Alcoa of Australia Limited

[2018] FWCA 7624

This document has been amended to correct a typographical error in the identifying code.

Associate to Deputy President Beaumont

Dated 4 January 2019

[2018] FWCA 7624 [Note: An appeal pursuant to s.604 (C2019/41) was lodged against this decision.]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Alcoa of Australia Limited

(AG2018/919)

Aluminium industry
Deputy President Beaumont	PERTH, 20 DECEMBER 2018

Application for termination of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014.

Introduction

On 12 March 2018, Alcoa of Australia Limited (Alcoa) filed an application (the Application) under s 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (the Agreement).[1] The Agreement was approved by the Commission on 10 March 2014, and commenced operation on 17 March 2014.[2] It had a nominal expiry date of 31 March 2017.[3]The Application was opposed by the Australian Workers’ Union (AWU) who had elected to be covered by the Agreement. The Fair Work Commission (the Commission) made a note to that effect at the time of approving the Agreement.

A hearing was held on 17 – 21 September 2018 after the filing of extensive witness statements and submissions by both parties. Mr Dixon of counsel appeared on behalf of Alcoa, and Mr Crawford represented the AWU.

Regrettably, the reasons for the decision make for a long read. Therefore, from the outset, the parties are informed that I have decided that the Agreement that is the subject of this Application must be terminated because the preconditions in s 226 of the Act are met. I am satisfied that it is not contrary to the public interest to terminate the Agreement, and I consider it appropriate to do so.

Given the length of this decision, and to aid the reader, I have utilised headings throughout, and produce the following index to the reasons for the decision.

Part #	Heading	Paragraph
1	Introduction	[1] – [3]
2	Witnesses	[4] – [5]
3	Background and Evidence
3.1	Alcoa's corporate structure	[6] – [8]
3.2	Alcoa's operations	[9] – [10]
3.3	The workforce and industrial instruments	[11] – [18]
3.4	The changes sought by Alcoa	[19] – [21]
3.4.1	Minimum manning - clause 24	[22] – [57]
3.4.2	Supplementary shift requirements - clause 11	[58] – [70]
3.4.3	Rates for labour hire personnel - clause 23	[71] – [82]
3.4.4	Early retirement and redundancy - clause 17	[83] – [87]
3.4.5	Hours of work and rostering requirements - clause 10	[88] – [90]
3.4.5.1	Hours of work - clause 10	[91] – [98]
3.4.5.2	Shift rosters and patterns - clause 10	[99] – [120]
3.4.6	Dispute settlement procedures - clause 19	[121] – [160]
3.4.7	Disciplinary procedures - clause 18	[161] – [165]
3.4.8	Extended paid sick leave - clause 13	[166] – [168]
3.4.9	Union structures and arrangements - clause 4.5	[169] – [183]
3.4.10	Disputes arising from the interpretation of clause 4.5(c)	[184] – [189]
3.5	AWU's evidence in general regarding cooperation and flexibility	[190] – [191]
3.6	Negotiations for a new Alcoa AWU enterprise agreement	[192] – [214]
3.7	Concessions	[215] – [220]
4	Undertaking	[221] – [221]
5	Financial position of Alcoa	[222] – [234]
6	Legislative scheme	[235] – [244]
7	Alcoa's Submissions
7.1	Section 226	[245] – [245]
7.1.1	Not contrary to the public interest	[246] – [246]
7.1.2	Appropriateness	[247] – [248]
8	AWU Submissions
8.1	General	[249] – [259]
8.2	Not contrary to the public interest	[260] – [264]
8.3	Appropriateness	[265] – [270]
9	Section 226(a) - The public interest	[271] – [372]
9.1	Consideration - The public interest	[273] – [313]
10	Appropriateness	[314] – [315]
10.1	Consideration - Appropriateness	[316] – [363]
11	Conclusion	[364] – [366]

Witnesses

The following witnesses gave evidence on behalf of Alcoa:

·     Mr Matthew Gleeson, Director of Employee Relations, and Learning and Development (Mr Gleeson);
·     Mr Liam Troy Smith, Maintenance Manager Huntly Mine (Mr Smith); and
·     Mr Justin Fennessy, Whiteside Production Manager, Kwinana Refinery, (Mr Fennessy).

The witnesses for the AWU were:

·     Mr Stuart Lawrence Allen, Bayer process operator in Precipitation, Pinjarra Refinery, and President of the AWU Alcoa Pinjarra Refinery Sub-Branch (Mr Allen);
·     Mr Simon Price, full-time HR Associate (AWU Convenor), Huntly Mine (Mr Price);
·     Mr Chris King, full-time AWU Convenor, Willowdale mine (Mr King); and
·     Mr Nicholas Kamper, AWU National Economist (Mr Kamper).

Background and Evidence

3.1Alcoa’s corporate structure

Alcoa operates one of the world’s largest integrated bauxite mining, alumina refining and aluminium smelting systems.[4] Its main operations in Western Australia involve the mining and refining of bauxite used in the manufacture of aluminium metal. The bulk of alumina produced in Western Australia is exported to smelters around the world, including to the regions of South-East Asia, China, the Middle East, South America, and North America.[5]

Effective 1 November 2016, Alcoa Inc was renamed Arconic Inc. The new entity incorporated Alcoa Inc’s engineered products and solutions, global rolled products (other than rolling mill operations in Warrick Indiana, and the 21.5% interest in Ma’aden Rolling Company in Saudi Arabia) and transportation and construction solutions businesses.[6]

Alcoa Corporation was formed to hold Alcoa Inc’s bauxite mining, alumina refining, aluminium production, cast products, and energy businesses in addition to other operations.[7] Alcoa is owned by Alcoa Corporation and Alumina Limited. Alumina Limited is an Australian resource company with a specific focus on alumina, and the feedstock for alumina smelter.[8]

3.2Alcoa’s operations

Alcoa’s operations in Western Australia extend to two bauxite mines (Huntly and Willowdale), which supply bauxite to the three Alcoa refineries (Kwinana, Pinjarra, and Wagerup). There are two dedicated port facilities (Kwinana and Bunbury) and three Alcoa farmland operations (Pinjarra, Wagerup, and Boddington).[9] In addition to Alcoa’s mining and refinery operations in Western Australia, Alcoa operates a smelter in Portland, Victoria.[10]

It was said that Alcoa has approximately 3800 employees in Western Australia; 2650 in its refineries, and 840 in its mining operations, with the balance spread across farmlands and offices in Perth, Pinjarra, and the Bunbury port.[11]

3.3The workforce and industrial instruments

In addition to the Agreement there are three other agreements in operation at Alcoa namely, the Alcoa of Australia, WA Operations (Mechanical Trades) Agreement, 2017 (the 2017 AMWU Agreement);[12] the Alcoa of Australia, WA Operations (CEPU Electrical Trades) Agreement, 2018;[13] and the Alcoa World Alumina Australia, Pinjarra and Wagerup Power Stations Enterprise Agreement, 2014.

The Agreement currently covers the ‘AWU workforce’. Within that workforce there are approximately 1530 employees across Alcoa’s WA Operations at Huntly, Willowdale, Kwinana Refinery, Wagerup Refinery, Pinjarra Refinery, and Marrinup Nursery. The employees covered are members, or eligible to be members, of the AWU employed in the various job descriptions located at Appendices 10 and 11 of the Agreement.

The job descriptions essentially include:[14]

Refineries	Mining
Process/Refinery Controller/Operators	Equipment Operator/Carers for mobile and fixed plant and equipment
Area Process Controller/Operators	Mineworkers
Operations Centre Trainers	Mine Site Trainers
Refinery Shift Operators	Mobile Service Offers (Huntly) – Mobile Maintenance
Equipment Carers	Stores Officers (Huntly)
Lubrication Technician
Scaffolder/Planner
Pump Packer/Pump Carer
Stores Officer/Controller

The Aluminium Industry Award 2010 (the AIA) has covered (and covers) the employees employed in Alcoa’s Western Australian operations in the classifications in Schedule B of that award.

Alcoa says that the Agreement is no longer suitable. In the proceedings, the AWU drew comparison between their proposed agreement, and the other enterprise agreements covering employees in Alcoa’s Western Australian operations.

Specifically, the AWU drew attention to the 2017 AMWU Agreement, which was approved by the Commission on 25 October 2017.[15] The content was said to be similar to that of the Agreement, particularly the redundancy clauses of the 2017 AMWU Agreement. It was asserted that while Alcoa opposed the roll-over of a no forced redundancy clause in the negotiations to replace the Agreement (the clause was subject to limited exceptions), it had agreed to the condition in the 2017 AMWU Agreement.[16]

Mr Smith gave evidence that there was a marked difference between the workforce covered by the 2017 AMWU Agreement and that covered by the Agreement. He said that the ‘AMWU workforce’ consisted of mechanical tradespersons, and qualified employees who perform mainly maintenance work.[17] He said it was the case that these employees were easy to redeploy across different locations.[18]

In contrast, the ‘AWU workforce’ was larger, and sat within three separate streams: process operators (operators in refineries), machine operators at the mines, and trades assistants or service personnel.[19] The streams were not inter-relatable; which meant a lesser ability to redeploy the personnel.[20] Mr Smith continued that the ‘AWU workforce’ was, in effect, more heavily impacted by technological changes.[21] In respect to the Application, I consider that nothing turns on this point regarding the content of the 2017 AMWU Agreement. Mr Smith provided sound reason for the difference in agreement content, and Alcoa may negotiate the terms of an enterprise agreement to suit the part of its business that is organisationally, operationally or geographically distinct.

