issues with employees if he spots an issue. [127] I asked further questions of Mr Foster, as follows:63 Commissioner: “Is there any issue with Nelson being relatively young and people - do they respect him? Mr Foster: Yes. As I said, Nelson's a very respected member of the workforce. To my knowledge people respect him and like him. Commissioner: Employees don't think that they know their task best and he's not able to offer much input? Mr Foster: Sometimes we've had occasion where that might happen, but also that has happened with myself. But once we explain the way we do things, and the way that Vadain expects things to be done, and this is how we go about our tasks, that problem gets resolved. Commissioner: You have had some employees say well, what would he know, or something like that? Mr Foster: I'm not sure if that's ever been said, but you can see some employees on occasion, would be less reluctant to take instructions from myself on occasions or because sometimes they would feel that they would know best. Commissioner: They would be more reluctant? Mr Foster: Yes, but they're not there to make those decisions; I am. We're there to [2020] FWC 487 26 make the decisions for them, so they need to follow instructions. Commissioner: Because is their patch and that's what they do best and they've been doing it for years and years and they're good at it? Mr Foster: Well, some people would claim to probably be making curtains all their lives, that's as I said yesterday, that's where I really went out of my way when I was working in my previous workforce, to learn the product in- depth for a solid year. I stayed behind working every day to learn the machines because I didn't think it was fair for somebody with little experience to tell somebody with 19 years' experience this is how you do it and we do it this way, without having an understanding of how it needs to be done. Because that's just not fair and that's how you gain the respect of your co-workers, by doing that. Commissioner: So Nelson can approach any person in the operation and give them direction, can he? Mr Foster: Yes. And they're expected to follow his direction.” Vadain’s submissions [128] Vadain submitted that all of its employees are correctly covered by the Manufacturing Award and each of the employees concerned in this matter are already employed at the correct C13 classification level under the Manufacturing Award. Coverage of the Manufacturing Award [129] Clause 4.1 of the Manufacturing Award provides that it “…covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.” [130] Clause 4.9 of the Manufacturing Award states that the term ‘Manufacturing and Associated Industries and Occupations’ means: “(a) the following industries and parts of industries: (i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:  The products, structures, articles, parts or components set out in clause 4.10…” [131] Clause 4.10 of the Manufacturing Award sets out the products, structures, articles, parts or components for the purposes of clause 4.9(a)(i) and includes at clause 4.10(ii), “upholstery, furnishing drapery, blinds, screens, awnings, mattresses and bedding.” [132] Vadain submitted that the words ‘furnishing drapery’ are not defined in the Manufacturing Award and therefore should be given their ordinary meaning, and relies upon [2020] FWC 487 27 the Macquarie Dictionary’s definitions for ‘furnishing’ and ‘drapery’ to fix that meaning, as follows:64 “furnishing noun… 2. (plural) fittings, appliances, articles of furnishing, etc., for a house or room.” “drapery noun… 3. coverings, hangings, clothing, etc., of some fabric , especially as arranged in loose, graceful folds.” [133] Vadain submitted that a curtain is a covering of fabric which is fitted to the windows of a house or room, which tend to fall in loose, graceful folds. Vadain submitted that it is intended that curtains are covered by the term ‘furnishing drapery’ within clause 4.10(ii) of the Manufacturing Award. Vadain submitted that this conclusion is supported by the other categories of products covered within clause 4.10(ii) of the Manufacturing Award which are also types of window coverings. [134] Vadain submitted that the Manufacturing Award applies to Vadain’s business because it applies to the work of furnishing drapery and the TCF Award does not apply to that work. Vadain submitted that the TCF Award is directed at the manufacture of textiles, clothing and footwear, and while the manufacturing of furnishing drapery uses textiles, it does not involve the manufacture of textiles. [135] Vadain disputed the CFMMEU’s arguments that Vadain’s business falls within the meaning of ‘textile industry’ in the TCF Award. Vadain referred to the TCF Award’s coverage clause, which states: “4.1 This industry award covers employers throughout Australia in the textile industry, clothing industry, bag making industry, button making industry, footwear industry and allied manufacturing and fabricating industries and their employees engaged in duties covered by the classifications in this award.” [136] Vadain noted the CFMMEU’s reliance in the definition of ‘allied manufacturing and fabricating industries’ in clause 3.1 of the TCF Award and its arguments that an employer does not need to manufacture textiles to be ‘in the textile industry’; an employer that designs, develops, manufactures or treats textiles or manufactures products using textile materials can be covered by the TCF Award. [137] Vadain submitted that none of the various processes and task included in the term ‘allied manufacturing and fabricating industries’ within clause 3.1 of the TCF Award relate to the manufacture of curtains. Vadain submitted that the definition of ‘allied manufacturing and fabricating industries’ act as words of expansion with respect to the TCF Award’s coverage clause and the meaning of ‘textile industry’ and on that basis, the true meaning of ‘textile industry’ within the TCF Award is narrower than the processes and tasks included in the definition of ‘allied manufacturing and fabricating industries’ and narrower than as argued by the CFMMEU. [138] Vadain submitted that it is appropriate to consider the ordinary meaning of ‘textile’ as an adjective and ‘industry’, and relied on the following definitions: [2020] FWC 487 28 “textile adjective 1. Woven; made of or resembling a textile; suitable for weaving or manufacture as a textile. 2. Of or pertaining to weaving or textiles.” “industry noun 1. A particular form or branch of productive labour.” [139] Vadain submitted that taken together, the above definitions provide the ordinary meaning of ‘textile industry’ which is the branch of productive labour involved in producing textiles. Vadain disagreed with the CFMMEU’s argument that any industry which might use the products of the textile industry may also be part of the textile industry and relied on the following passage from Gibbs CJ in The Queen v Isaac and Others; Ex Parte Argyle Diamond mines Proprietary Limited and Ors:65 “The words "in connexion with" in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. Thus it has been held that workers employed to produce coke from coal, in a business of iron and steel manufacturers, were not employed in or in connexion with the coal and shale industry. Similarly, workers who produced the coal in those circumstances could not have been said to be employed in or in connexion with the iron and steel industry… [footnotes omitted].” [140] Vadain also referred to the judgment of Flick J in The Australian Workers’ Union v Cleanevent Australia Pty Ltd (Cleanevent): “…the Amusement Award, being part of the award modernisation process, is to be construed harmoniously – if possible – with the Cleaning Services Award. In the absence of clear words indicating to the contrary, the Amusement Award is not to be construed as applying to those employers covered by the Cleaning Services Award when the latter Award deals specifically – and in detail – with cleaning activities. [141] Vadain submitted that the approach adopted by Flick J in the above passage should be applied similarly here, and submitted that it would be inappropriate to apply the TCF Award to Vadain’s work where the Manufacturing Award deals specifically with furnishing drapery and the TCF Award does not. [142] Vadain submitted in the alternative that if both the TCF Award and the Manufacturing Award could apply to Vadain’s industry, then the Manufacturing Award remains the correct award to be applied. Vadain submitted that the correct approach to determine which of two or more overlapping award applies was the approach adopted in Cleanevent; that the ‘most appropriate’ award is the one which applies.66 [143] Flick J noted in Cleanevent that the expression ‘most appropriate’ was endorsed in a model clause dealing with overlapping awards published by the Commission in Re: Request from the Minister for Employment and Workplace Relations.67 That model clause led to a corresponding clause 4.10 in the TCF Award, which states: “4.10 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is the most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.” [2020] FWC 487 29 [144] Vadain submitted that the approach of considering the award classification which is ‘most appropriate’ to the work performed aligns with the approach adopted by the Full Court of the Federal Court in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd68 and with s.134(g) of the Act which provides: “134 The modern awards objective (1) The FWC must ensure that the modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: … (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids the unnecessary overlap of modern awards…” [145] Vadain submitted that the method by which the CFMMEU submits that the TCF Award applies to Vadain’s industry and the work of the relevant employees is not simple, easy to understand, stable or sustainable, and ignores the plain meaning of the words in the Manufacturing Award. Appropriate classification for employees under the Manufacturing Award [146] Vadain submitted that the relevant production employees are already classified at the correct level, that being level C13 under the Manufacturing Award. [147] Vadain submitted that the proper approach to determining the correct classification level for the relevant employees is by “…reference to the particular position involved, rather than by reference to the capabilities of the individual employee.”69 Vadain referred to the following extract from the judgment of Jones J in Davies v Carnachan Family Trust Pty Ltd:70 “…However, in deciding whether or not an employee ought be classified at a particular level, regard must be had to all of the specified skills, knowledge, and indicative tasks. This is not to say that an employee must have performed each of the tasks specified at the level (as the tasks are described as “indicative”), however a court must be satisfied, having regard to the various indicative tasks, that the employee performed duties that reach the standard established by those indicative tasks.” [148] Vadain disagreed with the CFMMEU’s argument that the relevant employee’s experience, qualifications and skills should entitle them to be classified at a higher level, and submitted that the purpose of awards is to pay employees for the work which they are required to do, not the work that they might be capable of. [149] Vadain set out the tasks which it submitted are required to be performed by each of the production employees involved in this matter and submitted that it is those tasks alone which determine the appropriate classification level for the relevant employees.71 The tasks described by Vadain are summarised in the following table: [2020] FWC 487 30 Role in production line Task involved in role Employees concerned in this matter that perform role Fabric intake - Receiving fabric; - Entering data into a spreadsheet; - Printing a customer order docket and matching it to the material; - Moving the material to the cutting area. - Mr Pao Ze Vue Sheer cutting - Rolling the fabric onto the cutting tables; - Checking the fabric for imperfections; - Reviewing the customer order docket for measurements required; - Cutting the fabric to size; - Putting the fabric on a trolley to be taken to the machinists. - Mr Andrew Yang - Ms Kim Laws Panel cutting - Reviewing the customer order docket for dimensions of the panel; - Spreading the fabric on the table and looking for imperfections; - Checking if the pattern repeat is correct; - Updating the order in the computer system; - Cutting the fabric; - Putting the fabric on a trolley to be taken to the machinists. - Mr Andrew Yang Vertical cutting - Updating the computer system from the customer order docket; - Securing the curtain in the vertical cutting machine and making sure the seam is flat; - The vertical cutting machine cuts the material; - Putting the fabric on a trolley to be taken to the machinists. Machinist - Sewing pleats, side seams, rod pockets or other tasks required for the particular order; - Adjusting the tension and speed of the machine as required; - Changing the needle and thread as required; - Putting the fabric on a trolley to be taken to the packers; - Mr Mohammed Hussaini Side seams - Folding the curtain fabric by 4cm; - Feeding the fabric through the sewing machine; - Cutting the threads once the seam is finished; - Putting the completed fabric on a trolley; - Mr Cyriaque Nkerguhiga - Mr Mohammed Hussaini [2020] FWC 487 31 Weighted hems - Feeding the fabric through the machine, as the machine automatically folds the fabric and attaches lace to the curtain hem; - Putting the fabric on a trolley; Packing - Measuring the completed product to ensure it complies with the customer order docket; - Identifying any problems with the product; - Placing any problematic products on the problem rack; - Folding the product, hanging it, covering it in a plastic sleeve and placing it on a dispatch rack. - Mr Andrew Yang - Mr Cyriaque Nkeraguhiga [150] Vadain noted that the minimum training requirement for a C13 employee is described as ‘in-house training’ while all higher classifications require at least a Certificate-level qualification.72 The Manufacturing Award describes the C13 classification as follows:73 “B.3.4 Wage Group: C13 (a) Engineering/Manufacturing Employee—Level II (i) An Engineering/Manufacturing Employee—Level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level. (ii) An employee at this level performs work above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training:  works in accordance with standard operating procedures and established criteria;  works under direct supervision either individually or in a team environment;  understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults;  understands and utilises basic statistical process control procedures;  follows safe work practices and can report workplace hazards.” [151] Vadain submitted that the nature of the work performed by the production employees concerned in this matter as summarised above at [149] fits within the criteria for a C13 level employee under the Manufacturing Award. Vadain submitted that the following tasks are characteristic of higher classifications under the Manufacturing Award and none of the relevant production employees are required to perform any of those tasks: Exercise discretion, initiative or judgment in the performance of their tasks; Perform complex tasks or work from complex instructions and procedures; Coordinate work in a team environment; [2020] FWC 487 32 Assure the quality of their own work; Investigate causes of quality deviations or make recommendations regarding preventative action; Record detailed information on, or recommend improvements to, production and/or quality; Take a co-ordinating role for a group of workers or in a team environment; Exercise advanced equipment maintenance and problem solving skills; or Have any external training or certification. [152] Vadain submitted specifically that the relevant employees mostly work on automatic, semi-automatic or single-purpose machines. They are rarely, if ever, required to train other employees and they are directly supervised by Mr Foster and Mr Vong Yang. [153] Vadain submitted that the evidence of some of the employees about understanding production work flow and the CFMMEU’s submissions as to understanding work flow is not relevant to the questions to be answered in this matter, because none of the relevant employee’s roles required that they understand the production work flow of Vadain’s workshop. Similarly, Vadain submitted that the nature of the work performed in its workshop, that of a production line, must be taken into account and submitted that all that is required of the relevant employees was to focus on the task in front of them. Vadain submitted that employees troubleshooting problems themselves is counterproductive and is not part of the role of any of the relevant employees. Direct supervision [154] One of the differences between a C13 and a C12 employee under the Manufacturing Award is that a C13 level employee works under ‘direct supervision’, while a C12 employee works under ‘routine supervision’. Vadain accepted that this distinction may be of critical importance in this matter and noted that ‘direct supervision’ is not defined within the Manufacturing Award. Vadain referred to the decision of the Jones J in Askaro v Leading Synthetics Pty Ltd and Anor (Askaro) in which her Honour considered whether the following work circumstances represented ‘routine supervision’ or ‘direct supervision’: “Other than being informed by the supervisor…of the quota of bags to be filled for the night, the crew on the night shift determined themselves how the tasks necessary to achieve this quota would be undertaken and by whom; The crew members then performed the tasks without direction from management; The control room operators…would walk around the plant during the night to ensure the plant operated smoothly.” [155] Her Honour held that the employees in Askaro were ‘routinely supervised’, responsible for the quality of their own work subject to such supervision and exercised discretion within their skill level. [156] Vadain submitted that the nature of the supervision in this matter is distinguishable from that considered in Askaro and is ‘direct supervision’ because: The production employees are allocated stations by Mr Foster; Mr Foster and Mr Vong Yang constantly monitor the production line between them; [2020] FWC 487 