3.4The changes sought by Alcoa

Alcoa submitted that the Agreement was outdated and imposed restrictions, inefficiencies, and unnecessary and unreasonable costs on Alcoa’s operations.[22] Accordingly, the terms of the Agreement did not afford Alcoa the flexibility to adjust its operations quickly and efficiently in order to maximise its ability to extract advantage from prevailing economic and operational requirements, or to respond to changes in market conditions as and when they arise.[23]

Alcoa identified that the following clauses of the Agreement were no longer acceptable to it (key issues / AWU provisions):

·     Minimum manning (cl 24);
·     Supplementary shift requirements (cl 11);
·     Rates for labour hire personnel (cl 23);
·     Early retirement and redundancy (cl 17);
·     Hours of work and rostering requirements (cl 10);
·     Dispute settlement procedures (cl 19);
·     Disciplinary action requirements (cl 18);
·     Extended paid sick leave (cl 13.4); and
·     Union structures and arrangements (cl 4.5).[24]

Over the course of the next several pages an abridged version of the evidence concerning the abovementioned clauses is provided. This background evidence may not appear abridged, but it was voluminous. Relevant headings are used to assist the reader.

3.4.1Minimum manning – clause 24

Clause 24 specifies the minimum manning number for each of Alcoa’s mines and refineries in WA (with the exception of the Pinjarra Refinery) for 2014, 2015, and 2016.[25] The manning provisions for the Pinjarra Refinery are set out at cl 6 of Appendix 11.[26]

The minimum manning clauses do not, according to Alcoa, set ‘a hard floor’. Alcoa is permitted to reduce manning numbers below the set minimum in circumstances of ‘major closures or shut downs and subject to no employees taking industrial action’.[27] However, according to Mr Gleeson, whether the minimum manning clauses apply beyond 2016 remains contentious.[28] Mr Gleeson stated the clauses had resulted in Alcoa holding more employees than required because the numbers within the Agreement were incorrectly predicted.[29]

For various reasons, Alcoa says that it is no longer prepared to retain minimum manning obligations. Those reasons are summarised below.[30]

·     Alcoa wants to determine the level of manning in accordance with the SELL principle (Safe, Efficient, Legal and Logical), because it is the most productive and efficient way of deploying its workforce and manning levels.
·     The minimum manning does not give Alcoa the flexibility it seeks in setting manning levels to suit particular operational requirements, or changed operational requirements, as and when they arise.
·     Maintaining minimum manning levels limits Alcoa’s ability to contract with third parties or labour hire providers to perform work when it is operationally efficient and cost effective to do so.
·     The minimum manning requirements require Alcoa to retain employees whose services are no longer required.
·     The minimum manning requirements directly impact Alcoa’s ability to take advantage of natural attrition in circumstances where Alcoa is able to operate safely and efficiently with fewer employees.
·     Alcoa wants to avoid disputation about the application of the minimum manning clauses post 2016.

Alcoa holds the view that its operational decision making has been challenged because of the minimum manning requirements.[31] During 2015 through 2017, Alcoa defended proceedings in the Federal Circuit Court regarding allegations it had breached its obligations under the minimum manning requirements at Pinjarra.[32] Mr Gleeson’s evidence was that Alcoa did not wish to be in a position whereby its managerial decisions concerning the overall, or specific manning levels for particular parts of its operations were constantly challenged.[33] Further, Alcoa had a disinclination to be in a position that it had to defend costly legal proceedings, on pain of penalty, if numbers dropped below a minimum, even by reason of matters outside of its control such as the resignation of employees.[34] It was Mr Gleeson’s opinion that the minimum manning clause had undoubtedly led to an increase in costs and unproductive outcomes.[35]

From an operational perspective, Mr Smith gave evidence that in relation to bauxite mining generally, manning levels fluctuated dependent on factors such as applicable haul distance, bauxite demand, the quality of the bauxite required at any given time, neighbour considerations, topography, and levels of productivity.[36]

According to Mr Smith, the minimum manning levels in cl 24 were interrelated with the redundancy provision in the Agreement with the result that any decision to increase workforce numbers must be made in the context of Alcoa’s inability to reduce numbers if required, through forced redundancies.[37]

During the course of the proceedings the AWU advanced a number of concessions concerning the key issues. Mr Smith was asked whether he saw any benefit to Alcoa to have a concession such as that outlined in the evidence of Mr Allen.[38] I traverse these concessions in a fulsome manner at paragraphs 215 to 220 of this decision. However, for present purposes it is sufficient to say that the concession offered was one where there would be an absence of the minimum manning numbers in a new agreement, subject to a decision to terminate the Agreement; if the Commission terminated the Agreement, the concession would fall away. Mr Smith’s evidence was that such concession would be of benefit:

[o]nly if it provided Alcoa with the ability to flex its numbers inside its workforce. Just simply saying “we're not going to put a manning number in place” but having things where it doesn't have the ability to increase or decrease its workforce in a timely manner doesn't particularly assist, no.[39]

Mr Smith’s view was that the manning provisions in the Agreement precluded Alcoa from:

(a) adjusting manning to meet changing operational circumstances and/or to meet production targets as dictated by the market;
(b) taking advantage of technological advancements including those justifying personnel reduction;
(c) obtaining benefits from outsourcing or insourcing specialist functions, which inevitably impact manning levels;
(d) reviewing the mix and balance of labour in operational departments, and acting on the same; and
(e) responding efficiently and in a timely manner to redesign a mine plan driven by market conditions, and respond to any other prevailing conditions which inevitably impact manning numbers.[40]

It was Alcoa’s view that the minimum manning requirements had been a constant source of disputation.[41] Examples where problems have arisen due to the particularisation of minimum manning numbers within the Agreement are set out below.

Huntly dispute

In 2016 the AWU initiated a formal dispute on the basis that Alcoa had not met its minimum manning number at Huntly (the Huntly dispute). Before the dispute was escalated, Alcoa had attempted to reach an agreement with the AWU on a reduced manning number.[42]

In late 2015, it was apparent that Alcoa remained under financial pressure partly because of an approximate 40% drop in the alumina price.[43] There was a requirement for Huntly to reduce operating costs; to achieve this, the mine plan was adjusted to reduce the haul distance.[44] The reduction in haul distance between the pit and crushers would result in more loads being hauled in the same amount of time, and it therefore followed that there would be an associated reduction in the labour requirements to 270 full time equivalent haul truck drivers.[45]

However, cl 24 of the Agreement specified that minimum manning numbers were to increase from 270 full time employees to 292 at the Huntly Mine in 2016.[46] Mr Smith understood that the minimum manning numbers in the Agreement were originally determined, in part, by reference to the then predicted mine plan. From an operational perspective, Alcoa did not require 292 haul truck drivers and was therefore obliged to employ 22 employees it did not require.[47] Under the Agreement, Alcoa was bound to implement this increase by 1 January 2016.[48]

Alcoa requested that the AWU defer the increase in minimum manning requirements. A meeting was held between Alcoa and representatives of the AWU on 23 October 2015, and Mr Smith informed them that the increased manning under the Agreement may not be required for 2016. The AWU rejected Alcoa’s request to defer the increase.[49]

While further discussions were held at a site level concerning manning, they did not result in an agreement or compromise, and in February 2016, the AWU notified Alcoa of a dispute about the minimum manning at Huntly.[50] Following these developments, Alcoa decided to employ casuals in order to satisfy the minimum manning requirements. However, the AWU did not accept Alcoa’s position that the additional employees could be employed on a casual basis.[51] Between early March 2016 and late August 2016, various proposals were exchanged in an attempt to reach an agreement, but no such agreement was reached.[52]

On 8 September 2016, a Form 10 was lodged with the Commission regarding Alcoa’s alleged non-compliance with cl 24.[53] Ultimately, the dispute settled in December 2016 by Deed.[54] Alcoa was, until the dispute settled, required to employ 292 employees, which resulted in the engagement of 22 casual employees in excess of operational requirements.[55] Mr Smith calculated that Alcoa incurred an additional spend of $2.61 million as a result.[56]

In cross examination, Mr Smith was asked whether the agreement to settle the dispute between Alcoa and the AWU regarding manning at Huntly (the settlement allowed Alcoa to employ only 270 employees) assisted Alcoa.[57] Mr Smith responded:

That assisted Alcoa, didn't it?‑‑‑I would disagree with that statement.
Why?‑‑‑I believe that at a time when we most needed flexibility, it wasn't provided. We spoke to the AWU starting in late 2015 to attempt to get relief from that manning clause. The deed wasn't signed until late 2016 and during that time we have been required to employ that whole suite of additional employees that Alcoa truly believed it didn't need to employ at the time.[58]

After the Deed had been signed, Mr Price said that 10 labour hire employees were engaged at Huntly which added to the 22 casuals that Alcoa had already argued they did not need.[59] Mr Price said that labour hire numbers had increased ever since, and at the time of writing there were over 60.[60] Mr Price’s view was that haul distances can vary, but not overnight, and ‘these changes are planned well in advance. A mine site such as Huntly must plan years and years ahead’.[61]

The AWU gave evidence through Mr King that Willowdale had not had its minimum manning level of 126 since 2016; and it was currently sitting at 120.[62] Mr King said that the AWU had not challenged the minimum manning numbers at the site and there were approximately 25 labour hire employees working on crews at Willowdale.[63]

Mr Price gave evidence that Alcoa management had repeatedly stated their opinion that there was no longer any manning agreement because of the wording in cl 24.[64] Since December 2016 the AWU had not disputed manning levels, even when numbers had fallen below minimum levels.[65]

According to Mr Smith, if Alcoa’s mining operations were not burdened with the minimum manning requirements contained in the Agreement, the mines would be in a better position to adjust manning levels to meet prevailing operational requirements and market conditions.[66] This statement was, according to Mr King, an exaggeration. He gave evidence that Alcoa were already getting flexibility in terms of the manning level and the use of labour hire at Willowdale.[67]

It was uncontroversial that external labour was used at Huntly.[68] Mr Price gave evidence that contractors were performing 20-25% of development, blast, production, and rehabilitation work.[69] In other departments, Alcoa was using labour hire and engaging casual employees, or alternatively, fitters or apprentices were performing work traditionally done by AWU members.[70] In Mr Price’s opinion there were options already in place that allowed Alcoa to increase and reduce numbers based on operational requirements.