33 Mr Foster changes the order of work completed by the production employees and manages the work flow of the production line; and Mr Foster undertakes quality assurance. Appropriate classification for employees if the TCF Award applies [157] In the case that I determined that the relevant employees are covered by the TCF Award and should be classified under that award, Vadain submitted that all of the relevant employees should be classified at the Skill Level 1 classification level.74 The TCF Award describes the required skills for Skill Level 1 employees as follows: “Employees at this level will: work to defined procedures/methods either individually or in a team environment; and exercise skills to perform basic tasks; and be aware of and apply basic quality control skills in the receipt and completion of their own work to the specified quality standards. In addition, according to the needs and operational requirements of the enterprise, employees at this level may be required to: exercise the skill necessary to assist in providing basic on the job instruction by way of demonstration and explanation; record basic information on production and/or quality indicators as required; work in a team environment; apply minor equipment/machine maintenance; exercise key pad skills; exercise the level of English literacy and numeracy skills to effectively perform their tasks; and commence training in additional skills required to advance to a higher skill level.” [158] Vadain submitted that the tasks completed by the relevant employees were ‘basic tasks’ and fell short of being ‘intermediate tasks’, which are both defined by the TCF Award as follows: “C.1.1 Basic tasks Uncomplicated tasks which are easily learned and involve little decision making whether machine or non-machine. Basic machine tasks are those where the positioning of the work may be controlled by guide-bars and sensor lights or other such guiding devices or where there is uncomplicated feeding of the fabric or material.” and “C.2.8 Basic tasks (a) Non-make up section Uncomplicated tasks which are easily learned and involve little decision making whether machine or non-machine. [2020] FWC 487 34 Performs a range of simple manual tasks: (i) inspects and/or examines and/or uncomplicated grading/pairing raw materials/yarns/fabrics etc. for faults (non-machine operations); and/or (ii) carries out simple tests on yarns/fabrics etc. outside a laboratory environment; and/or (iii) transfers, removes or supplies fabric, yarn, tickets, bobbins etc. to other employees or from one section to another; and/or (iv) performs basic machine tasks (see definition below). (b) Make up section (i) uncomplicated tasks which are easily learned and involve little decision making whether machine or non-machine; and/or (ii) basic machine tasks are those where the positioning of the work may be controlled by guide-bars and sensor lights, or other such guiding devices, or where there is uncomplicated feeding of the fabric.” “C.1.2 Intermediate tasks Tasks which are more difficult to learn, involve more decision making than Skill Level 1 tasks and which require fabric knowledge (or in the footwear industry, material or component knowledge), whether machine or non-machine. Intermediate machine tasks require skill in positioning, feeding and handling of work involving directional changes, contouring or critical stoppage points, or require feeding and handling skills beyond those of a Skill Level 1 operator because of fabric or material variation. Intermediate non-machine tasks require skills to perform a sequence of related tasks.” and “C.2.14 Intermediate Tasks (a) Non-make up Tasks which are more difficult to learn, involve more decision making than Skill Level 1 tasks and which may require more fabric/product knowledge, whether machine or non-machine. (i) the efficient operation of a machine or machines involving the application of more than basic skills in the setting up, running, monitoring and making adjustments to the machine or machines; or (ii) the inspection or examination and grading/pairing of raw materials/yarns/fabrics etc. for faults, and where necessary, mends by hand or machine; or [2020] FWC 487 35 (iii) carries out tests which may involve colour matching and interaction of chemicals and/or dyes on yarns or fabrics etc. in a laboratory environment; or (iv) is responsible for monitoring and co-ordination of fabric, yarn, tickets, bobbins etc. to other workers, or from one section to another; or (v) weighs and measures raw materials/yarns/fabrics or chemicals and/or dyes; (vi) intermediate non-machine tasks require skills to perform a sequence of related tasks. (b) Make up section (i) tasks which are more difficult to learn, involve more decision making than Skill Level 1 tasks and which may require fabric knowledge whether machine or non-machine, or (ii) intermediate machine tasks require skill in positioning, feeding and handling of work involving directional changes, contouring or critical stopping points, or require feeding and handling skills beyond those of a Skill Level 1 worker because of fabric variation; or (iii) intermediate non-machine tasks to perform a sequence of related tasks.” [159] Vadain submitted that the relevant employees complete their work at each of the stations in Vadain’s production line in accordance with the defined processes for each station. The work itself is basic, straight cutting and sewing straight seams. The relevant employees do not need to work with patterns or joining of fabric as they might need to do if working with clothing. The quality control processes completed by all employees and those employees that work at the packing station falls short even of the TCF Award’s description basic quality control skills, which includes uncomplicated grading and pairing of raw materials and carrying out simple tests on fabrics. [160] Any training provided by the relevant employees to other employees is limited to instruction on the basic tasks that they themselves undertake, and is done through demonstration while on-the-job. There is no formalised training process. [161] Most of the relevant employees are not required to record any information in respect of their work other than marking their initials on the customer order docket as an order passes from station to station. Vertical cutter employees must scan the customer order docket and packing employees must record the weight of the final product prior to packing, both of which Vadain submitted were basic tasks. Vadain noted that Me Ze Vue recorded the most information of the relevant employees but submitted that even Mr Ze Vue completed only basic information recording tasks. [162] Vadain submitted that none of the relevant employees were required to do any maintenance tasks more complex than changing a sewing machine’s needles and thread or [2020] FWC 487 36 adjusting a machine’s tension and stitch, which all fall within the TCF Award’s definition of ‘minor equipment/machine maintenance’.75 Vadain noted that only the vertical cutter and pleating machines require employees to use key-pad skills, and all of those machines use simple key-pad systems. Evidence and submissions of the Respondent Evidence of Ms Elizabeth MacPherson [163] Ms Elizabeth MacPherson gave two witness statements regarding this matter and attended and gave evidence at the hearing.76 Ms MacPherson’s evidence dealt with her experience as a textiles, clothing and footwear worker and her experience with the Textiles, Clothing and Footwear Union of Australia (TCFUA), which was amalgamated into the CFMMEU on 27 March 2018, her knowledge of skill classifications within the textiles, clothing and footwear industry and several site visits she conduct of Vadain’s workshop. [164] Ms MacPherson holds the positions of Divisional Assistant Secretary (Victorian District) and National Senior Vice President of the CFMMEU. She is member of the ‘TCF Sector Council’ within the CFMMEU’s Manufacturing division and is the National Compliance Officer for that division. Ms MacPherson held various elected positions with the TCFUA before it was amalgamated into the CFMMEU on 27 March 2018, including Organiser, Compliance Officer, President of several different TCFUA branches and National Trustee of the TCFUA. Prior to joining the TCFUA Ms MacPherson worked as a production worker within the textile, clothing and footwear industry (the TCF industry) for approximately 27 years, mainly as a machinist and ‘warping machine operator’. [165] Ms MacPherson estimated that throughout her work history with the TCFUA and the CFMMEU she has visited thousands of TCF industry workplaces and has an extensive understanding of the nature of the work undertaken in the TCF industry, the TCF Award and the pre-reform awards which underpin the TCF Award. [166] Ms MacPherson stated that in her knowledge and experience, very few people are classified at Skill Level 1 under the TCF Award, and apart from trainee employees, the Skill Level 2 classification is essentially the minimum classification level under the TCF Award. [167] Ms MacPherson visited Vadain’s workplace on several occasions during early-2018 and inspected Vadain’s curtain production processes. Ms MacPherson met with each of the CFMMEU’s members at the site and discussed the nature of their roles with Vadain. Ms MacPherson stated that she observed and confirmed with each of Vadain’s production employees that none of the production employees were directly supervised and all were responsible for the quality of their own work. [168] As a result of her inspections and interviews with workers, Ms MacPherson considered that the nature of the work undertaking by each of the production employees involved in this matter fits more appropriately under the TCF Award. Ms MacPherson formed a view that the relevant employees had incorrectly been classified at the C13 level under the Manufacturing Award and it would be more appropriate for each of them to be classified at either the Skill Level 2 or Skill Level 3 classifications under the TCF Award. [2020] FWC 487 37 [169] In a further witness statement of Ms MacPherson she gave evidence of her knowledge of enterprise agreements approved for other workplaces, and the relevant employer’s reliance on the TCF Award as the underpinning award in those workplaces. I have taken into account Ms MacPherson’s evidence in consideration of this application. Evidence of Mr Cyriaque Nkeraguhiga [170] Mr Cyriaque Nkeraguhiga gave a witness statement regarding this matter and appeared and gave evidence at the hearing.77 Mr Nkeraguhiga’s country of origin is Burundi, and his first language is Kirundi. Mr Nkeraguhiga was assisted by a Kirundi interpreter while giving his evidence. [171] Mr Nkeraguhiga migrated to Australia in 2008. Prior to arriving in Australia, Mr Nkeraguhiga worked in the textile, clothing and footwear industry in Tanzania. He holds a ‘Certificate Grade 3 in Tailoring’ issued by the Vocational Education Training Authority of Tanzania.78 From 2002 to 2008, Mr Nkeraguhiga performed general tailoring duties for ‘Norwegian People Aid’ which included making school and medical uniforms. Mr Nkeraguhiga also ran his own sewing business during that period of time. Mr Nkeraguhiga stated that he has always made and continues to make clothes for his family and friends. [172] After arriving in Australia, Mr Nkeraguhiga obtained several certificate-level qualifications in several different industries in an effort to obtain work. In July 2016, Mr Nkeraguhiga obtained a Certificate II in Applied Fashion Design and Technology from the Australian College of Computerised Embroidery and Textile Technologies,79 which included the following competencies: Using a sewing machine and sewing components; Identifying fibres and fabrics; Modifying patterns to create basic styles; Drawing and interpreting basic sketches; Repairing and altering garments; Identifying design processes for fashion designers; Following defined operational health and safety policies and procedures; Applying quality standards; Participating in environmentally sustainable work practices; [173] Mr Nkeraguhiga stated he provided copies of his qualifications to Vadain during his application process.80 [174] Mr Nkeraguhiga agreed with Ms Schouten’s evidence that he commenced employment with Vadain on 10 August 2016. He was originally employed on a casual basis, although working 38 hours per week, and after six months was made a permanent employee. During the first two years of his employment, Mr Nkeraguhiga worked primarily as a machinist doing side seams. Since July 2018 he has worked primarily in the packing area but states that he can still work as a machinist as required. Mr Nkeraguhiga disagreed with Ms Schouten’s evidence that he was shifted to the packing station because his machinist skills were not as good as Vadain’s other machinists, and stated that he was not told why he was moved.81 [2020] FWC 487 38 [175] Mr Nkeraguhiga stated that when he started with Vadain he received two hours of training on side seams from another production employee, ‘Liz’. Mr Nkeraguhiga recalled that Mr Foster was not present in the workshop for his first day.82 In cross-examination, Mr Nkeraguhiga agreed that after receiving the two hours’ training he was satisfied that he could do side seams well, having sewed for a long time before starting at Vadain, and agreed that he considers himself to be good at side seams and finds them easy. Mr Nkeraguhiga agreed that doing side seams is easier than the sewing tasks required to make clothes.83 [176] Mr Nkeraguhiga described how he would sew a side seam and how the completed fabric passes to the next production station, which broadly matched Ms Schouten’s evidence set out at [62]. However, Mr Nkeraguhiga stated that once he has finished sewing a side seam he must cut the excess thread with scissors. In examination-in-chief, Mr Nkeraguhiga clarified that the sewing machines do cut the excess thread automatically, but he may need to cut the thread again with scissors if the machine has made a poor cut.84 [177] Mr Nkeraguhiga stated that there are four or more sewing machines used for side seams on the workshop floor.85 [178] Mr Nkeraguhiga stated that if he is working as a machinist, he is responsible for general maintenance on his sewing machine at the end of each week.86 Mr Nkeraguhiga stated that if a machine is operating poorly Vadain expects that the machinist will use their knowledge and initiative to attempt to fix the issue themselves. Only if there is a major or continued issue would Mr Nkeraguhiga raise the maintenance issue with Mr Foster. If a thread breaks while doing a side seam he is required to replace and rethread the thread, and if a needle breaks he is required to change the needles. Mr Nkeraguhiga estimated that when working as a machinist he changed needles twice per week and rethreaded the machine many times per week, as a result of threads breaking and different types of thread being used. During the hearing, Mr Nkeraguhiga agreed changing needles, rethreading threads, adjusting thread tension, considering different fabric types, sewing in a straight line and sewing at speed are all general skills that a professional sewer must possess.87 [179] Mr Nkeraguhiga stated that he is required to adjust the tension of his machine for the particular fabric he is working on and Mr Nkeraguhiga uses his own knowledge and experience to determine the appropriate tension for the particular fabric. Mr Nkeraguhiga disagreed with Ms Schouten’s evidence that only rarely is he required to adjust a machine’s tension because he generally only does side seams on large orders, and stated that while he does often do side seams for large orders he has worked on many different fabrics while working at Vadain. [180] Mr Nkeraguhiga stated that around mid-2018 he was asked by Mr Foster to train another production employee on side seams. Mr Nkeraguhiga recalled the other employee was female, but could not recall her name.88 [181] Mr Nkeraguhiga gave evidence about his work at the packing station. Mr Nkeraguhiga recalled that he was trained in packing by ‘John’. Mr Nkeraguhiga described the nature of the packing role, which matched the evidence of Ms Schouten set out at [56] and Mr Foster set out at [85]. During the hearing, Mr Nkeraguhiga gave particular evidence about how pencil and knife pleats are handled in the packing area. He stated that both of those pleats are finished in the packing area. For pencil pleats, two packers space the pleats evenly and set the fixing tape on the back of the curtain correctly, then pack the curtain. Knife pleats [2020] FWC 487 39 follow the same process, but are then returned to a machinist who sews the pleats down to one side. The completed curtain is returned to the packing area, checked once more by the packers, and dispatched.89 [182] Regarding identified flaws, Mr Nkeraguhiga stated that if he has identified a flaw or problem in the fabric or how the pleats have been formed, he makes an assessment whether he can fix the problem itself, such as by re-tacking a pleat. If Mr Nkeraguhiga determines that he cannot fix the problem himself, he places the curtain on the problem rack. If a curtain has no problems and is ready for dispatch Mr Nkeraguhiga packs and weighs the curtain and signs off on the curtain. No-one else checks the curtain after Mr Nkeraguhiga certifies its quality. During the hearing, Mr Nkeraguhiga stated that Mr Foster may check some of the completed packing, but most packed orders are despatched without being checked again by Mr Foster.90 [183] Mr Nkeraguhiga stated that whether working as a machinist or a packer he is responsible for the standard and quality of his own work and Vadain expects him to decide how best to achieve a particular task, which includes attempting to problem-solve issues as they arise. [184] Mr Nkeraguhiga disagreed that he is directly supervised by Mr Foster or Mr Vong Yang. Mr Nkeraguhiga stated that he usually sees Mr Foster and Mr Vong Yang in the workshop on most days, but it is left to him to seek their assistance. Mr Nkeraguhiga usually goes to Mr Foster if there is a particular problem he cannot fix himself and to Mr Vong Yang if he discovers during packing that a curtain does not match the particular order. [185] During the hearing I asked questions of Mr Nkeraguhiga about the level of supervision he works under. Mr Nkeraguhiga stated that Mr Foster and Mr Vong Yang sporadically or occasionally