Pinjarra refinery manning & Outsourcing of train-loading function

Manning levels for the Pinjarra Refinery are set out at cl 6 of Appendix 11 to the Agreement. That clause provides that the minimum manning number for Pinjarra Refinery is 495, and that during the term of the Agreement, the manning number may be reduced to 470. According to the evidence of Mr Fennessy, cl 6 sets a ‘soft floor’ at 495 and a ‘hard floor’ at 470.[71] Alcoa can only go to the soft floor if it consults with the AWU, and it is unable to go below the hard floor in any circumstances.[72]

In 2014, Pinjarra Refinery identified that the outsourcing of its train loading function to a specialised rail contractor would reduce costs, and save approximately $400,000 per year.[73] The proposed change would affect seven employees at the Pinjarra Refinery resulting in a reduction in manning numbers from 495 full time employees, to 488.[74] The affected employees would be retained and, in due course, would replace other employees exiting the business through natural attrition.[75]

The evidence of Mr Fennessy was that the matter became protracted when the AWU Convenor for Pinjarra Refinery introduced a demand concerning an employee who was unfit for work, was on a redeployment plan, and faced dismissal.[76] It was said that the Convenor informed Mr Fennessy that the AWU would not agree to the train-loading proposal (and the resultant reduction of manning numbers below the soft floor minimum manning number of 495), unless Alcoa agreed to the AWU demands concerning the unfit employee.[77] Alcoa maintained that the issue concerning the unfit employee was separate to the outsourcing matter; notwithstanding, it agreed to a 3 month extension of the redeployment period for the unfit employee.[78] Having granted an extension to the redeployment for the unfit employee, Alcoa was of the view that the matter regarding headcount was concluded.[79] That view was apparently not shared by the AWU.[80]

On 31 August 2015, the AWU Convenor raised a dispute in connection with the outsourcing proposal regarding an alleged lack of adherence to ‘the Consultation model’.[81] To the best of Mr Fennessy’s knowledge, an issue with consultation had not been escalated previously. Alcoa denied that it had not complied with its obligations to consult under the Agreement, and Mr Fennessy expressed that he was surprised by the dispute given ‘the Consultation model’ did not apply under the Agreement. Clause 6 of Appendix 11 of the Agreement only required Alcoa to ‘discuss the changes, and the reasons for them’.[82]

Alcoa embarked on further consultation with the AWU through the month of October 2015, and after a period of more than six months from when Alcoa had identified the proposed changes, those same changes were able to be implemented.[83] Mr Fennessy gave evidence that, had Alcoa not been obliged to consult about minimum manning numbers, and not been subject to the ‘status quo’ restriction associated with the notification of a dispute, these changes could have been introduced in a much more efficient and timely manner.[84] The status quo restriction is discussed further at paragraphs 121 to 160 of the decision. According to Mr Fennessy this would have resulted in a cost saving of $100,000, being approximately a quarter of the $396,000 per annum cost saving that the train-loading proposal actually achieved.

Mr Fennessy was asked in cross examination whether Alcoa had ended up outsourcing the train-loading function, he responded:

So the answer is yes, it did end up outsourcing that work?‑‑‑After a significant delay it did, yes.

Yes, and did that outsourcing deliver costs savings for Alcoa?‑‑‑Yes, it did.

And that all occurred under the 2014 AWU agreement, didn't it?‑‑‑Yes, it did.[85]

Pinjarra Refinery dispute

Mr Fennessy gave evidence that from October 2014, AWU representatives had agitated to ensure that at all times Alcoa employed a minimum of 495 permanent AWU employees at the Pinjarra Refinery.[86] According to the evidence of Mr Fennessy, the AWU’s position was that, notwithstanding discussions about a reduction of manning levels by seven employees from 495 to 488, Alcoa was obliged to increase its manning levels at the Pinjarra Refinery to 495.[87] Once that number was reached, the Agreement allowed (subject to discussion) a reduction to a minimum of 470.[88]

Mr Fennessy said that the AWU relied upon the ‘status quo’ provision in the Agreement in respect of the reduction of numbers by seven to, in effect, create a highly artificial process requiring an increase to 495 then a reduction to 488.[89]

The dispute between Alcoa and the AWU was unable to be resolved and on 16 December 2015, the AWU commenced proceedings against Alcoa in the Federal Circuit Court.[90] Shortly, before the AWU was due to file an outline of submissions, it withdrew the application and filed a notice of discontinuance.[91]

It was again said that Alcoa did not want to be exposed to proceedings arising from its operational decisions, or decisions by its employees to leave the business, both of which could affect manning numbers.[92]

Maintenance transformation exercise

In 2016 Alcoa assessed that it could meet its production targets by re-rostering employees, and reducing the number of hours that employees were required to be at work at the Pinjarra Refinery.[93] Several changes were required as part of the exercise including reduction of hours on shift, days at work, and reduction of full-time equivalent positions.[94] The exercise was said to give rise to two important changes;[95] a saving of $25,000 per annum, per employee (due to a reduction in shift allowances payable), and a reduction of employees required to perform planned work on weekends when such work could be performed more efficiently on weekdays when engineers and planners were available.[96]

On completion of the exercise, Pinjarra had 470 AWU employees, but required only 445. The excess employees became part of an operator pool, and maintenance improvement team. The employees had to be retained to ensure compliance with the hard floor minimum manning requirements.[97] When asked whether the changes to shift conditions were made under the Agreement, Mr Fennessy responded ‘[y]es, they were’.[98]

In April 2016, the Pinjarra Refinery was in the midst of implementing the maintenance transformation exercise.[99] Mr Fennessy was the Manager of OC3P-Precipation, an operating centre of the Refinery that receives green liquor from the Clarification operating centre. OC3P cools the liquor to promote the precipitation of alumina crystals, which is referred to as ‘hydrate’. The OCP3 had approximately 105 full time equivalent employees.

Mr Fennessy said that Alcoa consulted with the two affected crews in relation to the maintenance transformation exercise, including the proposed roster changes, for about six months.[100] He estimated that the ad-hoc meetings would have taken approximately 10-12 hours.[101]

The ‘go-live’ date for the transition was 11 April 2016, and Mr Fennessy’s evidence was that this information had been communicated to Group Leaders and Mr Allen on several occasions leading up to the date.[102] On the morning of 10 April 2016, 24 hours before the ‘go-live’ date, and after all allocations of employees and re-rostering arrangements had been made, Mr Allen raised a dispute regarding consultation.[103] Mr Fennessy rejected the contention that there had been a lack of consultation, but nevertheless met with the Mr Allen and a Mr Willie Hope (Mr Hope) to discuss the alleged dispute.[104] The concern raised was discussed and a resolution achieved.[105] However, before the go-live date, Mr Fennessy said that he had never been approached by Mr Allen or Mr Hope regarding their concerns which were the subject of dispute, nor about the alleged lack of consultation.[106]

3.4.2Supplementary shift requirements – clause 11

Under the Agreement, Alcoa is obliged to offer 5000 supplementary shifts (colloquially referred to as ‘supp-shifts’), per year, across its WA operations, for the life of the Agreement.[107] A supp-shift is a shift allocated to an employee for the purpose of filling gaps in labour requirements. The shift is additional to that which the employee is rostered. The number of supp-shifts that Alcoa is required to allocate is arbitrary, not based on the needs of the respective operations, and, according to Mr Gleeson, is not the most cost effective means of addressing additional work requirements.[108]

It was submitted that Alcoa was not prepared to have a minimum predetermined number of supp-shifts that have to be offered to its workforce regardless of the need, and cost of doing so.[109] The difficulty for Alcoa was that the supp-shift needs could not be predicted with any suitable degree of accuracy, and it was equally difficult to predict who would be best suited to perform that work in the future.[110]

Alcoa’s preference was to seek an approach where there was a more flexible and cost-effective supp-shift arrangement that gave it the ability to supplement ordinary hours on a strictly ‘as needed’ basis, including by making use of the contract labour, or labour hire sources where that was more cost-effective and/or efficient in the circumstances.[111]

It was said that the cost of the supp-shifts under the Agreement was an all-inclusive rate which proved to be significantly higher than the ordinary rate of pay.[112] That rate was currently 1.7 times the standard base hourly rate for a job grade 10.75.[113] Alcoa appreciated that a premium for supp-shift work would, in some circumstances, be warranted. However, it considered the payment of, on average, about 1.5 times the ordinary rate of pay would be in line with the rate in many awards, and in the view of Mr Gleeson, adequate to attract the calibre of labour required.[114]

Mr Gleeson added that because cl 23 prevented Alcoa sourcing labour hire employees to perform supp-shifts at market rates, Alcoa was in effect driven to offer supp-shifts to its employees at higher costs.[115] It was the case, said Mr Gleeson, that Alcoa wanted the freedom to be able to engage labour hire employees to provide additional labour at market rates as and when required, without having to satisfy the obligation to offer a prescribed minimum of the supp-shifts which required the payment of rates in excess of those of the market.[116]

Mr Smith acknowledged that some form of overtime was required to fill gaps in labour requirements, and meet peak demands. However, there were unsatisfactory issues with cl 11.[117] Mr Smith gave the example concerning the inability to select a particular operator for a supp-shift. This issue was especially relevant for excavator operators where their performance was said to vary significantly.[118] Technology known as ‘Argus’, maps and monitors the performance of the excavators at Huntly.[119] In 2017, the average dig rate (in tonnes per hour) of 1013 PC3000 excavator operators fell within a range of 1736 to 2664 per hour.[120] Mr Smith said that assuming the excavator operator operates equipment to full capacity for 10 hours on any given 12 hour shift, this essentially meant that productivity differences between the operators could result in production of anything between 17,360 to 26,640 tonnes per shift; a difference of up to 9,250 tonnes per operator, per shift.[121]

Dozer operators performing work in the rehabilitation function require specific skills and experience that differentiate them from dozer operators working within operations.[122] The rehabilitation function requires operators that can complete tasks such as rolling batters, creating smooth slope, covering rocks, and replacing topsoil.[123] I do not profess to know what ‘rolling batters’ is, but am confident that Mr Smith was adequately positioned to recount the work undertaken by these operators.

Mr Smith’s evidence was that when requesting an employee to fill a supp-shift for dozer landscaping, the supp-shift roster only allowed Alcoa to specify the role, in this case, ‘dozer operator’, and not identify the operator by reference to the work performed.[124]

Because of the issues concerning supp-shifts, Mr Smith said that he had cause to have a number of discussions with Mr Price about the better allocation of supp-shifts and the designation of particular employees for tasks.[125] According to Mr Smith, Mr Price refused to concede any change to the existing system.[126]

Alcoa is required to give supp-shifts to all employees, including those who, due to physical restrictions, cannot perform work as effectively as others.[127] Mr Smith’s evidence was that a circumstance had arisen where an employee with physical restrictions was rostered on for a supp-shift on trucks because he was next in line on the roster system.[128] However, he could only work half a shift on trucks, and for the latter part of the shift, was moved to operate the crushers; notwithstanding the work demand was on trucks.[129] Mr Smith observed that the employee’s work restrictions had the effect of reducing the flexibility of the team working that shift, increased the complexity in managing the shift, and impacted on Alcoa’s ability to meet production targets.[130] The situation regarding this particular employee was not contested.

In contrast to Mr Smith’s evidence, Mr Price said the roster system for supp-shifts was based on an offering process; where a specific skill was required, the roster was adjusted.[131] The crews ensured that they had people with the licences and skills required by adjusting the roster rotation, and this in turn ensured everyone was offered supp-shifts fairly and equitably.[132] Mr Price said that the AWU employees at Huntly manage the supplementary shift rosters.[133] At Huntly, according to Mr Price, on any one shift there would be approximately 35-40 production/rehabilitation employees rostered on with a complete range of skills required to perform all tasks.[134] Further, Mr Price disagreed with Mr Smith’s evidence that Alcoa was obliged to provide such shifts to employees with physical restrictions because Alcoa had placed a ban on employees performing supp-shifts if there were medical restrictions.[135]

Disputes over supp-shifts only arose, said Mr Price, when Alcoa attempted to bypass the roster system.[136] In response to Mr Smith’s observation that whilst at Huntly, employees had approached him from different work groups in the same department to complain about another work group being allocated more supp-shifts, Mr Price said that there was a system of prioritising crews. Mr Price gave the example whereby the system was being bypassed by giving trainers the supp-shifts (on different job grades and job descriptions) in front of operators who were missing out.[137]

Mr Allen said that the AWU had agreed, subject to a decision to terminate the Agreement, that under the new agreement, Alcoa could offer supp-shifts at its discretion subject to operational needs.[138]

3.4.3Rates for labour hire personnel – clause 23

Mr Gleeson gave evidence that from time to time Alcoa made use of labour hire employees to cover absentees, and for addressing particular operational needs.[139]

Broadly stated, Mr Smith’s evidence was that cl 23.1 required Alcoa, in respect of labour sourced through a labour hire company, to pay 78% to 100% of the hourly base rate of pay for the relevant job grade of an Alcoa employee.[140] Plus there was an additional loading of 25% on those rates of pay regardless of the employee’s employment status with their employer.[141]

Mr Fennessy’s evidence, similar to Mr Smith’s was that the specified hourly rate for labour hire was between 78% and 100% of the hourly base rate for the applicable job grade, depending on the length of the labour hire employee’s continuous service with Alcoa.[142] In addition to this hourly base rate, the labour hire employee was paid the equivalent of the applicable annual shift premium payment for an Alcoa employee performing work in the same job grade, and working the same shift arrangements.[143] Additionally, a loading of 25% on the rates of pay applicable under clause 23.1(a) was payable, irrespective of whether the labour hire employee was a casual employee or not.[144]

Mr Gleeson’s view was that the obligation in cl 23 made the utilisation of labour hire more expensive than would otherwise be the case because clause 23.1 imposed a cost that was greater than market rates.[145] According to Mr Gleeson this was no longer acceptable to Alcoa, which wanted the ability to make use of labour hire employees at competitive rates.

Mr Smith gave evidence that at Huntly, labour hire was a tool used to balance the peaks and troughs of Huntly’s labour requirements.[146] Labour hire requirements at Huntly differed from month to month across the year, depending on the mine’s operational requirements.[147] Alcoa’s export contracts were said to be of limited duration which in turn meant that Alcoa required the ability to ‘flex up’ and ‘flex down’ its workforce to meet export demands.[148] Mr Smith expressed that given the restrictions on forced redundancies, if Alcoa was to supplement its workforce with additional permanent employees, and export demand decreased or Alcoa lost an export contract, it would not be positioned to decrease employee numbers.[149]

With regard to the Pinjarra Refinery, Mr Fennessy said that for the most part, for service persons, replacement labour hire employees were engaged for the purpose of filling short-term absences.[150] While two types of a AWU employees worked within the Pinjarra Refinery – Bayer process operators, and service persons – the use of labour hire was limited to service person replacement because the Bayer process operators were experienced and knowledgeable, which therefore required any labour hire employee to have had substantial training to replace them.[151]

However, according to Mr Fennessy, Alcoa generally used Alcoa employees on a supp-shift basis to replace absent employees because of cl 23.[152] It was Mr Fennessy’s view that if labour hire employees could be sourced at market rates, they would become a more cost-effective option, and could perform works currently being performed by Alcoa’s employees through supp-shifts.[153]

With regard to the use of labour hire at the Kwinana Refinery, Mr Fennessy gave evidence that the Kwinana Refinery did, and could, make reasonably extensive use of labour hire to cover long-term absences such as long service, or extended sick leave of both Bayer process operators, and service persons.[154]

Mr Fennessy considered that there was a benefit to Alcoa, and also its workforce, in engaging labour hire to perform subsets of the Bayer process operator’s role at the Kwinana Refinery.[155] For example, cleaning up underneath Precipitation, and launder descaling, which is generally considered basic, unskilled, and undesirable work.[156]

By way of illustration, Mr Fennessy gave evidence of a quotation he had obtained for a bobcat operator on market rates, compared to the labour hire rates that Alcoa was obliged to pay under the Agreement.[157] The quote that had been received in October 2017 was for a bob cat operator on an hourly rate of $28-$35 compared to an Alcoa job grade 10 operator, which attracted an hourly rate of $73.21.[158]

The view of Mr Fennessy was that Alcoa’s ability to obtain the benefits of sourcing labour from labour hire providers was further indirectly affected by the provisions concerning minimum manning, and restrictions on terminating employment of those employee’s whose positions had become redundant.[159]

It was the evidence of Mr Allen that the AWU had agreed, subject to a decision to terminate the current agreement, to changes in the current labour hire provisions.[160] Those changes were that:

Alcoa would not have a mandatory obligation to advise the AWU about the use of labour hire, but must provide details to the AWU upon request;
there would be a reduction in starting rates for labour hire to market rates for the first six months;
Alcoa would be able to arrange competitive tenders for work to be outsourced subject to providing certain information to the AWU; and
the status quo provisions in the disputes procedure would not apply to disputes about Alcoa’s use of labour hire.[161]

3.4.4Early retirement and redundancy – clause 17

Mr Gleeson said that Alcoa was restricted in the manner in which it was able to deal with situations where a position had become redundant and it sought to reduce the size of its workforce as a result.[162]