supervise them in their work. He stated that they are ‘around’ on the workshop floor but usually assist employees with their tasks only when asked for assistance.91 Mr Nkeraguhiga agreed when asked by Mr Smith that Mr Foster sometimes watches while Mr Nkeraguhiga works and stands quite close to him.92 However, during re-examination by Ms Wiles, Mr Nkeraguhiga stated that whether working in side seams or packing, Mr Foster does not show up when you don’t need him.93 Evidence of Ms Kim Laws [186] Ms Kim Laws gave a witness statement regarding this matter and appeared and gave evidence at the hearing.94 Ms Laws agreed with Ms Schouten’s evidence that she commenced employment with Vadain on 6 December 2017. She was originally employed on a casual basis although working 38 hours per week, and was made permanent after six months. She has primarily worked as a sheer cutter but often works to the packing area as well, particularly near the end of a day. [187] Until 2017 Ms Laws worked at ‘Mardo Australia Pty Ltd’ (Mardo) which manufactures curtains and blinds. When she worked with Mardo Ms Laws performed almost the same role as her sheer cutting role with Vadain, but was classified as and paid as a ‘Skill Level 3’ worker under the TCF Award. [188] Ms Laws learned sewing, machining and cutting fabric while working in her family’s curtain manufacturing business and in 2000 she took over and ran that business, until 2013. Ms Laws has worked in the textile, clothing and footwear industry for a total of almost 43 [2020] FWC 487 40 years. She considers herself extremely proficient in all aspects of curtain manufacturing. Ms Laws started that when she started work with Vadain Mr Foster showed her how to use Vadain’s customer order dockets within its computer systems, but neither he nor anyone else provided any training to Ms Laws.95 [189] On 24 April 2018 Ms Laws sustained an injury while at work. She made a WorkCover claim regarding her injury which was accepted by Vadain. From April 2018 to December 2018 she took approximately six weeks off work and then returned to employment on restricted duties. While on restricted duties and for a period of about three months, Ms Laws undertook packing work and also worked as a machinist sewing hemming tape, hems, side hems and corners.96 On 13 December 2018 she had surgery to her hand and has not returned to work at Vadain since that date. She is currently working for a host employer on light duties including customer assistance, sales and stocking shelves. [190] Ms Laws gave evidence about her work as a sheer cutter at Vadain. Ms Laws was already proficient at sheer cutting when she started with Vadain and needed no further training in sheer cutting itself. She was shown how to use Vadain’s computer systems to balance a roll of fabric for sheer cutting by Mr Yang and ‘Lin’. Ms Laws considers that sheer cutting is difficult to do well and not every person has the aptitude to become a competent sheer cutter. Ms Laws stated the following regarding sheer cutting: If a fault or flaw in the fabric is not identified before the cut is made, it is unlikely that the end product will meet the required standard of quality; The measurement of the drop and the cut has to be 100% accurate.97 One must have good general knowledge of fabric and consider the best way to measure the fabric taking into account the type of fabric, its weave, weight and any patterns must be taken into account; The selvedge (the finished edge of the curtain) and the bias (the grain of the fabric) must be taken into account. The selvedge has to be cut off to allow for hemming and the bias must be considered so that the sheer cut is done with the grain and not against it.98 [191] Ms Laws set out the process that she follows for sheer cutting: She takes a roll of fabric to the sheer cutting station and considers the customer order for that roll; She lays a single roll of fabric on the sheer cutting table and checks the fabric for faults. For patterned fabrics, she also checks whether there is any problem with the pattern. If she identifies a problem, she places the fabric on the problem rack and attaches a note describing the problem; She measures the fabric to the appropriate dimensions using the measurement rulers on the sheer cutting table; She uses fabric scissors to make the sheer cut by hand. There are several methods to assist in making a straight sheer cut, such as pulling one thread and following the line created. However, not all fabric types have easily pulled threads and in the case other methods must be used to ensure a straight cut, such as using tape markers on the cutting table as a guide. Ms Laws must decide the best way to cut a particular roll of fabric; After cutting, she reviews the cut to make sure it is straight and to the appropriate measurements. If it is correct, she folds the fabric and puts it in the appropriate [2020] FWC 487 41 location to go to the machinists. Finally, she attaches the customer order docket to the cut fabric and scans the docket to indicate in Vadain’s computer system that the sheer cut has been done and the order is ‘in production’; No-one checks Ms Laws’ work before it moves on to the next production process. She is responsible for making sure the sheer cut done to the appropriate standard. [192] During examination-in-chief, Ms Laws clarified when a pattern in fabric must be considered during sheer cutting. While continuously repeating patterns do not need to be considered in the sheer cut, Ms Laws stated that some patterned fabrics need to be ‘railroaded’, turned and cut sideways, to ensure that the pattern can continuously repeat. Orders with particularly large drops also need to be railroaded. Ms Laws stated that if a fabric needs to be railroaded sheer cutters need to attention to the length of the drop, allow additional fabric for the curtain to be hemmed, and pay attention to the repetition of the pattern so that the pattern can be joined correctly.99 [193] During examination-in-chief, Ms Wiles described to Ms Laws the evidence of Mr Foster that sheer cutting is a simple task and Vadain’s sheer cutters do not need to make assessments or decisions about how to perform each sheer cut. Ms Laws stated that she did not consider sheer cutting to be a simple task. She stated that the fabric being cut is expensive so sheer cutters must be careful when cutting and stated that there are some people who simply do not have the aptitude to be a sheer cutter.100 [194] In cross-examination, Mr Smith put to Ms Laws that her work at the sheer cutting station could be boiled down to two tasks, measuring fabric precisely and cutting in a straight line. Ms Laws did not disagree with Mr Smith, but stated that visually inspecting fabric for flaws, considering any patterns and considering the type of fabric being cut and how to handle that material were also important tasks involved in sheer cutting.101 In re-examination, Ms Laws stated it can be difficult for inexperienced sheer cutters to cut straight when using fabrics that do not allow a thread to be pulled to create a guide.102 [195] Further, Ms Laws maintained that sheer cuts need to be as accurate as possible. She acknowledged that differences in width could be accounted for when forming a curtain’s pleats but stated that for a curtain pair, the same mistake in width would need to be made for both curtains, otherwise each curtain’s pleats would be of different widths.103 [196] Regarding patterns particularly, Ms Laws stated in response to Mr Smith’s questioning that about 50 per cent of the curtains she cuts have some pattern to them but confirmed that only rarely is she required to railroad fabric to account for its pattern.104 [197] Ms Laws gave evidence about her work as a packer at Vadain, which matched the evidence of Ms Schouten set out at [56] and Mr Foster set out at [85]. Ms Laws gave evidence regarding identifying and handling fabric problems. Ms Laws clarified that in both of her roles she makes assessments and decisions about what to do about particular problems she has identified, including whether she can fix or ‘cut around’ a problem or fabric flaw herself or whether she needs to raise the problem with Mr Foster.105 [198] In cross-examination, Ms Laws agreed when put to her by Mr Smith that once a problem is raised with Mr Foster, either by calling him over or by putting an order on a problem rack, Mr Foster decides how that problem is to be rectified or whether the order can be dispatched despite the identified problem.106 Answering questions from me, Ms Laws [2020] FWC 487 42 stated that she had never seen Mr Foster open a packed curtain once it had been wrapped in plastic for dispatch and check the curtain’s quality and pleating quality, although she noted that packing is not her main role and accepted that she may simply not have seen Mr Foster checking packed curtains.107 [199] Ms Laws disagreed with Ms Schouten’s evidence that production employees are directly supervised by Mr Foster and Mr Vong Yang. Ms Laws stated that Vadain expects her and all other production employees to take individual responsibility for the quality of their work. Ms Laws stated that no-one checks any other employee’s work as an order passes through the different stages of production until the packing station, it is simply expected that all work will be done to the required standard and each employee that handles an order signs off on their work before the order passes to the next station. Ms Laws was not aware of Mr Foster ever having conducted spot checks of her sheer cutting work.108 [200] Ms Laws stated that Mr Foster works from the mezzanine level and does not directly supervise her work. Ms Laws noted that the sheer cutting tables are at the other end of the workshop from the mezzanine level and considered it would be impossible for Mr Foster to see the detail of a single sheer cut done by Ms Laws. Ms Laws stated that she has very little interaction with Mr Foster on a day-to-day basis, perhaps only saying hello and goodbye, and only needs to speak with Mr Foster if there is a major problem with a particular order.109 When asked by Ms Wiles during examination-in-chief Ms Laws stated that to her recollection of when she had last worked in Vadain’s workshop during December 2018, Mr Foster typically spends less than 50 per cent of his time on the workshop floor.110 [201] Ms Laws stated that she has very little interaction with Mr Vong Yang on a day-to-day basis and Mr Vong Yang does not directly supervise her at all. In cross-examination, Ms Laws recalled that she had once called Mr Vong Yang over about a problem and he had said to her, “You know more than I do, so do what you want”.111 Evidence of Mr Pao Ze Vue [202] Mr Pao Ze Vue gave a witness statement regarding this matter and appeared and gave evidence at the hearing.112 Mr Ze Vue stated that during May 2017 he commenced employment with Vadain on a casual basis, and became a full-time employee on 5 December 2018. Mr Ze Vue has also been the elected shop steward for the CFMMEU in Vadain’s workplace since 17 December 2018. [203] Mr Ze Vue has always worked in the fabric intake station of the production line. Upon becoming a full-time employee Mr Ze Vue was also trained in the ‘dispatch’ process and he works there occasionally as required. Mr Ze Vue was trained in these roles by Mr Foster, Mr Vong Yang and Mr Gert Buitink, an international consultant for Vadain’s international business who visits Vadain’s workshop several times each year. During the hearing, Mr Ze Vue stated that the training he was given was not adequate and he largely had to teach himself how to perform the fabric intake role.113 Fabric delivery and customer orders [204] Mr Ze Vue handles the delivery of rolls of fabric to Vadain’s workshop where they are placed into storage racks. Some rolls are delivered loosely and can be put straight into the racks while others are delivered on pallets and Mr Ze Vue must use a ‘hand walker stacker’ to [2020] FWC 487 43 unload the pallets into the racks. Mr Ze Vue monitors the delivery and ensures that the correct amount of fabric rolls are being delivered. Mr Ze Vue stated that each delivery takes between two and four minutes to complete depending on the number of rolls delivered, and there are ordinarily two large deliveries and around four small deliveries per day.114 After the fabric is unloaded Mr Ze Vue processes any fabric for Vadain’s customers into Vadain’s computerised order system, ‘Atelier Net’. Mr Ze Vue processes any consignment stock fabric into Atelier Net and places that stock into storage. [205] To process fabric for customer orders, Mr Ze Vue must check the customer order details in the Atelier Net system against the details described on the packing slip on each roll of fabric. If there is no packing slip, Mr Ze Vue manually searches the Atelier Net system or customer emails to attempt to match the fabric with a work order. If he still cannot identify the order, Mr Ze Vue will as a last resort use the ‘Report Manager’ program to match a roll of fabric to an order. Mr Ze Vue was instructed in the Report Manager program by Mr Buitink, who advised Mr Ze Vue that following the above steps prevents Mr Ze Vue sending unnecessary emails to Vadain’s office staff to identify rolls of fabric for him and speeds up the processing procedure. [206] If the information on a packing slip is consistent with the details in the Atelier Net system, then Mr Ze Vue enters the order information into a spreadsheet document which automatically calculates the number of drops for each roll of fabric. He then prints a customer order docket, highlights any particularly important details, adds the planned completion date to the order docket, attaches it to the roll of fabric and marks the order as ready for production in the Atelier Net system and places the unpacked roll of fabric onto a trolley. If an order is particularly urgent Mr Ze Vue may carry the roll directly to the next production station. [207] If the information on a packing slip is not consistent with the details in the Atelier Net system Mr Ze Vue places the roll on the problem rack and attaches a completed problem template document describing the problem. [208] Mr Ze Vue is occasionally required to process stock into Vadain’s Atelier Net system. When processing stock, Mr Ze Vue must enter the fabric type and number of metres of each roll of fabric into Vadain’s system. The system produces a barcode which Mr Ze Vue prints and labels onto the particular roll or rolls of fabric; [209] Sometimes an order within Atelier Net will have an internal note instructing Mr Ze Vue whether he needs to make any changes to the order, such as changing cut sizes or fabric types to be used. Mr Ze Vue may also receive phone calls or be visited by Vadain’s office staff or Mr Foster instructing him to make changes to a particular order. Mr Ze Vue stated that he is required to change or amend customer orders on a daily basis. Mr Ze Vue stated that Mr Foster and Mr Vong Yang have taught him how to make changes to a work order by himself, which he does occasionally. If Mr Ze Vue changes a work order by himself, he handwrites the relevant change onto the order docket and confirms the change with Mr Foster or Mr Vong Yang before the fabric continues through the production line.115 [210] Further, an order can be put on hold either before or after fabric has been sheer cut or panel cut. If an order is put on hold before the fabric is cut Mr Ze Vue takes the relevant rolls of fabric to ‘holding shelves’. If the fabric has already been cut, then the held order and relevant fabric is handled by Vadain’s office staff. In either case, Mr Ze Vue is responsible for putting held orders back into the production line once the order is no longer on hold. [2020] FWC 487 44 [211] Mr Ze Vue also deals with orders for alterations. For any alterations Mr Ze Vue checks the order docket and assesses whether the sought alteration is possible or not, such as whether a complete curtain pair has been returned for alterations required to both curtains in the pair, whether the curtain can be altered to the required drop and width and whether the alteration can be done without damaging the fabric. When put to him by Mr Smith, Mr Ze Vue agreed that his role regarding alterations is to act as a ‘barrier test’ by checking for variables which may make an alteration impossible but where an alteration is possible, he it is Mr Foster’s and Lourie’s role to determine how to complete the alteration.116 If an alteration is possible, Mr Ze Vue takes the fabric to the appropriate station in the production line to be altered, usually Lourie’s station. If an alteration is not possible, Mr Ze Vue enters the problem with the alterations into a problem template document and takes the fabric and template document to Vadain’s office staff. [212] In cross-examination, Mr Smith put to Mr Ze Vue that he had been instructed not to consider whether an alteration was possible or not and he has been instructed not to take fabric directly to Lourie, he is supposed to take any fabric requiring alteration to the cutters. Mr Ze Vue maintained that he had been told to take alterations to Lourie because she makes the decisions regarding alterations.117 [213] During the hearing, Mr Ze Vue stated that generally he is not able to process all newly delivered stock on the day it is delivered and particularly when he is returning to work after a public holiday or where there are a large number of commercial orders to process. He considered that there is simply too much work for one person to complete.118 Mr Ze Vue confirmed in cross-examination that there is a 24-hour window for him to process newly delivered stock and so he is not necessarily ‘behind’ if he does not process new stock on the same day it is delivered.119 [214] Mr Ze Vue disagreed with Mr Foster’s evidence above at [93] that Mr Foster handles all large commercial orders and Mr Ze Vue only distributes the fabric for those orders to the cutters. Mr Ze Vue stated that Mr Foster will provide Mr Ze Vue with the planned completion date and will sometimes print the work orders for him, but Mr Ze Vue still needs to enter the stock into Vadain’s system, store the fabric roles correctly and distribute the fabric to the cutters. In cross-examination, Mr Ze Vue estimated that he and Mr Foster each process about 50 per cent of large commercial orders.120 Dealing with problems [215] Mr Ze Vue stated that he is the first point of contact in the production line for investigating problems with orders and has daily contact with Vadain’s customer service staff to help identify and solve problems, although he does not have direct contact with Vadain’s customers. Mr Ze Vue also stated that production employees come to him on a daily basis with issues they have encountered such as fabric shortages or ‘dye-lot’ issues. Employees usually approach Mr Ze Vue with their problems when Mr Foster is not busy or otherwise not readily available.121 [216] In cross-examination, Mr Ze Vue agreed that his own work is slowed down a little by dealing with other employees’ problems and agreed that he has been told to direct other employees’ problems to Mr Foster and not to investigate problematic orders himself.122 In re- examination, Mr Ze Vue stated that he had directed employees to raise their problems with [2020] FWC 487 45 Mr Foster or Mr Vong Yang, but employees continue to approach Mr Ze Vue for help. Mr Ze Vue considered that employees continued to approach him for help because Mr Foster and Mr Vong Yang are not always available.123 [217] Mr Ze Vue disagreed with Ms Schouten’s evidence that he is not ‘required to investigate the causes of problems he identifies, make recommendations regarding preventative actions or make recommendations regarding improvements’. Mr Ze Vue stated that he has been asked by both Ms Schouten and Mr Foster on multiple occasions for his recommendations on how to improve production work flow, and most of his suggestions have been implemented into the production line. Mr Ze Vue stated that when he started at Vadain there was no manual for the processes of the fabric intake area, and Mr Ze Vue went through all of the fabric intake processes so that a written procedure could be developed. As a result of that exercise Mr Ze Vue made recommendations to improve the efficiency of the fabric intake area and assisted in the creation of new problem template documents and email templates relating to common problems.124 [218] Mr Ze Vue stated that his role requires him to make decisions every day as to how best to fulfil his duties and he regularly uses his own initiative to address any problems and issues which arise. Mr Ze is aware of how Vadain’s production processes work and how an order progresses through the production line. Training other employees [219] Mr Ze Vue stated that he has trained five other employees with respect to the fabric intake station, and Mr Ze Vue listed each of those employees. Each employee required about one full day of training.125 Supervision [220] Mr Ze Vue denied that he or any other production employee is directly supervised by Mr Foster or Mr Vong Yang. Mr Ze Vue stated that he generally speaks to Mr Foster about three to four times per day, and only needs to speak to Mr Foster if Mr Ze Vue encounters a problem he cannot deal with himself. Mr Foster may otherwise approach Mr Ze Vue to ask about the progress of a certain order, about problems in the production line or to give instructions regarding specific orders. When asked during the hearing, Mr Ze Vue stated that Mr Foster spends a roughly even amount of time between the workshop floor and the mezzanine level.126 While Mr Ze Vue accepted that he may not always be able to see where Mr Foster is, he can clearly see whether Mr Foster is on the mezzanine level or not from his intake area.127 [221] Answering questions from me, Mr Ze Vue stated that he does not consider that he is directly supervised by Mr Foster or Mr Vong Yang because he is largely left to complete his work on his own, following the procedures that have been set down for him to follow. Mr Ze Vue considered that direct supervision would require Mr Foster to be monitoring his work continuously. Both parties asked further questions of Mr Ze Vue and he conceded that Mr Foster could be monitoring his work as he walked around the floor or from the mezzanine level, but Mr Ze Vue thought that he would notice if Mr Foster was looking in his direction to monitor his work.128 [2020] FWC 487 46 [222] Mr Ze Vue stated that he speaks to Mr Vong Yang several times each day, usually fielding Mr Vong Yang’s questions about particular orders or the procedures of the fabric intake station. Mr Vong Yang sometimes assists Mr Ze Vue in the fabric intake area. [223] Mr Ze Vue stated that Mr Foster and Mr Vong Yang may provide additional assistance to new production employees during their training but after that, every production employee is expected to understand their role and take responsibility for the quality of their work. Evidence of Mr Andrew Yang [224] Mr Andrew Yang gave a witness statement regarding this matter and appeared and gave evidence at the hearing.129 He commenced employment with Vadain on 18 June 2017 following a trial period. He is employed on a casual basis although works 38 hours per week. He has been offered permanent employment by Vadain but has chosen to remain employed on a casual basis. Mr Yang works mainly as a sheer cutter, but he has also worked at the panel cutting and packing stations and has performed some general maintenance for Vadain. Mr Yang stated that he is sometimes moved to the other production stations he has been trained in as directed by Mr Foster or Mr Vong Yang. [225] Mr Yang stated that part of working at Vadain is having a good understanding of Vadain’s production process and each step involved in making a curtain. During questioning by Mr Smith in cross-examination, Mr Yang maintained that he needs to understand all of Vadain’s production processes so that if required he can take fabrics he has finished cutting to the next appropriate station.130 [226] Mr Yang described the same process for sheer cutting as Ms Laws, set out above at [197]. Mr Yang’s sheer cutting table is near the entrance of the workshop and below the mezzanine floor. Mr Yang was trained in sheer cutting when he started with Vadain predominantly by another employee, ‘Lien’, and sometimes by Mr Foster. Mr Yang was not given any written training materials regarding sheer cutting. Mr Yang considered that he learned most of the sheer cutting process from Lien and by learning from his mistakes. Mr Yang estimated it took him six months to master sheer cutting and another month after that to increase his sheer cutting speed to the required level. During the hearing, Mr Yang stated that it took him that long to master sheer cutting partly because he had been given other cutting work to do by a vertical cutting employee, ‘Fong’, whose vertical cutter machine had been continuously malfunctioning and failing to cut certain types of fabric.131 Mr Yang stated that since he started his employment Vadain has increased its number of customers and the workshop’s required rate of production has consequently increased. [227] During examination-in-chief, Ms Wiles sought Mr Yang’s view on Ms Schouten’s evidence that sheer cutters do not typically need to do anything to the fabric’s drop. Mr Yang stated that there are times when the dimensions of the order require a sheer cutter to turn the fabric ‘width ways’ and in those cases, they must consider the drop when cutting.132 [228] During cross-examination, Mr Yang agreed that there are three main ways to guide a sheer cut; pulling a thread, using the cutting table guide, or using the edge of the cutting table as a guide. Mr Yang agreed when put to him by Mr Smith that sheer cuts do not need to be 100 per cent accurate. Mr Yang agreed that while some fabrics can be more difficult to work with than others, all fabrics take a similar amount of force to cut. Mr Yang agreed that Mr Foster will place instructions on a customer order document for special orders instructing [2020] FWC 487 47 cutters to ‘see Brian’ after cutting, and Mr Foster occasionally prioritises certain orders above others. Mr Yang agreed that fabrics with continuous patterns are only dealt with differently by sheer cutters if the fabric needs to be railroaded and joined together again later, which occurs in about 10 per cent of cases.133 [229] During re-examination, Mr Yang stated that he does have to handle some fabrics differently during sheer cutting, such as slippery or stretchy fabrics. He handles those fabrics by using manually tightening clamps to hold them in place, being careful not to damage the fabric with the clamps, and by applying his scissors carefully during cutting.134 [230] Mr Yang stated that he has trained two other employees, ‘Esther’ and ‘Fiona’ in sheer cutting, one of whom remains employed at Vadain. Mr Yang recalled that Mr Foster had not asked him to be the ‘buddy’ for those employees, he had said to him words to the effect, “Andrew, could you show Esther and Fiona how to cut?”.135 [231] Mr Yang described the processes for panel cutting and packing, which aligned with Ms Schouten’s evidence set above out at [56] – [57]. Mr Yang stated that he was trained in panel cutting by another production employee; ‘Robert’.136 Mr Yang stated that he was trained in packing by two other production employees; ‘Fred’ and then ‘Ha Le’.137 Mr Yang recalled that he had worked in panel cutting during August 2018 and again during January 2019.138 [232] Mr Yang confirmed in relation to all of his different tasks that no-one checks his work after completing the particular task; it is simply expected that the task has been completed correctly and that the curtain is ready for the next stage of production. If Mr Yang identifies a problem, he must decide whether he is able to fix the problem himself or whether he needs to raise the problem with Mr Foster. Relevant to the packing area, Mr Yang confirmed it is up to the packers to decide whether a pleat has been formed satisfactorily. Mr Yang stated that Mr Foster checks the progress of the packing area’s work but he has never seen Mr Foster quality check a packed order and no-one other than his packing partner has checked the quality of his pleats.139 [233] Mr Yang denied that he is directly supervised by Mr Foster or Mr Vong Yang. He stated that part of his role is to identify problems in fabric and assess whether any flaws require repair and whether he can fix such problems himself, which he is authorised to determine. Mr Yang discusses more significant flaws with Mr Foster, but generally decides how to deal with an identified flaw on his own. Mr Yang gave examples of when he must consider how to address problems encountered in sheer cutting and stated that he would need to consider whether a fabric stain could be cleaned or whether he could ‘cut around’ an uncleanable stain or other fabric flaw.140 Only if he could not address the flaw himself would he place the fabric on the problem rack.141 When put to Mr Yang during the hearing that Mr Foster had never instructed him to clean stains and he was supposed to take the fabric to the ironing station for cleaning, Mr Yang maintained that Mr Foster had instructed him to consider whether he could clean minor stains at his sheer cutting station.142 [234] Mr Yang estimated that he speaks with Mr Foster one to three times per day. During the hearing, Mr Yang estimated that Mr Foster spends on average 60 – 70 per cent of his time on the workshop floor but does not necessarily check each production station while he is on the floor, and if the production line is running smoothly, Mr Foster may spend the majority of his day on the mezzanine level.143 Regarding Mr Vong Yang, Mr Yang stated that he only [2020] FWC 487 48 seeks his help if Mr Foster is unavailable and generally speaks to Mr Vong Yang about his work two to three times per week.144 During cross-examination, Mr Yanga agreed with Mr Smith that he seeks guidance from someone, whether that is Mr Foster, Mr Vong Yang, or an office staff member, whenever he is dealing with anything that is outside of the set way he is supposes to do things and he cannot resolve the problem himself.145 [235] During the hearing, I asked Mr Yang to expand upon why he thought he was not directly supervised by Mr Foster or Mr Vong Yang. Mr Yang stated that he would consider to be ‘directly supervised’ if Mr Foster regularly approached him to check on how his work was going, which he stated does not happen. Rather, Mr Foster only deals with Mr Yang if he has raised a problem to Mr Foster, or another employee has raised a problem with Mr Yang’s work.146 Evidence of Mr Mohammed Hussaini [236] Mr Mohammed Hussaini gave a witness statement regarding this matter and appeared and gave evidence at the hearing.147 Mr Hussaini commenced employment with Vadain on 29 September 2015. He was originally employed on a casual basis working 38 hours per week and was made a permanent employee after approximately two years. [237] Mr Hussaini lived in Afghanistan and Pakistan before he arrived in Australia in 2011.148 From 2008 to 2010 while living in Pakistan Mr Hussaini made curtains and clothes, using on-the-job training. Mr Hussaini has worked in several different jobs since arriving in Australia. Relevant to this dispute, during 2015 Mr Hussaini worked as a machinist for a women’s fashion company, ‘Black Milk’ making tights and leggings. Mr Hussaini worked for Black Milk for approximately six months. Mr Hussaini has worked exclusively as a machinist at Vadain. He had prior knowledge of sewing when he started at Vadain and received a couple days’ training from two other employees, ‘Liz’ and ‘Tina’. In cross- examination, Mr Hussaini agreed that tailoring work is more complex than the work performed at Vadain, and he quickly learned how to complete his work at Vadain due to his previous experience.149 [238] Mr Hussaini works on only one machine but can perform multiple sewing tasks from that machine. Mr Hussaini’s evidence about the sewing tasks he completes aligns with Ms Schouten’s evidence set out above at [66] – [67]. However, Mr Hussaini noted that: He changes the needles on his machine when they break, become blunt and for some different types of fabric; He cuts the fabric thread with hand scissors after sewing; He changes the thread for some different types of fabric and depending on the particular order; He is responsible for general maintenance of his sewing machine, which he usually performs every Friday.150 He sometimes fixes other, minor maintenance issues with his sewing machine, but he is not required to perform any other maintenance than that set out above.151 [239] During the hearing, Mr Hussaini confirmed that he does not need to use scissors to cut threads every time that he sews a thread. He only uses scissors to cut thread where the automatic cutter has left an excess of thread.152 [2020] FWC 487 49 [240] Mr Hussaini stated that he is required to fix sewing mistakes made by other machinists, usually on a daily on basis.153 The main problem that he fixes is sewing over pinholes left where a machinist has continued to sew after running out of thread, which requires Mr Hussaini to sew in a straight line over the pinholes.154 Mr Hussaini confirmed that he also fixes sewing problems with bottom hems and eyelets.155 Mr Hussaini stated that has the experience, knowledge and skills to determine how to fix sewing mistakes and he decides how to sew a curtain to fix the presenting problem himself.156 Sometimes he discusses problems with Ms Chiu Kam Lin, because she fixes cutting mistakes and he fixes sewing mistakes. It is expected that Mr Hussaini’s mend will be invisible such that the customer cannot determine that a mistake was made at all. Mr Hussaini stated during the hearing that he mostly fixes mistakes with leftover pinholes, incorrectly taped eyelets, side seams and bottom hems. Mr Hussaini also performs some alterations to curtains.157 [241] In cross-examination, Mr Hussaini stated that any mistakes he may make while sewing would be raised with Mr Foster. Similarly, if he was unable to fix a problem presented to him by another staff member, he would raise that problem to Mr Foster. Mr Hussaini stated that for minor or non-urgent issues to be raised to Mr Foster, he puts the relevant order aside and raises it to Mr Foster the next time he walks past. For major or urgent problems, he puts his hand up, calls out, or otherwise gets Mr Foster’s attention and raises the problem immediately. Mr Hussaini stated that he never uses the problem racks and he does not know where the problem racks are.158 [242] Mr Hussaini denied that he is directly supervised by Mr Foster or Mr Vong Yang. Mr Hussaini stated that he hardly ever speaks to Mr Foster about his work and while occasionally he may ask Mr Vong Yang a question, it is not common. In cross-examination, Mr Hussaini agreed that Mr Foster sometimes changes the priority of orders at Mr Hussaini’s station, but otherwise he does not supervise Mr Hussain’s work or determine the priority of orders that Mr Hussaini completes; he simply completes orders as they are delivered to his station.159 [243] Mr Hussaini stated that from his observations over the four years he has worked at Vadain he did not consider that any production employee is directly supervised by Mr Foster or Mr Vong Yang, and while Mr Foster and Mr Vong Yang may provide some initial training to new production employees, most learning is provided on-the-job and from other experienced production employees. Mr Hussaini considered that Mr Foster spent about 85 per cent of his time on the workshop floor and 15 per cent of his time on the mezzanine level.160 Mr Hussaini stated that all production employees including the machinists are responsible for the quality of their own work. [244] During the hearing, Mr Hussaini stated that Mr Foster does not conduct ‘spot checks’ of orders in the sewing area of the production line.161 Evidence of Ms Vivienne Wiles [245] Ms Vivienne Wiles was called as a witness during the hearing of this matter regarding a site visit she conducted of Vadain’s workshop prior to this matter being notified to the Commission. [246] On 8 May 2019 Ms Wiles attended Vadain’s workshop to discuss the issues arising in this matter with Mr Foster. Ms Wiles recalled that she met with Mr Foster for about five minutes around lunch-time at a table out the front of Vadain’s workshop. Mr Anthony Hack, [2020] FWC 487 50 a CFMMEU organiser, was also present. Ms Wiles asked Mr Foster about who conducts training and Mr Foster said that he decides who trains a particular employee. [247] Ms Wiles asked Mr Foster whether Vadain’s production employees work independently, which Mr Foster confirmed. Ms Wiles then asked Mr Foster whether he directly supervises