Clause 17 prohibited compulsory redundancies and imposed an obligation for the ‘parties’, which relevantly included the AWU, to agree the terms upon which voluntary redundancies may be offered at any point in time.[163] Mr Gleeson said that Alcoa accepted it was reasonable for there to be a mechanism whereby employee numbers could be reduced on a voluntary basis.[164] However, Alcoa wanted the ability to determine the correct employees and to make offers of voluntary retirement to specific categories of employees.[165] Alcoa acknowledged that compulsory redundancies would be a last resort, but Alcoa must have the ability to do so.[166]

The changes to cl 17 also included the provision of flexibility to reduce numbers in particular areas, or work groups, without having to manage the entire employee population by redistributing labour into other parts of the organisation.[167] That redistribution was said to involve retraining even when not necessary.[168] Clause 17 gave rise to negative productivity consequences and cost implications.[169]

The voluntary early retirement arrangement (VERA), which Alcoa characterised as a ‘retirement package’, was an arrangement that Alcoa was not prepared to continue with.[170] It was said that the agreement of the ‘parties’ was required, and could be linked to other demands including an ability for the AWU to nominate persons eligible for VERA packages on the basis that the longest serving employees are afforded preference in relation to the offers made.[171]

In response to Alcoa’s concerns, Mr Allen stated that the AWU had, subject to the decision to terminate the Agreement, agreed to various changes to the current redundancy provisions to appease Alcoa. Those changes were:

voluntary redundancies at Alcoa’s discretion subject to consultation;
cap on redundancy pay of 80 weeks applicable to voluntary redundancy payments if the employee who volunteered was not directly affect by the relevant organisational change; and
forced redundancies permissible subject to first seeking volunteers and not utilising contractors to perform the work of the forcibly redundant employees.[172]

3.4.5Hours of work and rostering requirements – clause 10

It was Alcoa’s position that cl 10 of the Agreement was too prescriptive and did not give Alcoa the flexibility to utilise its workforce for the efficient and productive performance of work.[173] Clause 10.1 included constraints around start and finish times between which the average of 36 hours could be worked.[174]

According to Mr Fennessy’s evidence cl 10 provided, in short:

(cl 10.1) except for employees working a 10.3 hour shift roster, ordinary hours of work will be an average of 36 per week to be worked on not more than five days in periods of eight continuous hours (except for a meal break) between 7:00am to 8:00am on Monday to Friday;
(cl 10.2(a)(i)) the spread of hours and the start and finish time of such shifts may be temporarily altered to meet the planned operational needs of the business, on the giving of 96 hours’ notice, and with the agreement of the affected employees; and
(cl 10.2(a)(ii)) in the event that such agreement is not reached, the matter may be referred to the Fair Work Commission for determination.[175]

Alcoa cited that the restrictions were mainly those set out in subclauses 10.2 (a) and (b), which provided that in the event that the employees and/or the AWU are not prepared to agree to any temporary or permanent change, the matter was to be determined by the Commission having regard to a range of circumstances and prescribed considerations, including direct financial impact, lifestyle impacts, and so on.[176] This, according to Alcoa restricted management’s discretion to give primacy to operational issues and the overall needs of the business.[177] By virtue of subclause 10.3(b), the same restrictions applied in relation to shift workers.[178]

3.4.5.1Hours of work – clause 10

Temporary changes

Mr Smith gave an example of how the restriction concerning temporary changes limited Alcoa’s ability to make beneficial temporary adjustments to start times. With regard to the Blast crew, Alcoa required, from time to time, one crew member to start an hour earlier when the Blast crew was scheduled to start loading blasting holes first thing in the morning.[179] This member of the team picks up the blast accessories that are housed some distance from the Blast crew’s actual work location.[180] If an employee is not willing to start earlier, there is time wastage associated with between six or eight members of the Blast crew having to wait while the blast accessories are retrieved at the start of shift.[181]

Dust suppression is often required on haul roads given that unsprayed haul roads can result in a reduction of speed to as low as 20km an hour (normal haul road speeds are 50km per hour).[182] When dust is an issue, the roads are sprayed before production operators commence shift at 7:00am.[183] Alcoa requires a water cart operator to commence shift approximately one hour before 7:00am. If an employee is not willing to start early when requested, and as a consequence, the water cart operator starts work with the remainder of the Production crew, it can impact on productivity and the safety of operations.[184] Mr Price observed with regard to the dust suppression issue that Production and Development crews worked 24/7 rosters.[185]

Mr Smith’s evidence was that to achieve earlier start times, Alcoa needed the agreement of employees in respective crews.[186] If there were no volunteers then labour would be taken from other tasks, additional labour would be sourced through supp-shifts or labour hire, or a slower start to the shift would occur.[187]

Mr King gave evidence that the shift time for Willowdale Blast was 5:45am and not 6:00am. The reason for this was to enable production to start up before the Production crew commenced.[188] The float operator was said to come in at 5:00am to move equipment and set up ready to go. Mr King said ‘our site is totally flexible in all departments including splitting crib times to improve efficiency’.[189]

Mr Price’s evidence was that employees had already voluntarily agreed to change start times, for example 5:30am and 6:00am starts of Production and Blast crews.[190]

Permanent changes

Permanent changes to hours of work are governed by cl 10.2(b), which restricts Alcoa from implementing change unless it obtains agreement of the affected employees.[191] Mr Smith’s evidence was that he would consider aligning start times of crews working in the same areas to eliminate the necessity for a Group Leader to hold two pre-starts within 20 minutes of each other.[192]
By way of example, the Light Vehicle Workshop employees commenced work at 7:00am whereas the Auxiliary Workshop employees commenced at 6:40am.[193] Mr Smith’s view was that it would be more effective and efficient to have a single start time for the two crews particularly with regard to safety as the crews work in the same area and interact on a regular basis.[194] Mr Smith said that he had raised the issue with the two groups on various occasions, and more formally had requested the issue be raised again in February 2017 by the Group Leaders of the respective crews. The feedback reported to Mr Smith was that the respective employees did not want to commence work 20 minutes later or earlier.[195] Mr Price gave evidence that the AWU had proposed a 10.3 hour day shift to eliminate supervision issues, and improve productivity.[196] There was no evidence regarding when the proposal was made, or who proffered it on behalf of the AWU.

It was said that associated with these above-mentioned operational restrictions in connection with hours of work, was the restriction in subclause 6.8. This subclause required an employee to work any additional time that was necessary to efficiently and fully undertake her or his job. However, the AWU or the employee could dispute any request with the result that the status quo must be maintained.[197]

Mr Gleeson said that Alcoa wanted the ability and discretion to change the spread of hours of employees, on notice, without the need for agreement of each of the employees affected.[198] The flexibility sought included directing employees to start early, work back or to stagger shifts for particular maintenance events;[199] and extended to not having to secure the agreement of the affected employees, or the AWU where the change was permanent. Further, the ability for ‘change of hour’ issues to be put into dispute with the associated status quo consequence was something Alcoa wanted removed.[200]

3.4.5.2Shift rosters and patterns – clause 10

Alcoa sought the ability to move employees across shifts to ensure that resources were balanced, or to provide a better performance outcome, without needing to obtain the employees agreement to such a course.[201] Further, Alcoa sought the ability and flexibility to introduce new rosters following appropriate consultation, but without the need to obtain the consent of the employees or the AWU.[202]

Mr Smith gave evidence that there were two primary issues in relation to the clauses in the Agreement governing changes to shift rosters and patterns as they affect mining.[203]

The first issue, according to Mr Smith, was that Alcoa and the AWU were not in agreement as to how the clause operated, and what it implied.[204] Alcoa held the view that it could set shift patterns in line with cl 10.3(g), and that a change to a rostered shift required only 48 hours’ notice in line with cl 10.3(a)(iv).[205] The AWU had taken the view that any changes to shift patterns or rosters must be by agreement pursuant to cl 10.3(a)(iii).[206] The differences in view had given rise to disputes, including a dispute referred to as the D-crew re-roster dispute, and the roster change disputes at Huntly, and Willowdale.[207]

Mr Price’s evidence was that he was unaware of any disputation about cl 10.3(a)(iv) and 10.3(g).[208] Mr Price said that cl 10.3(a)(iv) defined what a rostered shift meant, and referred to established rosters. The clause operated, such that Alcoa could give 48 hours’ notice to temporarily change employees between established rosters or, as they were often referred to, shifts or panels.[209]

Mr Smith said that the second issue was that the Agreement was more restrictive than the 2017 AMWU Agreement.[210] It followed that where AWU and AMWU employees were required to work in tandem to perform essential work, outside of their ordinary hours, efficiency was impacted where AWU employees did not agree to align their hours with AMWU employees.[211]

Disputes about changes to roster or shift patterns – Willowdale and Huntly

In early 2016, following a period of consultation, Alcoa sought to implement changes to shift patterns and rosters at both Willowdale and Huntly Mines.[212] The changes arose from Alcoa seeking to improve efficiencies and reduce costs in response to the change in the state of the market.[213]

At the Huntly Mine, Alcoa decided to change the shift pattern and rosters of fixed plant employees from 10.3 hour day shifts (including weekends) to three 12 hour days (week days only).[214] At Willowdale, the changes to shift patterns and rosters were for a broader group of employees and involved various changes.[215]

The changes at Huntly were considered beneficial to Alcoa because it allowed for the maximisation of labour during fixed plant maintenance shifts.[216] On the new shift pattern, both crews in Fixed Plant Maintenance would work on the production down days, which meant there was double the labour to perform fixed plant maintenance on days when the system was down for maintenance.[217] Before the change there had been two crews working on only one of the non-production down days. The changes increased the effective tool time per employee on maintenance shifts.[218]