production employees and recalled Mr Foster said that he does not directly supervise production employees, except for special orders that necessitate a run-through, such as that described in Mr Foster’s evidence at [76], so that all employees understand how to handle the order. Ms Wiles recalled that she asked Mr Foster whether the production employees worked independently, and Mr Foster replied that they worked ‘pretty much independently’. Ms Wiles recalled that twice she asked Mr Foster whether the production employees were directly supervised, and Mr Foster stated twice that he does not directly supervise Vadain’s production employees.162 [248] During cross-examination, Ms Wiles maintained when asked by Mr Smith that Mr Foster had said words to the effect, “I don’t directly supervise them” regarding Vadain’s production employees. Ms Wiles agreed when asked by Mr Smith that her discussion with Mr Foster had been a general discussion about rates of pay and Mr Foster had expressed an opinion off-hand during that discussion that he did not directly supervise the production employees.163 [249] Ms Wiles agreed that she discussed Vadain’s rates of pay generally with Mr Foster but did not discuss with him any specific rates of pay or classifications under the Manufacturing Award or the TCF Award.164 Submissions [250] The CFMMEU’s primary submission is that the TCF Award covers Vadain’s enterprise and the relevant employees. It submitted that the relevant employees have been underpaid as a result of their incorrect classification under the Manufacturing Award. The CFMMEU submitted in the alternative that, were I to determine that the Manufacturing Award is the correct award covering the relevant employees, those employees have nevertheless been incorrectly classified under the Manufacturing Award and have been underpaid as a result. The TCF Award covers Vadain’s enterprise and the relevant employees [251] The CFMMEU submitted that determining the coverage of a modern award requires a reading of the coverage clause in the relevant modern award. The CFMMEU referred to the decision of Kucks v CSR Limited,165 wherein it was stated: “….narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for.” [2020] FWC 487 51 [252] The CFMMEU submitted that an examination must be made of the principal purpose for which the employee is employed while considering the essential qualitative nature of the work for which the employee is engaged, relying on the following extract from Carpenter v Corona Manufacturing:166 “In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.” [253] The CFMMEU submitted that by the standard formulation of modern awards an employee is covered by a modern award if the employer is engaged in the relevant industry described in the award and the employee is engaged in the duties covered by the classifications in the award. [254] Vadain noted that there is no restriction in the Act upon an employer or its employees being covered by more than one modern award, and noted the following extract from the judgment of Marshall J in HSU v North Eastern Care Network:167 “The situation where two awards govern the terms and conditions of employment of certain employees, whilst relatively unusual, is not an unknown one. In those circumstances, the employer is obliged to accord to its employees the better conditions in respect of the matters dealt with in the awards, thus obeying all its obligations.” [255] The CFMMEU noted that the Full Bench of the Commission published a model clause dealing with the issue of overlapping awards that may be included in modern awards, and which appears in the TCF Award itself at clause 4.10, which is set out above at [143]. The CFMMEU submitted that to determine which of two or more overlapping awards cover an employee pursuant to clause 4.10, I must consider: (a) whether the employer is covered by multiple awards; (b) which award classification is the most appropriate to the work performed by the employee; and (c) the environment in which the employee normally performs their work. [256] The CFMMEU did not expressly challenge Vadain’s submissions that the Manufacturing Award applies to its enterprise. However, the CFMMEU disagreed with Vadain’s submissions that the TCF Award does not apply to its enterprise because it does not apply to the work of ‘furnishing drapery’ and that the TCF Award applies only to the manufacture of textiles, clothing and footwear which does not include the manufacture of curtains. [257] The CFMMEU noted the TCF Award’s coverage clause 4.1 (set out above at [129]) and submitted that for Vadain to be covered by the TCF Award it must be in the textile industry or an allied manufacturing and fabrication industry and Vadain’s employees must be engaged in duties covered by the classifications in the TCF Award. The CFMMEU cited the definition of ‘textile industry’ in clause 3 of the TCF Award, which is defined to include [2020] FWC 487 52 amongst other things, cotton, fabrics, felt, wool and/or fibre, man-made fibres, synthetic fibres and yarns and trimmings.168 [258] The CFMMEU submitted that it is not necessary for an employer to be in the business of manufacturing textiles for it to be ‘in the textile industry’, and that the definition of ‘textile industry’, when read in the context of the TCF Award as a whole, has a broader meaning than that submitted by Vadain and encompasses the design, development, manufacture and treatment of natural and synthetic textile materials and the manufacture of products using textile materials. The CFMMEU submitted that Vadain’s business of curtain manufacturing constitutes the manufacture of a textile product and is in ‘in the textile industry’ and is covered by the TCF Award. [259] The CFMMEU submitted that Vadain’s business also falls within the definition of ‘allied manufacturing and fabricating industries’ within the TCF Award, which includes ‘mending and/or repairing (including invisible mending) of fabrics and/or articles of all kinds of descriptions’. The CFMMEU submitted that Vadain’s production line includes mending and repairing fabrics and completed curtains, and that therefore Vadain’s business is covered by the TCF Award. [260] Regarding the possible overlap between the TCF Award and the Manufacturing Award, the CFMMEU submitted that the environment in which the relevant employees normally perform their work is a factory-based production line environment, requiring them to undertake a series of steps to manufacture a curtain product and dispatch that product to Vadain’s customers. The CFMMEU submitted that this environment is both a ‘textile industry’ and ‘manufacturing industry’ environment, and both the TCF Award and the Manufacturing Award cover that environment. [261] The CFMMEU submitted that the Manufacturing Award’s classification scheme is designed around the ‘National Metal and Engineering Competency Standards’ and qualifications designed to meet those standards. Where those competency standards do not apply to the work performed by an employee, the classification level is determined by reference to the definitions and ‘indicative tasks’ for each level.169 The indicative tasks are examples of work that an employee at the relevant level may perform, but are not required tasks to be performed at any given level. [262] The CFMMEU submitted that the indicative tasks for the C13 – C11 classifications have little to no relevance to curtain manufacturing and production, and the particular work undertaken by the relevant employees in this matter. Further, those classifications do not provide a suitable pathway for progression through those classifications recognising the skills and knowledge that the relevant employees have obtained by experience, unlike the TCF Award. The CFMMEU submitted that the Skill Levels set out in the TCF Award are the most appropriate classifications relevant to the work performed by each of the relevant employees and the environment in which they work. Classification of relevant employees under the TCF Award [263] The CFMMEU helpfully provided tables setting out the classifications that it says each of the relevant employees should be classified as based on their evidence of the work that they perform, which are summarised below. [2020] FWC 487 53 Member name Date of commencement Current classification Manufacturing Award CFMMEU claim TCF Award CFMMEU claim Manufacturing Award 2010 Mohammed Hussaini 29 September 2015 C13 Skill Level 3 C11 Kim Laws 6 December 2017 C13 Skill Level 3 C11 Cyriaque Nkeraguhiga 10 August 2016 C13 Skill Level 2 C12 Pao Ze Vue April 2017 C13 Skill Level 2 C12 Andrew Yang May 2017 C13 Skill Level 3 C11 [264] The CFMMEU submitted that the classifications set out in the TCF Award, which are described as ‘Skill Levels’,170 are generic in nature and place emphasis on an employee’s ability to perform skills, rather than undertake tasks. Each subsequent skill level requires a higher level of skill relative to the previous level. Skill Levels 1 to 3 do not require an employee to hold a certificate-level qualification, and Skill Level 4 requires an employee to hold a relevant trade certificate or apply skills and knowledge equivalent to that of a qualified tradesperson that have been acquired as a result of training or experience. The skill level system reflects that many workers in the TCF industry do not hold specific qualifications for their positions, but rather become skilled through experience in the TCF industry. The CFMMEU submitted that the TCF Award provides a pathway for workers to progress from Skill Level 2 to 4 through acquiring in the TCF industry. [265] Each of the TCF Award’s classifications list mandatory skills that a worker at that classification ‘will’ perform and discretionary skills that they ‘may’ perform according to the needs and operational requirements of the enterprise in which they work. The CFMMEU submitted that an employee needs only satisfy the mandatory skills for a skill level to work at that level, regardless of whether their enterprise requires them to perform any relevant discretionary skills and whether they can perform those discretionary skills. The relevant clauses of the TCF Award are as follows: “B.3 Skill Level 2 Employees at this level exercise the skills required to be graded at Skill Level 1 and will: work to defined procedures/methods, either individually or in a team environment; and exercise the skills to perform intermediate tasks; and understand and apply quality control skills in their own work and component parts (including understanding of the likely cause/s of deviations to specified quality standards in their own work). In addition, according to the needs and operational requirements of the enterprise, employees at this level may be required to: exercise the skill necessary to assist in providing on the job instruction to employees in skills required at Skill Level 2 and below by way of demonstration and explanation; record detailed information on production and/or quality indicators as required; [2020] FWC 487 54 exercise team work skills; identify and rectify minor equipment/machine faults, and report problems that cannot be rectified to a mechanic or supervisor; exercise basic computer skills; and commence training in additional skills required to advance to a higher skill level.” “B.4 Skill Level 3 Employees at this level exercise the skills required to be graded at Skill Level 2 and will: Exercise discretion, initiative and judgment on the job in their own work, either individually or in a team environment; Exercise skills to perform a complex task/s or perform a series of different operations on a machine/s or use a variety of machine types three of which require the exercise of Level 2 skills; and Be responsible for quality assurance in their own work (or if in the footwear industry, and assembly of component parts) including having an understanding of how this work relates to subsequent production processes and its contribution to the final appearance of the garment or product, (or if in the footwear industry, to the final appearance of the shoe). In addition, according to the needs and operational requirements of the enterprise, employees at this level may be required to: Investigate causes of quality deviations to specified standards and recommend preventative action; Exercise the skills necessary to assist in providing on the job instruction to employees in skills required at Skill Level 3 and below by way of demonstration and explanation; Record detailed information on, and recommend improvements to, production and/or quality; Take a co-ordinating role for a group of workers or in a team environment (which includes contributing to the identification and resolution of the problems of others and assisting in defining work group procedures and methods), where the members of the group or team are at Skill Level 3 and below; Exercise advanced equipment maintenance and problem solving skills (including identification of major equipment faults); and/or Commence training in additional skills required to advance to a higher skill level.” [266] The CFMMEU submitted that Mr Nkeraguhiga and Mr Ze Vue should be classified as Skill Level 2 workers because they exercise the skills required to be graded at Skill Level 1 (which are set out above at [157]), work to defined procedures and methods, exercise the skills required to perform ‘intermediate tasks’ (defined above at [158]) and apply quality control skills.171 [267] It was submitted that both Mr Nkeraguhiga and Mr Ze Vue are required to follow defined procedures or methods and to apply quality control skills. It was submitted that Mr Nkeraguhiga’s machinist work requires intermediate skills in setting up, running, monitoring and adjusting his machine and requires good fabric knowledge, and his packing area work requires intermediate skills to perform a sequence related tasks. It was submitted that Mr Ze Vue’s fabric intake work requires intermediate skills using Vadain’s computer systems and in [2020] FWC 487 55 processing the customer orders commencing the production process, which are non-machine tasks requiring the performance of a sequence of tasks. The CFMMEU submitted that both Mr Nkeraguhiga and Mr Ze Vue work without direct supervision. Mr Mohammed Hussaini, Ms Kim Laws and Mr Andrew Yang [268] It was submitted that the Mr Mohammed Hussaini, Ms Kim Laws and Mr Andrew Yang should be classified as Skill Level 3 employees because each of them: exercise the skills required to be graded at Skill Level 2; and exercise discretion, initiative and judgement in their work, perform complex tasks or perform a series of different operations on a machine or a variety of machine types three of which require level 2 skills; and are responsible for quality assurance in their work, including an understanding of how their work relates to subsequent production processes and its contribution to the final appearance of the curtain product; and are not directly supervised in their work [269] The CFMMEU submitted that ‘discretion, initiative and judgment’, while not defined in the TCF Award, refers to an employee’s decision-making skills. It was submitted that those words should be given their plain meaning and taken together, the plain meaning of those words refer to an employee’s problem solving and creative skills. [270] The TCF Award defines ‘complex tasks’ as follows: “C.1.3 Complex tasks (a) Non-make up Tasks which are more difficult to learn and involve a higher level of decision making than Skill Level 2 tasks, whether machine or non-machine. (i) the application of more than intermediate skills in the setting up, running, monitoring and making adjustments/performs maintenance as required, but not to a standard equivalent to a Skill Level 4 employee, or (ii) inspects, examines and grades raw materials/yarns/fabrics etc. and mends by hand or machine consistent with specified quality standards; or (iii) carries out tests which may involve colour matching of yarns/fabrics etc. in a laboratory. Assessment of the results of tests performed. Make decisions in the selection of dyes/chemicals; or (iv) capable of understanding recipes, makes decisions and is responsible in the performance of duties including weighing, measurement and selection of chemicals or dyes to specification. (b) Make up section [2020] FWC 487 56 (i) tasks which are more difficult to learn and involve a higher level of decision making than Skill Level 2 tasks, whether machine or non- machine. (ii) complex machine tasks require fabric manipulation skills and knowledge beyond those of a Skill Level 2 worker to perform more difficult tasks or to handle and align the sections while correct shaping of the end result because of the complexity of combining parts or because of frequent variation in fabrics.” [271] The CFMMEU submitted that Mr Hussaini exercises discretion, initiative and judgment in his machinist work and when determining how to fix the mistakes of Vadain’s other machinists. The CFMMEU submitted that the skills and knowledge required to operate a sewing machine with multiple functions, and with frequent variation in fabrics, to complete the construction of a curtain is complex, and Mr Hussaini performs several different operations on his machine. On that basis, Mr Hussaini undertakes complex machine tasks requiring fabric manipulation skills and knowledge beyond that of a Skill Level 2 worker. [272] The CFMMEU submitted that Ms Laws exercises discretion, initiative and judgment in her sheer cutting work, utilising her approximately 43 years’ experience to decide how best to undertake the measurement and cutting tasks involved in sheer cutting, considering the fabric type, weave, weight and any patters. Ms Laws also exercises discretion, initiative and judgment in her packing area work to identify faults or flaws in completed curtains. [273] It was submitted that the skills, knowledge and technical ability required to undertake sheer cutting within the curtain construction process is complex, and Ms Laws exercises sheer cutting and decision-making skills with accuracy, precision and speed above that of a Skill Level 2 worker. It was submitted that Ms Laws has detailed fabric knowledge and knows how best to apply her knowledge to correctly measure and sheer cut fabric to the standard required by Vadain. [274] The CFMMEU submitted that Mr Yang exercises discretion, initiative and judgment in his panel cutting, sheer cutting and packing area work. He uses his fabric knowledge