The new shift pattern at Huntly meant the employees transitioned from working shift work, as they worked some weekend shifts, to a roster involving three days of 7.00am to 7.00pm in the period from Monday to Friday.[219] This meant that fixed plant maintenance employees did not attract as much shift allowance resulting in savings for Alcoa of approximately $20,000 per employee, per year, and that the employees did not accrue an additional week of annual leave.[220]

At Willowdale, efficiencies were achieved by ensuring that hauling no longer occurred on production down days, employees worked less on the weekend, and had fewer night shifts, thereby reducing shift allowances.[221] A move from five panels on the roster to four panels in Production involved a reduction of the equivalent of eight full time employees with estimated savings of $1.8 million.[222]

Alcoa took the position that after appropriate consultation, it was entitled to make the change to the shift patterns under cl 10.3(g) and that the changes did not fall under those contemplated by the second part of cl 10.3(g).[223] According to Alcoa, the process set out in cl 10.3 for transitioning employees to the new shift did not need to be followed.[224] Further, Alcoa held the view that the changes could be made without the consent of the AWU.[225]

On 12 July 2016, some six days before the new rosters would take effect, the AWU disputed the proposed new roster.[226] The disputes were unable to be resolved in the first three stages of the dispute resolution procedure, and the AWU escalated the disputes to the Commission.[227] Conciliation conferences followed and a resolution was reached without recourse to arbitration.[228]

However, Alcoa’s view was that the concessions made to resolve the dispute were made only in order to try and expedite the implementation of the roster changes on business grounds. Alcoa expressed that but for the fact that there was the status quo, and the delays associated with it, Alcoa would not have made the concessions.[229] Those concessions included the provision of shift protection payments for affected employees until the nominal expiry of the Agreement.[230]

In addition to the shift protection payments, Alcoa agreed that the AWU could raise a new dispute in relation to the amount of annual leave the transferring employees would be entitled to. Alcoa considered that the annual leave entitlement of the transferring employees would be four weeks, in contrast to the AWU’s position of five weeks.[231] Again, no resolution was reached through the dispute resolution procedure, and the matter was escalated to the Commission. Conciliation resulted in the dispute application being discontinued.

While the aforementioned disputes were resolved, Mr Smith’s evidence was that the disputes consumed a large amount of employee and management time.[232] They required attendances before the Commission, and the disputation impacted Alcoa’s ability to implement changes, which it regarded as necessary, including for work groups impacted by the changes, but not covered by the Agreement, such as the employees covered by the 2017 AMWU Agreement.[233]

Mr King’s evidence was that there had been no dispute on start and finish times. He gave evidence that the AWU members normally changed very quickly when asked by management, and members had a range of different start and finish times across the site. Further, Mr King questioned how Mr Smith could give evidence about the Willowdale site and changes to start and finish times when he was not there during the relevant periods.[234]

With regard to disputation over the roster change, Mr King refuted what was said by Mr Smith stating that ‘we totally restructured the site in three months total and was thanked by management for being so supportive’.[235] Although, it is apparent from Mr King’s evidence that disputation did occur regarding the five weeks of annual leave taken off by certain crews,[236] according to Mr King there were grey areas in the Agreement in this respect. Mr King gave evidence that the shift protection payments were an idea conceived by the Alcoa Operations Manager, Mr Ben Robinson, as about 15 employees were to lose around $12,000.[237] According to Mr King there was a shift protection provision that was funded by the AWU, and it was therefore jointly agreed to ‘look after’ the 15 employees.[238]

The status quo provisions of the Agreement were not utilised, according to Mr King, and the five weeks of annual leave did not hold up any 4-panel restructure.[239]

As far as Mr Price was concerned the issue in dispute was not the changing of the shift, per se, but how night shift would be covered, and the leave entitlement of 4 or 5 weeks.[240] Mr Price said that the new roster was not the issue, but the conditions surrounding it were.[241]

Inflexibility of the Agreement in comparison with the 2017 AMWU Agreement

To meet its operational requirements, Alcoa wants to be able to adjust rosters upon notice and following consultation, as is presently the case in respect of employees covered by the 2017 AWMU Agreement.[242] However, Alcoa held the view that cl 10.3(a)(iii) resulted in it not having the flexibility, without agreement between the ‘parties’, to move shift workers from one rostered shift to another in order to address operational requirements.

In ordinary maintenance operations, employees covered by the 2017 AWMU Agreement and the Agreement are required to work in tandem.[243] It follows that not having flexibility in relation to a temporary roster change for both groups of employees can lead to inefficiencies.[244] Mr Smith gave the example where employees covered by the 2017 AMWU Agreement were directed to work night duty instead of day duty in circumstances of a shut down for maintenance work.[245] The direction to work night duty ensured that the stoppage was minimised as the maintenance work could occur around the clock.[246]

Mr Smith stated that the AWU’s interpretation of cl 10.3 of the Agreement was such that a similar direction could not be given or implemented without the agreement of employees covered by the Agreement.[247] Absent agreement of the AWU employees, the likely result would be insufficient trade assistants working night shifts during the shutdown. It was said that this would impact negatively on performance of certain critical steps routinely scheduled to occur during the night, with a resultant increase in the risk of production being stopped for a longer period.[248]

3.4.6Dispute settlement procedures – clause 19

Clause 19 of the Agreement sets out a sequence of five steps that the parties must follow if a grievance or dispute arises.[249] Clause 19(b) requires that while a grievance or dispute progresses through the sequence of steps, the ‘normal conditions/arrangements in existence immediately prior to the cause of the dispute arising’ (status quo) must be maintained.[250]

Mr Gleeson’s evidence was that the dispute settlement procedure at cl 19 was significantly broader and more restrictive than the model dispute resolution procedure in the Act.[251] It covered ‘all disputes’, which necessarily extended to disputes about the application and interpretation of the Agreement, the National Employment Standards (NES) and any other dispute.[252]

Mr Gleeson stated that part of his role was the overview of disputes. As such, he was aware of major disputes that impacted all locations, disputes with significant disciplinary ramifications for the employee, and disputes relating to the interpretation of the Agreement.[253] Mr Gleeson expressed that the procedure was cumbersome, time consuming, and restricted Alcoa’s ability to implement change; particularly because of the status quo provision. The clause, in Mr Gleeson’s view, contributed directly to the number of disputes that Alcoa was required to deal with.[254]

The breadth of the clause was illustrated by Mr Gleeson’s example where Mr Price, raised a dispute concerning the size of his office at the Huntly mine. Given the content of cl 19, the Commission had jurisdiction to determine the issue.[255]

The status quo provisions have a significant impact on the manner in which Alcoa is able to deal with day to day matters, or any proposed change. The provisions were said to apply automatically if any matter was put in dispute, irrespective of its importance or consequences.[256]

Mr Gleeson’s evidence was that in practice, the clause prevented, or more generally delayed, reasonable actions required in the business.[257] At the instance of an employee, delegate, or convenor, a grievance or dispute being raised, even at the lowest level of the process, required matter to be placed on hold.[258]

Mr Gleeson gave two examples in which there was a significant and unwarranted delay. He pointed to a dispute at Pinjarra in relation to the application of a Commission decision about completing Daily Visual Management boards in the residue area.[259] According to Mr Gleeson, two Commission conferences were required in addition to the three months spent attempting to resolve the matter.[260] A further example was where members refused to train staff for business continuity purposes.[261] The dispute was escalated to the Commission for conciliation, and was then discontinued some five months after first being initiated.[262]

Production D-crew re-roster dispute

Mr Smith’s evidence included an example of the operation of the status quo delaying a short term operational change.[263] In 2016, Mr Smith sought to re-roster employees in advance of a fixed plant shutdown at Huntly.[264] This shutdown was scheduled over eight shifts from 15 February 2016 to 19 February 2016 to allow the replacement of a conveyor belt.[265] Shutdowns are critical to allow preventative maintenance and ensure ongoing stable operations.[266] They are planned months in advance, and must be completed within designated time frames to minimise interruption to both mine and refinery production.[267]

According to Mr Smith, it was customary when a shutdown was planned, to re-roster some of the production crew who were rostered to work during the shutdown, to shifts prior to the shutdown.[268] This step allowed the re-rostered employees to assist in making up for the production shortfalls which would occur during the shutdown.[269] The increased volume of employees in advance of the shutdown would maximise the movement of ore from the mine to the refineries, thereby increasing bauxite inventory at the Pinjarra and Kwinana Refineries in advance of the shutdown.[270]

A review of the production inventory was conducted in preparation for the February 2016 shutdown. This review identified that additional shifts were required to meet inventory targets.[271] Mr Smith proposed that production D-crew would work day shift on 25 January 2016, instead of their rostered night shift on 17 February 2016 when the shutdown would be in effect.[272] Mr Smith said that he took the position that the proposed re-roster was permitted within the terms of the Agreement, because he was giving more than 48 hours’ notice as required by cl 10.3(a)(iv).[273]

On 18 January 2016, Mr Smith was advised that an AWU Delegate for D-crew had placed the D-crew re-roster in dispute.[274] It was the case that a number of members in D-crew were not prepared to accept the re-roster as they had made other plans for 25 January 2016.[275] However, they were able to come in on 25 January 2016 if the re-rostered shifts could be worked as supp-shifts.[276] The working of supp-shifts would mean a higher rate of pay would be incurred.[277]

On 20 January 2016, in response to Mr Smith’s email confirming that D-crew would be required to work on 25 January 2016 as instructed, Mr Price communicated that the D-crew re-roster was disputed on the basis that it was not a proposed change covered by cl 10.3(a)(iv) and that, as such, there was no capacity for Alcoa to re-roster the D-crew to 25 January 2016.[278]

A discussion was held between Mr Smith and Mr Price on 20 January 2016 to clarify the basis for the dispute. Mr Smith told Mr Price that Alcoa had an established practice of using cl 10.3(a)(iv) as a basis for implementing temporary re-rosters, and the work should be performed as requested.[279] Mr Price’s view, however, was that the agreement of AWU employees was required.[280] The status quo had to be preserved pending the resolution of the dispute.[281] Mr Smith formed the view that it was unlikely there would be a resolution of the dispute before 25 January 2016. Given several employees indicated that they were unavailable to work, and acceptance of supp-shifts was voluntary, Mr Smith’s evidence was that he had to find an alternative solution.[282] Alcoa engaged a contractor to cover the shift and carry out the necessary work at a cost of $61,378.80.[283]

Concerning the D-crew dispute, Mr Price said that Alcoa had wanted the crew to drop off a night shift and work a day shift.[284] Mr Price said the crew thought that insufficient notice had been given, and that the change meant that the employees’ rostered days off break would be interrupted and shortened.[285] The problem appeared to be, that a number of employees had booked trips to Bali during their break and had already paid for their flights so they could not do the shift swap.[286]

Mr Price said that D-crew was provided with about 5 days’ notice and they were informed it was a direction, not a request.[287] Mr Price held a view that reference was made to the working of supp-shifts because only some of the crew could physically do the shift, and they would require supplementary employees to get a full crew.[288]

Proposal to temporarily transfer cadet

A cadet program was introduced at Willowdale and Huntly in around 2010 to provide non-staff employees with the opportunity to work in a ‘staff’ role, such as supervisor position, for a period of six months. Employees selected were considered by Alcoa to have potential and good prospects of progressing to more senior roles within the business.[289] The program ran at Alcoa’s discretion and, come 2016 was suspended because of an oversubscription of employees to the program.[290] This meant that a sufficient number of employees had completed the program, and could therefore fill a supervisory position if a vacancy arose.[291]

In February 2017, Alcoa wanted to move a cadet who was acting as a Supervisor at Huntly at that time, to Willowdale, to fill in for the unplanned, short term absence of a Supervisor who had unexpectedly had to undergo emergency surgery.[292] Mr Smith was informed by the Operations Manager at Huntly that a cadet who had previously worked at Willowdale had volunteered for the transfer.[293]

The AWU took the position that because Alcoa discontinued the cadet program at Willowdale in 2016, Alcoa could not make use of Huntly’s cadet regardless of the circumstances.[294] Therefore, the transfer of the cadet was placed into dispute and the status quo was required to be maintained. This necessitated the cadet remaining at Huntly and alternative arrangements being made for Willowdale.[295]

The dispute progressed to stage three of the dispute resolution procedure, although, the transfer of the cadet was no longer in issue;[296] the focus of the dispute was the suspension of Alcoa’s discretionary cadet program at Willowdale.[297] The matter was resolved on the basis that Alcoa would cover any future staff absence by seconding an employee who had previously completed the cadet program at Willowdale into the role. In effect, Alcoa would not place on secondment a current Huntly cadet or employee who had completed the cadet program at Huntly, to a Willowdale position to cover a staff absence.[298]

In Mr King’s view, the cadet dispute arose because Alcoa suspended the cadet program without any consultation as required by the signed agreement, which, according to Mr King, said that either party must give two weeks’ notice if the program was to be stopped.[299] This did not occur, and Mr King said Alcoa just ‘canned it’.[300]

It was the case, said Mr King, that when Alcoa wanted to bring a cadet from Huntly to fill the Willowdale role some months later, Mr King argued that it should be a Willowdale cadet.[301] Alcoa’s response was that Willowdale no longer had cadets, and Mr King said that he suggested that if anyone should be seconded to staff, it should be a previous Willowdale cadet, but Alcoa rejected the idea. Mr King said that Alcoa was being difficult and he was trying to help.[302] He had no option but to dispute it, but it was Alcoa that dragged the issue out.[303]

Uniform policy dispute (C2015/5714 and C2015/7869)

In April 2015, Alcoa sought to introduce a uniform policy. Mr Smith, as the Superintendent at Huntly, assisted with its introduction at the mining locations.[304] Prior to the introduction of the Uniform Policy, employees could wear anything they wished as long as certain safety requirements were met.[305]

The Uniform Policy set out the minimum clothing standard at the mining operations both generally, and for each work area.[306] Alcoa’s initial intention had been to introduce a requirement for all mining employees to wear high visibility long sleeved shirts, and trousers. During consultation Alcoa agreed to amend the Uniform Policy to allow employees to wear shorts (if not contrary to safety requirements for the particular position), and jeans.[307] A Memorandum of Understanding was signed to this effect, and would operate for the life of the Agreement.[308]

The implementation and roll out of the Uniform Policy occurred during the period January 2015 through August 2016.[309] In early 2015, Alcoa notified employees that compliance with the Uniform Policy would be mandatory from 31 March 2015.[310] The AWU Convenors at Willowdale and Huntly, Mr Price and Mr King, took the position that they would not conform to the Uniform Policy, and would continue to wear their shirt branded with the AWU logo.[311] The clothing worn by the AWU Convenors generally consisted of short sleeved polo shirts branded with union logo and pants.[312]

The AWU Convenors asserted, in essence, that the ‘2005 Arrangements’ – referred to in cl 4 of the Agreement – entitled them to a continuation of the ‘existing arrangements’. Alcoa repeatedly directed the AWU Convenors to comply with the Uniform Policy, but they did not. Alcoa disputed their refusal (the Policy Dispute).[313] The ‘2005 Arrangements’ are traversed further at paragraph 175 of this decision. However, in short, and without attempting to minimise the significance of these ‘arrangements’, they have been in place for some time and are favourable to the AWU’s presence and involvement on Alcoa sites.

Resolution of the Policy Dispute was not achieved at the initial stages of the dispute resolution procedure. It was escalated to the Commission, whereby conciliation conferences were conducted.[314] Following the conciliation conference, Alcoa believed it had a right to implement the Uniform Policy, and on 27 October 2015, Mr Smith emailed Mr Price and Mr King stating, amongst other things, that Alcoa expected all of its employees covered by the Uniform Policy, including them, to comply with it by 2 November 2015.[315] Mr Smith’s email indicated that a failure to comply with the direction could result in disciplinary action.[316]

The matter did not resolve, and on 30 October 2015, Alcoa sought to have the matter arbitrated by the Commission.[317] On 2 November 2015, Mr Price and Mr King were again non-compliant with the Uniform Policy and, as a consequence, Alcoa issued written warnings to both.[318] The AWU responded that the issuing of warnings had contravened the status quo provision of the Agreement.[319]

The Policy Dispute was heard on 23 February 2016 and a decision was handed down on 2 June 2016.[320] Mr Smith’s evidence was that the net effect of the declaration of the dispute was that Alcoa did not get a decision in relation to the Policy Dispute until about 10 months after the dispute was initiated, and some 14 months after the Uniform Policy was implemented.[321]

In addition to the Policy Dispute, come 25 November 2015, Messrs Price and King lodged a dispute regarding their written warnings (the Status Quo Dispute). A conciliation conference was held in late January 2016 and in early February 2016, Alcoa, to no avail, sought to settle the dispute absent admission of liability.[322] The matter was arbitrated with the result that the warnings issued to Messrs Price and King amounted to Alcoa failing to observe the status quo, and was in breach of cl 19(b).[323]

Mr Gleeson’s view was that considerable management and human resource time was taken up dealing with disputes, and in some circumstances the disputes were frivolous and ought not to be subject to the status quo.[324]

In summary, the Policy Dispute and Status Quo Dispute involved the following:

Two stage 1 dispute meetings: a commitment of several hours from each of the relevant Superintendent and Convenor;
Two stage 2 dispute meetings: a commitment of several hours from the Production Superintendent and Convenor;
Two stage 3 dispute meetings: a commitment of several hours from each of the Mine Manager, Human Resources Manager, and the Convenor;
Many more meetings and conversation including the Mine Manager, Production Superintendent, the Human Resources Manager, and the Convenor to seek to resolve the dispute (including a significant time commitment for those involved);
Conciliation conferences: a commitment of approximately a day from the Mine Manger, Human Resources Manager, the Production Superintendent, and the Convenor for each conference; and
Two arbitrations conducted by the Fair Work Commission, both requiring extensive time from the individuals involved, and considerable cost in defending Alcoa’s position.[325]

Mr King’s evidence was that Alcoa had tried to ban the AWU logo on his and other convenors’ shirts.[326] He said that he had no problem wearing the Alcoa hi-vis shirts, but he wanted the AWU logo on the opposite side.[327] Mr King said that he was told to dispute the uniform issue by the Alcoa Manager at the time, Mr Brett Hodges.[328]

Supplementary shift dispute

Mr Smith gave evidence that on 18 April 2018, a request was made for an employee to work a supp-shift on 24 April 2018 for the purpose of cleaning a 150 tonne haul truck for a major overhaul.[329] As the cleaning would not take the whole of the shift, it was thought that maintenance work could also be performed. The shift was allocated to a mechanical tradesman and it was noted by the relevant leader that ‘no one else was keen’ to do the shift.[330] By 20 April 2018, the AWU, through Mr Price, had notified Mr Smith of an issue regarding the allocation of the supp-shift to an AWMU employee rather than AWU employee, Mr Rod Rose (Mr Rose).[331] Mr Rose also personally raised the issue with Mr Smith.[332]

Mr Smith said that he reviewed the process for selecting the mechanical tradesman.[333] This included reviewing the crew that was best positioned to provide an employee in light of rostering, the type of work to be performed, when the supp-shift fell, and the skills that would be of valuable assistance. In Mr Smith’s view the decision to select a mechanical tradesman was justified.[334]

On 23 April 2018, the AWU notified Mr Smith that if Alcoa was to proceed to use the maintenance tradesman for the supp-shift, the AWU would commence a dispute on behalf of Mr Rose.[335] Through email correspondence, Mr Smith informed Mr Price of Alcoa’s justification for the use of the mechanical tradesman. A stage 1 meeting with Mr Price and the Superintendent of Mobile Maintenance was scheduled. Mr Rose was also in attendance.[336] At the time of filing Mr Smith’s witness statement in these proceedings the matter was not resolved, and had escalated to a stage 2 dispute.