and understanding of the sheer cutting and panel cutting processes to decide how best to measure and cut fabric to the required specifications. In the packing area, Mr Yang uses discretion and judgment to decide whether a curtain meets Vadain’s quality standards. [275] The CFMMEU submitted that Mr Yang, similarly to Ms Laws, completes complex tasks in his sheer cutting work, and his panel cutting work also requires him to complete complex tasks. It was submitted that sheer cutting and panel cutting involve tasks which are more difficult to learn and require a higher level of decision making than Skill Level 2 tasks. It was submitted that Mr Yang completes his sheer cutting and panel cutting work with accuracy, precision and speed meeting Vadain’s quality standards. Classification of relevant employees under the Manufacturing Award [276] In the case that I determine that the Manufacturing Award applies to the relevant employees, the CFMMEU submitted that relevant employees are incorrectly classified under the Manufacturing Award and should be classified at the levels set out in the table above at [2020] FWC 487 57 [263]. The CFMMEU cited the definitions for each of the C14 – C11 classification levels within the Manufacturing Award, which are set out below:172 “B.3.3 Wage Group: C14 (a) Engineering/Manufacturing Employee—Level I (i) An Engineering/Manufacturing Employee—Level I is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance. (ii) An employee at this level performs routine duties essentially of a manual nature and to the level of their training:  performs general labouring and cleaning duties;  exercises minimal judgement;  works under direct supervision;  is undertaking structured training so as to enable them to work at the C13 level.” “B.3.4 Wage Group: C13 (a) Engineering/Manufacturing Employee—Level II (i) An Engineering/Manufacturing Employee—Level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level. (ii) An employee at this level performs work above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training:  works in accordance with standard operating procedures and established criteria;  works under direct supervision either individually or in a team environment;  understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults;  understands and utilises basic statistical process control procedures;  follows safe work practices and can report workplace hazards.” “B.3.5 Wage Group: C12 (a) Engineering/Manufacturing Employee—Level III [2020] FWC 487 58 (i) An Engineering/Manufacturing Employee—Level III is an employee who has completed an Engineering Production Certificate I or Certificate II in Engineering or equivalent so as to enable the employee to perform work within the scope of this level. (ii) An employee at this level performs work above and beyond the skills of an employee at the C13 level and to the level of their skills, competence and training:  is responsible for the quality of their own work subject to routine supervision;  works under routine supervision either individually or in a team environment;  exercises discretion within their level of skills and training;  assists in the provision of on-the-job training.” “B.3.6 Wage Group: C11 (a) Engineering/Manufacturing Employee—Level IV Laboratory Tester (i) An Engineering/Manufacturing Employee—Level IV is an employee who has completed an Engineering Production Certificate II or Certificate II in Engineering—Production Technology or equivalent so as to enable the employee to perform work within the scope of this level. (ii) A Laboratory Tester is an employee who has completed a Certificate II, or equivalent, in Sampling or Measurement so as to enable the employee to perform work within the scope of this level. (iii) An employee at this level performs work above and beyond the skills of an employee at the C12 level and to the level of their skills, competence and training:  works from complex instructions and procedures;  assists in the provision of on-the-job training;  co-ordinates work in a team environment or works individually under general supervision;  is responsible for assuring the quality of their own work;  in a laboratory the employee performs basic/simple routine tests under close supervision and communicates results of those tests to the appropriate personnel.” Mr Cyriaque Nkeraguhiga and Mr Pao Ze Vue [277] The CFMMEU submitted that Mr Nkeraguhiga meets the prerequisites of the C12 classification level and he should be classified at that level. Relying upon Mr Nkeraguhiga’s statement and evidence at hearing, it was submitted that Mr Nkeraguhiga: Is a skilled machinist with 17 years’ experience, holding a Tanzanian ‘Certificate Grade 3 in Tailoring’ and Australian Certificate II in Applied Fashion Design and [2020] FWC 487 59 Technology qualifications. Upon completing a side seam, the curtain moves to the next production station without anyone checking the quality of his work, and his quality control work in the packing area is not usually confirmed by any other person before the product is dispatched. Is not directly supervised in any of his work. Mr Nkeraguhiga works under routine supervision; if he encounters a problem he cannot resolve himself he raises the problem to either Mr Foster or Mr Vong Yang; Exercises discretion within his level of skill and training, including deciding the tension of his machine when sewing side seams according to the type of fabric he is working on, and whether any problem he identifies in the packing area can be rectified by him or whether he needs to raise the problem with Mr Foster or Mr Vong Yang; Is skilled and experienced enough to assist in the provision of on-the-job training if required. [278] The CFMMEU referred to the ‘indicative tasks’ for C12 workers set out in the Manufacturing Award173 and identified that Mr Nkeraguhiga performs several of those tasks in his work, as follows: Operates flexibly between assembly stations, by working as a machinist and in the packing area; Operates machinery and equipment requiring the exercise of skill and knowledge beyond level C13, by operating his sewing machine without direct supervision and maintaining the machine by, for example, changing needles, rethreading machine and adjusting the machine’s tension; Holds non-trade skills, including sewing, tailoring and fashion design technology; Performs receiving, dispatching, distributing, sorting, checking, packing, documenting and recording of goods, materials and components, by completing his work in the packing area. [279] The CFMMEU submitted that Mr Ze Vue meets the prerequisites of the C12 classification level and he should be classified at that level. Relying upon Mr Ze Vue’s statement and evidence at hearing, it was submitted that Mr Ze Vue: Is responsible for the quality of his work in the fabric intake and dispatch areas and performs the tasks required for those roles without direct supervision; Is routinely supervised by Mr Foster and Mr Vong Yang with respect to progress of the production line as a whole and of particular orders; Regularly exercises initiative, discretion and judgement to investigate problematic orders, determine how to manage orders for alterations and make recommendations for improvements to production work flow; Provides on-the-job training to other Vadain employees regarding the fabric intake area. [280] The CFMMEU identified that Mr Ze Vue performs the following indicative tasks of the C12 classification level, as follows: Operates flexibly between assembly stations, by working in the fabric intake and dispatch areas; [2020] FWC 487 60 Operates machinery and equipment requiring the exercise of skill and knowledge beyond level C13, by operating the hand walker stacker in the dispatch area without supervision; Exercises non-trade skills, by operating Vadain’s order management computer software to process customer orders, stock and consignment; Performs receiving, dispatching, distributing, sorting, checking, packing, documenting and recording of goods, materials and components, by completing his work in the dispatch area. Mr Mohammed Hussaini, Ms Kim Laws and Mr Andrew Yang [281] The CFMMEU submitted that Mr Hussaini meets the prerequisites of the C11 classification level and he should be classified at that level. Relying upon Mr Hussaini’s statement and evidence at hearing, it was submitted that Mr Hussaini: Possesses skills equivalent to a Certificate II qualification; Uses his years of experience to complete multiple complex processes and follow complex instructions in his role as a machinist using a single sewing machine, including fixing mistakes made by Vadain’s other machinists; Possesses the skills and experience to provide on-the-job training if required; Performs his work individually without direct supervision; Is responsible for the quality of his machinist work, and no-one checks his work before the relevant order moves to the next production station. [282] The CFMMEU submitted that Mr Hussaini performs the following indicative tasks of the C11 classification level, as follows: Performs basic fault-finding skills, by checking fabric for flaws or faults; Performs basic quality checks on the work of others, by reviewing the work of Vadain’s other machinists and fixing errors made by them; Has knowledge of Vadain’s operation as it relates to production processes, as he understands the curtain production process and how his work fits in to that process. [283] The CFMMEU submitted that Ms Laws meets the prerequisites of the C11 classification level and she should be classified at that level. Relying upon Ms Laws’ statement and evidence at hearing, it was submitted that Ms Laws: Possesses skills equivalent to a Certificate II qualification; Utilises her 43 years’ experience and high level of fabric knowledge and skill to follow complex instructions and complete complex sheer cutting processes with precision, speed and accuracy and to Vadain’s quality standards; Possesses the skills and experience to provide on-the-job training if required; Performs her work individually without direct supervision; Is responsible for the quality of her work, and no-one checks her work before the relevant order moves to the next production station. Ms Laws also performs quality control processes when working in the packing area. [284] The CFMMEU submitted that Ms Laws performs the following indicative tasks of the C11 classification level, as follows: [2020] FWC 487 61 Performs basic fault-finding skills, by checking fabric for flaws or faults. Ms Laws checks for flaws and faults both when laying a curtain out on the sheer cutting table and when working in the packing area; Performs basic quality checks on the work of others, by inspecting curtains in the packing area prior to packing and dispatch; Has knowledge of Vadain’s operation as it relates to production processes, as she understands the curtain production process and how her work fits in to that process. [285] The CFMMEU submitted that Mr Yang meets the prerequisites of the C11 classification level and she should be classified at that level. Relying upon Mr Yang’s statement and evidence at hearing, it was submitted that Mr Yang: Possesses skills equivalent to a Certificate II qualification; Works from complex instructions and completes complex procedures in his sheer cutting and panel cutting work using a high level of fabric knowledge and skill, with precision, speed and accuracy and to the standard required by Vadain; Completes quality control processes in the packing area; Possesses the skills and experience to provide on-the-job training if required, and has done so; Performs his work individually without direct supervision; Is responsible for the quality of his work in all of his multiple roles, and no-one checks his work before the relevant order moves to the next production station. [286] The CFMMEU submitted that Mr Yang performs the following indicative tasks of the C11 classification level, as follows: Performs basic fault-finding skills, by checking fabric for flaws or faults. Mr Yang checks for flaws and faults when laying a curtain out on the sheer cutting table, when determining how best to perform a panel cut and when working in the packing area; Assists in the provision of on-the-job training, having trained two other employees in sheer cutting; Has knowledge of Vadain’s operation as it relates to production processes, as he understands the curtain production process and how his work fits in to that process. Consideration Which Award/s applies to the relevant employees? [287] I do not consider it appropriate to have regard to the evidence of Ms Macpherson relevant to the TCF award being applied at curtain manufacturer, Mardo. It would be inappropriate to apply any weight to such evidence. There is no evidence before the Commission as to which fabrics Mardo used or uses to manufacture curtains, or if it manufactures or manufactured textiles in addition to manufacturing curtains. [288] Ms Macpherson nominated the following enterprise agreements as relevant, noting that the underpinning award in each case is the TCF Award:  Australian Textile Mills Textiles Enterprise Agreement 2018  Bruck Textiles Enterprise Agreement 2011  Cash’s Apparel Solutions Pty Ltd Employee Enterprise Agreement 2019 [2020] FWC 487 62  Wilson Fabrics Pty Ltd Warehouse & Samples Enterprise Agreement 2015 [289] The Australian Textile Mills Textile Enterprise Agreement 2018 provides no clarity as to the type of work performed by its employees under the Agreement at clause 21, and Ms Macpherson’s evidence is that the relevant employer weaves textile fabrics for use by other manufacturers, and coats imported and Australian-made fabric for the purpose of curtain construction by its customers. Curtains are not manufactured by this employer. The fact that this employer applies the TCF Award to its employees and it is the Award underpinning the enterprise agreement at its workplace is not surprising. It would seem entirely appropriate given it manufactures textiles. Accordingly, the evidence given is not helpful. [290] Ms Macpherson’s evidence is that Bruck Textiles Pty Ltd was liquidated in or around 2014. The business and assets were subsequently sold to Australian Textile Mills Pty Ltd, continuing the textile manufacturing. The Bruck Textiles Enterprise Agreement 2011 is similarly unhelpful with respect to the work performed by employees under the agreement; simply citing a range of classifications at clause 21. The employer’s statutory declaration included in Ms Macpherson’s evidence nominates the kind of work to be performed under the agreement as “Manufacturing and supply of textiles and fabrics.” [291] There is insufficient evidence before the Commission that Bruck Textiles Pty Ltd was engaged in a like-industry to Vadain, and accordingly, I do not consider it appropriate to have regard to the fact that the TCF Award was declared by Bruck Textiles Pty Ltd by the employer to be the underpinning modern award. [292] Relevant to the Cash’s Apparel Solutions Pty Ltd Employee Enterprise Agreement 2019, the employer nominated “textile” as the industry in which it operates in when it sought to have the agreement approved. Ms Macpherson noted that Cash’s Apparel Solutions Pty Ltd manufactures textile products for the TCF industry, including textile labels for apparel and boots. There is simply no correlation with the kind of work employees perform at Cash’s to that performed at Vadain. [293] Relevant to the Wilson Fabrics Pty Ltd Warehouse & Samples Enterprise Agreement 2015, the Agreement nominates two types of employees covered by it; warehouse employees and samples/swatches employees. It does not detail the manufacture of curtains. The Form F16 completed by a representative of Bruck Textiles Pty Ltd declares the industry as “Window Furnishing Wholesaler”, and the Form F17 nominates the coverage as, “employees at [address] engaged in warehouse samples operations under the classifications set out in the Agreement.” Ms Macpherson’s evidence is the following: “At Wilson Fabrics, the rolls of coated curtain fabric are warehoused and if drops are required, they are measured and cut to specification. The products are then delivered to their customers, primarily Spotlight.” [294] It is not clear how much of the work performed by Wilson Fabrics Pty Ltd employees under the above agreement is curtain manufacturing work, as opposed to what it described in the Agreement as samples/swatches employees and warehouse samples operations. There is insufficient evidence before the Commission to conclude that employees of Wilson Fabrics Pty Ltd are primarily, materially or substantially manufacturing curtains for any weight to be given to Ms Macpherson’s evidence that Wilson Fabrics Pty Ltd’s enterprise agreement is [2020] FWC 487 63 underpinned by the TCF Award, and accordingly should have some influence on the determination of the matter presently before the Commission. [295] I have considered Vadain’s submissions that the Manufacturing Award applies to it as curtains are said to be considered ‘furnishing drapery at clause 4.10(ii) of the Manufacturing Award. I accept the submission that furnishing drapery appropriately describes curtains made by Vadain, both sheer and other fabric, which may include blockout curtains. It is noted that this contention is not disputed by the CFMMEU. I am satisfied that the Manufacturing Award can and does cover the work performed by the relevant employees at Vadain [296] I have considered the CFMMEU’s contentions that the TCF Award applies to Vadain’s operations by virtue of it being either in the textile industry, or in the allied manufacturing and fabricating industries within the TCF Award. [297] Relevant to the submission that Vadain is in the textile industry, I respectfully disagree with the CFMMEU’s assertions. I determine that clause 2 of the TCF Award, defining ‘textile industry’ describes the manufacture of those many items, not the later use of them. To resonate this, it is noted that embroidery is included in the definition of textile industry. Embroidery is the application on fabric of a design, words or numbers, and it is using the existing fabric (such as a shirt, towel or other item) that has already been manufactured. The person manually performing the embroidery would hold the relevant material to allow the embroidery to be performed onto the material. It has been expressly included in the definition of textile industry as the conclusion of the product, with work being applied to the manufactured textile. [298] If curtain manufacturing was intended to have been included in the definition of textile industry, in my view it would have been properly stated. The clothing industry is expressed on its own; accordingly the manufacture of clothes is automatically covered. The measuring of, cutting of, sewing, pleating, ironing and packaging fabric in the form of curtains is not contemplated within the definition of textile industry. [299] I do not agree with the CFMMEU’s contention that one should consider the TCF Award skill level classifications to aide in the determination of the coverage of the award, prior to considering the industry in which the relevant employees are performing work. To do so could result in very generic skill level classifications within modern awards being said to apply to industries not expressly covered in the respective modern award coverage clause. In my view, it is appropriate to determine if the TCF Award can apply by virtue of the industries named within the coverage clause before considering the duties of the relevant employees. [300] I have determined that I do not consider that Vadain is in the textile industry as described by the TCF Award. [301] The TCF Award defines the allied manufacturing and fabricating industries as included, but not limited to:  processing and treatment of raw cotton;  spinning, throwing, texturising, creping, extruding, mercerising, impregnating, processing and treatment of fibres, filaments, threads, tyre cords, or yarns of all descriptions including animal or vegetable fibres, artificial silk, cotton, flax, [2020] FWC 487 64 pure silk, filament, synthetic fibres or wool, or any of them combined with one another or with any other animal, natural or synthetic fibre;  weaving, including hand weaving braids, fabrics, materials and/or webbing tapes of all kinds and descriptions;  dyeing, bleaching, coating, calendering, cleaning and/or finishing of all types of fabrics, filament yarns, wool tops, yarns and articles of all descriptions up to and including the completed product;  printing including hand printing, screen and/or roller printing and stamping of fabrics and/or articles of all kinds and descriptions;  mending and/or repairing (including invisible mending) of fabrics and/or articles of all kinds and descriptions;  manufacturing of artificial silk, filament yarns, man made fibres and/or synthetic fibres;  knitting and the manufacture of hosiery, half hose, children’s hose, underwear, outerwear, jersey piecegoods, fabrics and like goods or materials;  storing, sorting, scouring, carbonising, mixing, blending and combing of wool and top-making;  storing, blending, carding or garnetting of wool, hair, or other fibres, felting, needling, milling, tentering and/or drying; and  every operation, process, duty and function or calling carried on or performed in or in connection with or incidental to any of the foregoing [302] The CFMMEU contends that mending and/or repairing (including invisible mending) of fabrics and/or articles of all kinds and descriptions could be said to be performed at Vadain, because as part of the manufacture of curtain product, Vadain employees mend and repair fabrics and completed curtains as part of Vadain’s production process. [303] Having regard to the principal purpose test of the relevant employees’ employment, I am not satisfied that the relevant employees perform work in the allied manufacturing and fabricating industries, noting that it is not an exhaustive list. There is insufficient synergy between the above tasks to the making of curtains as has been explained to me and as I have observed during the site visit. The incidence of mending and/or repairing of fabrics in the performance of work of the relevant employees is minute or not a significant measure in the consideration of why the employee is employed when contrasted against their other tasks. [304] Accordingly, I have determined that I do not consider that Vadain is in the allied manufacturing and fabricating industries as described (without limitation) within the TCF Award. Therefore, I find that the TCF Award does not have application to Vadain’s operations. The Manufacturing Award applies to Vadain’s operations. As I have determined that only one award applies to Vadain, it is not necessary to consider the material submitted as to the appropriate application of awards if it was found that the two awards covered Vadain’s operations. Simply, I have determined that the Manufacturing Award is not the most appropriate award; it is the only award that applies. What is the correct classification for each of the employees? [305] All of the relevant employees are classified by Vadain as C13 employees under the Manufacturing Award. The CFMMEU contends that some of the relevant employees should be classified as C12 employees, and others as C11 employees. [2020] FWC 487 65 [306] Schedule B of the Manufacturing Award, at B.2.1 details the classification levels, the classification title, minimum training requirement and the wage relativity to C10 classification. These are headings for each of the classifications, C14 – C1. They are headings within the clause, and in my view, should not be ignored. [307] With respect to the relevant classifications, the table in B.2.1, with the heading ‘Minimum training requirement’ is as follows: “C11 Engineering Production Certificate II, or Certificate II in Engineering – Production Technology, or Certificate II in Sampling and Measurement, or equivalent” “C12 Engineering Production Certificate I or Certificate II in Engineering, or equivalent” “C13 In-house training” [308] Clause B.3, Classification definitions assist with the definition of ‘or equivalent’ and is as follows: “• Any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or Where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.” [309] The C12 classification definition is detailed below: “B.3.5 Wage Group: C12 (a) Engineering/Manufacturing Employee—Level III (i) An Engineering/Manufacturing Employee—Level III is an employee who has completed an Engineering Production Certificate I or Certificate II in Engineering or equivalent so as to enable the employee to perform work within the scope of this level. (ii) An employee at this level performs work above and beyond the skills of an employee at the C13 level and to the level of their skills, competence and training:  is responsible for the quality of their own work subject to routine supervision;  works under routine supervision either individually or in a team environment;  exercises discretion within their level of skills and training;  assists in the provision of on-the-job training.” [2020] FWC 487 66 [310] It expressly states that an engineering manufacturing employee – Level III, that is, a C12 classification, is an employee who has completed stated qualifications or equivalent, to enable the employee to perform work within the scope of this level. [311] The CFMMEU’s contentions during oral closing submissions is that the Commission should not have regard to B.3.5(a)(i) as it would not be possible for an employee in a curtain manufacturing business to obtain a relevant qualification. The following was discussed:174 Ms Wiles: “And Commissioner, that's really what we're saying. We're saying that the Manufacturing Award skill level descriptors, it's a bit like fitting, you know, a square in a hole, really. They don't naturally fit – this is our argument – they don't naturally fit the work that production employees do in curtain construction. They're not an easy fit and the really strong focus of the Manufacturing Award as I said earlier, is on the attainment of formal qualifications or in the recognition of equivalent experience. Commissioner: I want to understand your submission. If I find the Manufacturing Award is the most appropriate award - - - Ms Wiles: Yes. Commissioner: Having a look at C12, at B.3.5, as I understand your submission you're saying even if (a)(i) is not met it can be ignored, and you move on to (a)(ii)? Ms Wiles: Correct. Commissioner: So why would I ignore (a)(i)? Ms Wiles: Because the word, 'or equivalent' - - - Commissioner: Won't be met. Ms Wiles: Can't be met. Commissioner: All right, in this particular instance. Ms Wiles: Or virtually – in the current circumstances. I mean, we're not aware of a qualification that really is going to meet the competencies in the engineering production certificate I or certificate II in engineering. Commissioner: Okay but how does the Commission ignore that entire subsection? Ms Wiles: Yes, Commissioner, maybe if I take you to the next skill level. I think the point is actually seen here, so if you go to wage group – so B.3.6, wage group C11, so again we've got the engineering-manufacturing employee and his one's level 4, and then at subheading, 'laboratory tester', and I agree with you and I think the drafting is not the clearest [2020] FWC 487 67 but the point we're making is that to get to C11 these descriptors provide three pathways to get there. So the first one is under (a)(i). Again, if you've got the formal qualifications in engineering production, et cetera, or equivalent then you automatically get into C11. That's one way to get in. The second way is under (ii), if you're a laboratory tester who also has completed a certificate or equivalent in sampling or measurement, then that's the second way an employee can get in. Commissioner: Only if you're a laboratory tester. Ms Wiles: That's right. So that's right. So we've got distinct limbs for these classes of employees. And then we go to the third limb which is really the sort of general manufacturing descriptor for everybody else in the manufacturing industry that doesn't fit into 1 or 2. Commissioner: So you say that for an engineering employee getting through B.3.6(a)(1) - - - Ms Wiles: Yes. Commissioner: If you're looking at the test, you're getting through B.3.6(a)(ii). Ms Wiles: Correct. Commissioner: And if you're not those sorts of employees you're getting B.3.6(a)(iii)? Ms Wiles: That's correct. That's our submission. And as I said, we say if that submission is not accepted then really the skill level classifications in the Manufacturing Award above C13 have no work to do for any non trade, non qualified manufacturing employee, and we just don't accept that that would be the intended outcome of award modernisation. You know, it would just beggar belief that tens of thousands of manufacturing employees would be shut out of the skill level classification structure in that way. Commissioner: Unless there's an equivalent qualification. Ms Wiles: That's right, unless there is. And in that qualification that those competencies would have some nexus with the competencies in the formal qualifications, say in the first limb or the second limb. And then just for completeness, as I said, you know, the union doesn't have a claim for any employee in relation to C10, but if you go to B.3.7 and this obviously is the trades level, you only get into this level if you do have a trade under (i). And then interestingly, under (i) you do actually have a furnishing industry level tradesperson level 1 who would be someone with a formal qualification. And then obviously in 2, you've got the engineering manufacturing tradesperson. And then all - - - [2020] FWC 487 68 Commissioner: So what would be a furnishing industry tradesperson level 1? Ms Wiles: Pardon? Commissioner: What would be a furnishing industry tradesperson level 1? Ms Wiles: I'm not sure, to be honest. Commissioner: Upholstery, is that the trade? Ms Wiles: Upholstery, probably, yes, it is. I think the do an apprenticeship. I think that's right. Look, I'd sooner be corrected on that but it's my understanding - - - Commissioner: It wouldn't be - - - Ms Wiles: I'd have to (indistinct) with the people in the union who did that apprenticeship. Commissioner: Yes. Ms Wiles: Yes, French polishing and all sorts – you know. Commissioner: But it wouldn't be carpentry because that would be under a different award. Ms Wiles: That would probably be under the Timber Award. But yes, it probably is an apprenticeship type qualification in upholstery, I imagine, yes. But I don't know. Yes. Commissioner: So if somebody is achieving an upholstery apprenticeship would there be other pathways less than an apprenticeship? You're critical of the fact that there's not necessarily a curtain certificate to do, curtain manufacturing certificate to do, but what if there was something for an upholsterer that was less than an apprenticeship but certificates along the way? Wouldn't that allow them to be a C12 or C11? Ms Wiles: I'm not sure, Commissioner. Commissioner: Okay. Ms Wiles: I mean, I have - - - Commissioner: You haven't researched them. Ms Wiles: Well, we haven't researched it but I also have my doubts again because of the way that the limbs are structured and the use of the word, 'or equivalent', in relation to the engineering qualifications. Commissioner: But you can at C10 be floor finisher and/or floor [2020] FWC 487 69 coverer/tradesperson. It's not all about engineering and manufacturing, is it? There are pathways, it would seem, for tradespersons who are involved in carpet laying - - - Ms Wiles: Yes. Commissioner: Or upholstery to become tradespersons. Ms Wiles: Yes. Commissioner: And it may be that the people representing them might also have worked out qualifications that are less than tradespersons. There might be equivalent qualifications to the engineering production certificate I or certificate II in engineering. But you don't know. Just because it hasn't been done in curtain manufacturing doesn't mean it hasn't been done in other roles. Ms Wiles: No, that's correct. I mean, my submissions are about, well, exactly that, that in terms of curtain manufacturing it's extremely difficult to see how if they did have a qualification at a certificate level, how that would be equivalent to a engineering production certificate II or certificate II in engineering production technology. It's just – I think the nexus is not very close in terms of the competencies that would be required. Commissioner: But it doesn't mean that other occupations haven't achieved an equivalent. We just don't know. Ms Wiles: That's correct. And I take your point on that. I don't know and I'm not making any submissions about other trades or – my submissions were confined to what we say is the difficulty for production employees who make curtains, using the skill level structure effectively in terms of trying to progress within the structure. And partly we say that because if our construction of how these skill levels work is not accepted then conversely we say that leads to a conclusion or a – it leads to a, what's the word – it would indicate that the classifications are not as appropriate as those in the TCF award. Commissioner: Yes, I understand that's your submission.” [312] Vadain referred the Commission to a decision of Deputy President Gostencnik in Franca Vicconte; Rosario Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 6106. The decision was subject to appeal, [2019] FWCFB 165, and quashed in respect to some paragraphs, but not the ones relevant to this present matter. In the decision, the Deputy President was tasked, among other things, to determine if Ms Viceconte was appropriately classified in accordance with the Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Award). [313] Fresh Cheese had classified Ms Viceconte as a Level 2 employee under the Food Award. Ms Viceconte maintained that she should be classified as a Level 5 employee. The [2020] FWC 487 70 Level 5 definition provided that an employee at Level 5 is an employee who has either completed an AQF Certificate 3 in Food Processing, or has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5. [314] Ms Viceconte had completed a Certificate III in Process Manufacturing, however it was not, as expressly prescribed by the classification description, an AQF Certificate 3 in Food Processing. The Deputy President found that the first limb had not been met, and considered whether Ms Viceconte had met the alternative limb, as to whether she had equivalent recognised enterprise or industrial experience etc. The Deputy President was tasked with determining, having regard to the words ‘equivalent’ and ‘recognised’, if the Certificate III in Food Processing was equivalent to the AQF Certificate III in Food Processing. He found it was not. [315] The Deputy President then had further consideration of Ms Viceconte’s other experience in the workplace, having regard to the many units of study undertaken by her in completion of the Certificate III in Food Production. He ultimately found that she did not meet the relevant criteria of Level 5. The Deputy President further considered if Ms Viceconte was a classification Level 4, and after deciding she was not, determined that she was a classification Level 3; not because she held the required AQF Certificate I in Food Processing, but because she had equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 3. [316] Having regard to the decision in Vicconte, I am satisfied that it is appropriate for the Commission to have regard to the heading of the columns in B.2.1 of the Manufacturing Award where it is stated ‘Minimum training requirement’. To be classified as a C12 employee, an employee must have, as a minimum, an Engineering Production Certificate I or Certificate II in Engineering, or equivalent. ‘Or equivalent’ is helpfully defined within the Manufacturing Award. It is not impossible for an employee performing curtain manufacturing at Vadain to have achieved such a qualification in their earlier work life, or even independently at their own expense and in their own time. It is simply that there appears not to be, on the basis of Ms Wiles’ submissions, much calling for such a qualification given its weighty balance on manufacturing, which in the CFMMEU’s submissions is demonstrative of why employees working in curtain manufacturing would be highly unlikely to have such qualifications. [317] It is not possible to disregard clause B.3.5(a)(i) where it describes the qualifications required to be classified as a C12 employee. The paragraph has work to do, and it cannot be disregarded. I agree with the Deputy President in Viceconte, and it is an important consideration to determine if the qualification is held or not. There is the alternative if the expressed qualification is not held; the ‘or equivalent’ consideration. In each of the employees the subject of this dispute, none hold the relevant, expressed qualification, nor any of the training recognised as ‘or equivalent’. [318] The employees submitted by the CFMMEU to be classified as C11 employees do not hold the relevant, required qualifications, nor the alternative, ‘or equivalent’ training. [319] The CFMMEU’s argument that the Commission should not have regard to the qualifications said to be required, and look at the competencies only is rejected. On a proper construction of the Manufacturing Award, an employee’s classification under the [2020] FWC 487 71 Manufacturing Award is determined by the combination of the “qualification or experience” criteria and the “competencies” set out for ach classification level. [320] The first limb for each of the employees in this matter has not been met. It is not impossible for it to have been met, however it appears that there has not been an industry effort to tailor a relevant Certificate I course for the kind of work performed by the employees, or for curtain manufacturing generally. This is no criticism of any body, organisation or employer. Simply because it has not been done does not mean that it cannot be done. [321] I determine that it is not necessary to have regard to the competencies within classifications C12 and C11 to determine if each of the relevant employees perform those competencies or indicative tasks. However, I do wish to say the following. Is the supervision direct or routine? [322] If it was necessary to determine if the relevant employees “works under direct supervision either individually or in a team environment” as per classification C13, or “works under routine supervision either individually or in a team environment” as per classification C12, on the evidence before the Commission, I would find that the relevant employees work under routine supervision either individually or in a team environment. [323] The Commission prefers the evidence of the employees represented by the CFMMEU as to how often their work was supervised or observed by Mr Foster or Mr Vong Yang. Whilst Mr Foster no doubt has an important and very responsible role in the business, he is not directly supervising nearly 40 production workers either individually or in a team environment. [324] I do not accept the evidence that Mr Foster is on the production floor up to approximately 85% of his working time. Even on Ms Schouten’s evidence, he is in the office approximately 10% of his time. When he is on leave, work is still performed by the production employees, albeit at a slower rate. Work simply does not stop because Mr Foster is on leave. No doubt, Mr Vong Yang supervises employees when Mr Foster is not present, but he cannot alone directly supervise up to 40 production employees. [325] Mr Vong Yang spends the vast majority of his time on the production floor assisting production employees, but also performing production work, such as the drop cutter. I accept Mr Ze Vue’s evidence that he largely works unsupervised. He meets the delivery drivers, accepts stock from them, enters the detail onto the computer system and moves stock to where it needs to be. It is not a highly skilled role, but he is clearly competent at what he does, despite the unnecessary grumbling from the Respondent that he might spend too much time talking to the delivery drivers; it should not be expected that Mr Ze Vue is to be curt to the delivery drivers. It should be expected that he appropriately greet them and form a relationship to the extent that the delivery and receipt of goods is transactional, but best done when pleasantries are used. [326] On the evidence of the employees, I would have no hesitation in determining that they work under routine supervision and not direct supervision. Mr Foster’s evidence that he could regularly observe Ms Laws when cutting sheer curtains is somewhat overstated; if he were doing that regularly it would be at the neglect of the other near-40 other workers. In any [2020] FWC 487 72 event, once a person is competent at sheer cutting, on the evidence before the Commission, it requires very little supervision; if any. Routine, not direct supervision is adequate. [327] Relevant to the supervision provided at the packing station, I consider that there would be very little supervision offered by Mr Foster or Mr Vong Yang, especially given the experience of Mr John Fuller. Mr Foster’s evidence is that Mr Fuller is very experienced, and it is often Mr Fuller who trains new employees.175 I am not satisfied that Mr Foster often opens up packaged goods to check on the quality of the packing or that he spends any considerable period of time overseeing the work performed in the packing area. Exercise of discretion [328] Regarding the other competencies described for classification C12, I find that each of the relevant employees, the subject of this claim, exercises discretion within their level of skills and training. The employees are not automatons. Yes, they do work in accordance with standard operating procedures and established criteria as per the competency in C13, however, they do work with some limited discretion at their respective work stations. To suggest otherwise is an unfortunate and somewhat distasteful attempt to ‘dumb-down’ the employees’ competencies. [329] I have discussed in some part Mr Ze Vue’s functions. He doesn’t put his hand up all day, requiring visitation by Mr Foster or by Mr Vong Yang to provide instructions on how to do his work or how to overcome obstacles. His evidence, which matches Mr Foster’s is that he might speak with Mr Foster approximately four times per day, and the same with Mr Vong Yang. For the remainder of the day he is tasked with getting on with his job and he does so reasonably autonomously. Whether Vadain likes it or not, employees do approach Mr Ze Vue for assistance. [330] With respect to Mr Hussaini, he is a skilled machinist. He attends to the sewing machine as is necessary, changing needles due to different types of fabric or when they break. He may be required to change thread on account of different types or colours of fabric. Further, he is tasked with attempting to correct others’ errors by sewing over pin holes created by others. This is quite a skilled task, especially with curtains where a customer could quite readily complain if they found pin holes on account of sunlight shining through their curtains. Mr Hussaini doesn’t perform these tasks by asking Mr Foster each time if he is permitted to do so; he corrects these errors around the performance of his ordinary work. [331] Mr Hussaini and Mr Nkeraguhiga use their discretion to cut any thread with hand scissors that has not been cut by the automatic cutter; this is not a skilled task. It is an obvious, menial task. I am satisfied, however, that the two employees use discretion to perform minor maintenance on the machines that they use. If the machine is not working efficiently, they each use their judgment to attempt to resolve the issue. Only if the machine requires more complicated review do the two employees involve Mr Foster or Mr Vong Yang. [332] Mr Yang and Ms Laws perform their tasks on the sheer cutting table with less discretion than Mr Ze Vue or Mr Hussaini. The sheer cutting role is not a particularly skilled role; yes, one needs to be able to cut straight and keep wastage to a minimum. There is limited discretion utilised around cutting around obvious flaws to fabric, or ‘rail-roading’ a printed pattern, which occurs only approximately 10-15% of the time. I would be less [2020] FWC 487 73 inclined than the other roles to determine that sheer cutting employees exercise discretion within their level of skills and training. [333] For employees in the packing area, there appears to me to be a minimal amount of discretion required to perform the role. The task of pencil pleating and knife pleating, completed in the packing area is a reasonably skilful role, requiring the packing employee to work with another packing employee to pull at threads to cause the pleating. The parameters, however, of how wide the curtain must end up being after the pleating is affected, appears to me to limit the amount of discretion the employee is afforded in performing such a task. The employee cannot decide to pull a pleat too thin, because it will inevitably result in the width of the curtain being too small. Similarly, the employee cannot decide to pull a pleat too thick as it would result in the width of the curtain being too large. On-the-job training [334] On the evidence before the Commission, most of the relevant employees have provided some on-the-job training to new employees. In the case of Mr Ze Vue, he nominated quite a few employees he has assisted to train. I accept the evidence of all the relevant employees, and I do not accept Mr Foster’s evidence that he performs the predominant training of new recruits. Any training Mr Foster provides to new recruits must take into consideration Mr Foster’s own ‘buddy’ system where other employees are assisting the new recruit with their on-the-job training. [335] Mr Foster’s evidence is that Mr John Fuller most often trains new recruits in the packaging area. The training of new employees is not simply left to Mr Foster and Mr Vong Yang. [336] The criteria in classification in C12 is simply that the employees assist in the provision of on-the-job training. It does not require employees seeking to be classified as a C12 employee to be the predominant or sole trainer. I would have no hesitation in finding that this criteria has been met for all relevant employees. Responsible for the quality of their own work subject to routine supervision [337] There is no doubt that the system instituted by way of the problem racks shifts responsibility from production employees to Mr Foster to deal with problem issues. I do, however, consider the evidence of Vadain to be overstated as Mr Foster will only ever know about the items in the problem racks, and not if production employees have at least made an attempt to fix, however minor, the curtain they are attending to. I consider that the relevant employees are responsible for the quality of their work subject to routine supervision. There was no evidence that the problem racks have ever been overflowing with very minor errors that could have easily attended by the production employee. If qualified, could production employees achieve greater than C13? [338] In my view, but for the qualifications that the relevant employees must possess to be properly classified as a C12 employee, or have qualifications that are equivalent, I would classify each of the relevant employees as a C12 employee. I certainly would not classify Mr Hussaini, Ms Laws or Mr Yang as C11 employees, as I would not be satisfied that they work from complex instructions and procedures. Nor would I find they co-ordinate work in a team [2020] FWC 487 74 environment, or work individually under general supervision. I have earlier found that the employees work under routine supervision, and I would not accept that they work under general supervision. Conclusion [339] In accordance with my reasons above, I find that the questions for arbitration are answered as follows: Question 1: “What award applies to the employees?” The Manufacturing and Associated Industries and Occupations Award 2010 Question 2: “What is the correct classification for Mohammed Hussaini under the applicable award?” C13 Question 3: “What is the correct classification for Cyriaque Nkeraguhiga under the applicable award?” C13 Question 4: “What is the correct classification for Pao Ze Vue under the applicable award?” C13 Question 5: “What is the correct classification for Andrew Yang under the applicable award?” C13 Question 6: “What is the correct classification for Kim Maria Laws under the applicable award?” C13 [340] The dispute as notified is resolved in accordance with this decision. [341] By way of a postscript only, it is noted that Vadain has chosen to implement an above- award pay system that recognises completed years of service. Ms Schouten’s evidence is that subject to significant unexpected losses experienced by Vadain, it intends to continue to pay above-award payments and increase them according to the wage rate increases in the Manufacturing Award. [342] On the rates provided to the Commission relevant to 1 January 2019 rates of pay, employees on completion of one years’ service were to be paid greater than the C13 rate, and on completion of three years of service, the pay rate was equivalent to the C12 rate. The rate payable by Vadain on completion of year 4 exceeded the C12 rate and went almost half-way [2020] FWC 487 75 to the gap between the C12 rate and the C11 rate. On that basis, it is noted that some of the employees the subject of this dispute will be paid at the rate of a C12 employee. COMMISSIONER Appearances: A J Smith for the Applicant, instructed by L Radik of Carter Newell Lawyers V Wiles for the Respondent. Hearing details: 24 June 2019, Brisbane. 25 June 2019, Brisbane. 26 June 2019, Brisbane. 6 August 2019, Brisbane. 5 September 2019, Brisbane. Final written submissions: Applicant’s Closing Submissions, 2 September 2019. Respondent’s Final Written Submissions of the Respondent, 2 September 2019. Printed by authority of the Commonwealth Government Printer <PR716288> 1 Transcript of proceedings; PN6 – PN85. 2 PN64 – PN80. 3 PN568 – PN573. 4 PN432 – PN436, PN578 – PN580. 5 PN590 – PN600. 6 PN291 – PNPN308. 7 PN640 – PN641. 8 PN329 – PN333. 9 PN318 – PNPN321. 10 PN324 – PN328. 11 PN715. 12 PN501 – PN506. 13 PN438 – PN440. 14 PN441 – PN446. [2020] FWC 487 76 15 PN448 – PN450. 16 PN451 – PN466. 17 PN467 – PN476. 18 PN480. 19 PN481. 20 PN486 – PN487. 21 PN527 – PN528. 22 PN604 – PN613. 23 PN642 – PN645. 24 PN547 – PN548. 25 PN581 – PN586. 26 PN537 – PN544. 27 PN360 – PN366. 28 PN367 – PN373. 29 PN340 – PN343, PN646 – PN647. 30 PN413 – PN425. 31 PN378 – PN402. 32 PN402 – PN404. 33 PN995. 34 PN1002 – PN1003. 35 PN1495 – PN1497. 36 PN961 – PN970. 37 PN1071 – PN1085. 38 PN1536 – PN1544. 39 PN1031 – PN1050. 40 PN1016 – PN1030. 41 PN1325 – PN1332. 42 PN1333 – PN1335. 43 PN1336 – PN1342. 44 PN1401 – PN1427. 45 PN1343 – PN1379. 46 PN1380 – PN1394. 47 PN1449. 48 PN1450 – PN1457. 49 PN1447 – PN1448. 50 PN1458 – PN1476. 51 PN1265 – PN1302. 52 PN1308 – PN1316. 53 PN1086 – PN1095. 54 PN1101 – PN1106. 55 PN1096 – PN1097. 56 PN1111 – PN1155; PN1185 – PN1188. 57 PN1500 – PN1507. 58 PN1509. 59 PN1511 – PN1517. 60 PN1550 – PN1553. 61 PN1520 – PN1527. [2020] FWC 487 77 62 PN1529 – PN1535. 63 PN1558 – PN1562. 64 Macquarie Dictionary, <https://www.macquariedictionary.com.au>, 4 November 2019. 65 (1985) 159 CLR 323, 333. 66 Cf: HSU v North Eastern Care Network, (1997) 79 FCR 43, [61]. 67 (2008) 177 IR 364, 377 – 378. 68 [2014] FCAFC 148, [31] – [35]. 69 Stannus v CPA Group [2017] FWC 5275, [20]. 70 [2018] FCCA 545, [30]. 71 Applicant’s submissions – merits, 17 June 2019, Annexure 1, Annexure 2. 72 Manufacturing and Associated Industries and Occupations Award 2010, Schedule B, B.2.1. 73 Ibid, B.3.4. 74 Applicant’s submissions – merits, 17 June 2019, Annexure 3, Annexure 4. 75 Textile, Clothing, Footwear and Associated Industries Award 2010, Schedule C, C.2.5. 76 Statement of Ms Elizabeth MacPherson, 3 June 2019, Exhibit R2; Supplementary statement of Ms Elizabeth MacPherson, 16 July 2019, Exhibit R6. 77 Statement of Mr Cyriaque Nkeraguhiga, 30 May 2019, Exhibit R1. 78 Ibid, Attachment CN-1. 79 Ibid, Attachment CN-2. 80 PN1641 – PN1649. 81 PN1650. 82 PN1784 – PN1802. 83 PN1680 – PN1696. 84 PN1662 – PN1666. 85 PN1611 – PN1615. 86 PN1616 – PN1618. 87 PN1697 – PN1703; PN1826 – PN1847. 88 PN1652 – PN1654. 89 PN1879 – PN1898. 90 PN1848 – PN1856; PN1914 – PN1926. 91 PN1858 – PN1877. 92 PN1900 – PN1911. 93 PN1953 – PN1958. 94 Statement of Ms Kim Laws, 28 May 2019, Exhibit R3. 95 PN2268 – PN2270; PN2353 – PN2356. 96 PN2357 – PN2416. 97 PN2262 – PN2263. 98 PN2261; PN2431 – PN2437. 99 PN2253 – PN2259. 100 PN2271 – PN2274; PN2588 – PN2592. 101 PN2320 – PN2342; PN2567 – PN2579. 102 PN2584 – PN2587. 103 PN2417 – PN2430. 104 PN2343 – PN2350. 105 PN2275 – PN2279; PN2288 – PN2292. 106 PN2454 – PN2470. 107 PN2474 – PN2489; PN2501 – PN2504. [2020] FWC 487 78 108 PN2280. 109 PN2513 – PN2525. 110 PN2267 – PN2268; PN2526 – PN2533. 111 PN2534 – PN2537. 112 Statement of Mr Pao Ze Vue, 30 May 2019, Exhibit R4. 113 PN2652 – PN2655. 114 PN2676 – PN2692; PN2728 – PN2739. 115 PN2701 – PN2715; PN2744 – PN2747. 116 PN2790 – PN2809. 117 PN2781 – PN2789. 118 PN2667 – PN2671. 119 PN2768 – PN2769. 120 PN2675; PN2810 – PN2814. 121 PN2663 – PN2667. 122 PN2770 – PN2779. 123 PN2854 – PN2861. 124 PN2660 – PN2662; PN2762 – PN2765. 125 PN2672; PN2815 – PN2819. 126 PN2692 – PN2695; PN2820 – PN2842. 127 PN2835 – PN2842; PN2863 – PN2867. 128 PN2870 – PN2901. 129 Statement of Mr Andrew Yang, 30 May 2019, Exhibit R5. 130 PN2989 – PN3002; PN3280 – PN3298. 131 PN2951 – PN2956; PN3003 – PN3013. 132 PN2942 – PN2950; PN3025 – PN3043. 133 PN3055 – PN3074. 134 PN3272 – PN3274. 135 PN2964 – PN2968. 136 PN2973 – PN2977. 137 PN2926; PN2979 – PN2982; PN3126 – PN3128. 138 PN2957 – PN2963 139 PN3312 – PN3376. 140 PN3014 – PN3024; PN3260 – PN3263. 141 PN2969 – PN2972. 142 PN3187 – PN3245. 143 PN2983 – PN2984; PN3153 – PN3171. 144 PN2986. 145 PN3135 – PN3152. 146 PN3305 – PN3311. 147 Statement of Mr Mohammed Hussaini, 30 May 2019, Exhibit R7. 148 PN3552 – PN3554. 149 PN3585 – PN3588; PN3630 – PN3634. 150 PN3555 – PN3556. 151 PN3590 – PN3600. 152 PN3575 – PN3577. 153 PN3578 – PN3582. 154 PN3608 – PN3613. [2020] FWC 487 79 155 PN3616 – PN3619; PN3648 – PN3650. 156 PN3614. 157 PN3564 – PN3569. 158 PN3603 – PN3608; PN3669 – PN3679. 159 PN3637 – PN3641; PN3654 – PN3664. 160 PN3642. 161 PN3574. 162 PN2186 – PN2191. 163 PN2195 – PN2204. 164 PN2182 – PN2208. 165 [1996] IRCA 166. 166 PR925731, [9]. 167 Health Services Union of Australia v North Eastern Care Network (1997) 79 FCR 43, 61. 168 Textile, Clothing, Footwear and Associated Industries Award 2010, clause 3, ‘textile industry’. 169 Manufacturing and Associated Industries and Occupations Award 2010, cl. 24.3(c), Schedule B, B.3.4, B.3.5, B.3.6, B.4.1, B.4.2, B.4.3, B.4.4. 170 Ibid, Schedule B. 171 Textile, Clothing, Footwear and Associated Industries Award 2010, Schedule C, C.1.1, C.1.2, C.1.9, C.1.15. C.1.21. 172 Manufacturing and Associated Industries and Occupations Award 2010, Schedule B, B.3.3, B.3.4, B.3.5, B.3.6. 173 Ibid, Schedule B, B.4.3. 174 PN4100 – PN4150. 175 Statement of Mr Brian Foster at [86].