Mr Price gave evidence that insufficient time had been allocated for a truck wash down for a major overhaul.[337] The work was non-trades work done by day to day mineworkers. Mr Price stated that the issue was not about a fitter doing the supp-shift but rather that Alcoa had not followed the supp-shift system. That system provides that if there are insufficient mineworker numbers, the AWU has no issue with trades, staff or contractors performing the work.[338]

Mr Price stated that in 2013, the AWU, AMWU, and Alcoa developed an agreed supp-shift system.[339] The agreed system had an allocation for fitters and mineworkers. It included a crew priority system that offered the supp-shifts to the crews in order of priority and logical shift patterns.[340] In this particular dispute, the supp-shift was offered to the only two available mineworker employees on crew E. They did not accept the shift, so as per the agreed system it should have gone to a crew A mineworker.[341] Mr Price said that the agreed supp-shift system existed as per cl 11.2, and that the Agreement provided Alcoa with the flexibility to offer 12, 10.3, 8 and 5-hour supp-shifts in an effort to make labour competitive.[342]

(b) taking advantage of technological advancements including those justifying personnel reduction;
(c) obtaining benefits from outsourcing or insourcing specialist functions, which inevitably impact manning levels;
(d) reviewing the mix and balance of labour in operational departments and acting on the same; and
(e) responding efficiently and in a timely manner to redesign a mine plan driven by market conditions, and respond to any other prevailing conditions which inevitably impact mining numbers.[622]

Mr Gleeson’s view was that whether the minimum manning requirements apply beyond 2016 remains contentious, and the provision had ultimately resulted in Alcoa holding more employees than required because of the incorrect prediction of numbers within the Agreement.[623] Mr Price gave evidence that since 2016 the AWU had not disputed manning requirements;[624] but nevertheless the obligation remained in the Agreement, ambiguous or not. Until such time as the Concessions were made, and on that point I have previously addressed the problematic nature of the Concessions, there had been no movement by the AWU and its members regarding the minimum manning requirements.

Notwithstanding the evidence of Alcoa regarding the necessity to change manning numbers, and to do so responsively, Mr Price’s view was that haul distances can vary, but not overnight and ‘these changes are planned well in advance. A mine site such as Huntly must plan years and years ahead’. However, Mr Price’s view runs contrary to the evidence before me, and it must be said that predicting manning numbers or the number of supp-shifts some four years prior seems fraught with difficulty.

At paragraph 62 of Mr Smith’s witness statement, Mr Smith gave detailed evidence of the potential future opportunities to make operational changes. His evidence at that paragraph sets out a range of matters which require flexibility and planning for future operations. It was his view that in order to assess the best ways in which to undertake all, or any of the changes he had referred to, the removal of the AWU provisions, including but not limited to the various manning and other requirements, was required.

Since December 2016, Alcoa submitted that it had not been able to achieve certainty about its planning, and the only way in which it could plan, was in the absence of the restraints (meaning the AWU provisions) that come about by way of termination.

The inflexibilities or restraints, arising from the terms of the Agreement are not confined to the manning provision. The obligation to offer 5000 supp-shifts across Alcoa’s WA operations for the life of the Agreement and to offer such shifts contrary to merit, but in a manner that is fair and equitable is said to give rise to productivity,[625] and cost implications.[626] The number of supp-shifts is, according to Mr Gleeson, an arbitrary figure not based on the needs of the respective operations.[627] Labour force planning was said to be further hindered by the costs of labour hire utilisation that arose from labour hire wage rates under the Agreement. Alcoa required the ability to reduce and increase employee numbers to meet export demands.[628] While labour hire was used as a tool to balance peaks and troughs, its use was curtailed because of the associated wage rates.[629] Changes to hours or work, shift rosters and patterns also proved problematic, with Alcoa desiring the ability to move employees across shifts to ensure resources were balanced, or to provide a better performance outcome, without needing employee agreement to do so.[630]

The AWU advanced, through examples, that at times there was flexibility regarding changes to working hours, rosters and shift patterns. However, based on the evidence before me, I am satisfied that Alcoa’s view regarding such inflexibilities is not impugned.

The disciplinary procedure at clause 18 brought with it, its own unique problems whereby a challenge to a proposed course of disciplinary action could require the Commission to rule upon fairness and reasonableness with which Alcoa had, or intended, to implement the disciplinary action. This was not disputed by the AWU. Alcoa held the view that it should be free to act as it deemed appropriate in disciplinary matters with the AWU representing members.[631]

The extended sick leave provision was said to act as a disincentive to return to work with Mr Gleeson providing evidence of absenteeism within Alcoa (on an annual basis across the board approximately 74 hours out of every 80 hours that accrued from year-to-year was taken in paid sick leave), and on other issues that arose from the entitlement.[632]

Union structures and arrangements within Alcoa saw the full-time employment of AWU convenors, supported by deputy convenors, at Huntly and Willowdale. Clause 4.5 of the Agreement set out:

(a)the provision of support to the AWU’s site representatives at the same level as provided under a predecessor agreement which was in force from 2005;[633]
(b)for the same approach to requests from the AWU for paid meetings and for Alcoa to cover travelling expenses associated with interstate meetings;[634]
(c)for continuing arrangements for union convenors, as current at the time the Agreement was negotiated, including providing reasonable access to employees during bargaining for a replacement agreement.[635]

As a consequence of clause 4.5, Mr Price, the AWU Convenor at Huntly, whilst initially being employed with Alcoa as a mining operator in November 1986, does not perform the duties for which he was employed in that job classification. Similarly, at Willowdale the AWU Convenor, Mr King, who started with Alcoa in February 1992 as a mining operator, does not perform the duties for which he was employed in that job classification.

In respect of the ‘2005 Arrangements’ concerning union structures and so forth in clause 4.5 of the Agreement, the termination of the Agreement may result in Alcoa not being required to pay five employees to fulfil the role of a full-time convenor at each of its three refineries and two mines, in circumstances where Alcoa does not regard payment to employees who do not perform production work to be justified.

Alcoa thereafter may not be required to afford paid time for the approximately 166 delegates of AWU employees across its two mines and three refineries to attend various regular monthly and quarterly meetings and/or union training, in circumstances where Alcoa regarded such arrangements as excessive and impeding its efficiency and productivity by impeding the performance of normal work. Further, Alcoa may not be required to pay deputy convenors for all time off work in circumstances where they either cover for their convenors or undertake other union business.

Alcoa may not be required to backfill (or offer supplementary shift work to cover), the absences of deputy convenors and delegates when they are engaged in union organised meetings or other business. Further, exposure to disputes over the precise ambit and reach of the ‘2005 Arrangements’ may be removed.

Evidence was provided concerning the time imposition that was placed on Alcoa’s operations by convening AWU meetings during work time, at particular times, and in particular locations. There was dispute over the evidence regarding the amount of time allocated to the various forms of AWU meetings in this respect.[636] However, on the evidence before me, I am satisfied that Alcoa’s view that the union structures and site representative arrangements came at a cost and inconvenience to Alcoa, was one that was open to it.

Mr Crawford correctly submitted that the AWU and its members have a workplace right to dispute matters under the Agreement and are protected against having adverse action taken against them for exercising a workplace right. Mr Crawford advanced that the Commission must approach an argument by Alcoa that disputation with the AWU justified the termination of the agreement with caution and that the Act stipulates that enterprise agreements and modern awards must contain a dispute resolution clause.

These words of caution are misplaced. Before me I discern no argument that disputation with the AWU per se is the reason for Alcoa advancing its Application to terminate the Agreement. The evidence shows that Alcoa’s focus has been on its operational imperative to secure future flexibility, and to increase productivity and thereafter efficiencies within the instrument that sets for it, its employees, and the AWU, the terms under which they will work, or operate, as the case may be. That is not to say that disputation between the parties has been unproblematic. While the Act cites its object of providing a ‘balanced framework for cooperative and productive workplace relations’ there is a legitimate question to be asked whether the Agreement, an instrument arising under the Act, fosters cooperative and productive workplace relations. In Alcoa’s view the dispute resolution procedure does not operate to do so, as shown by the 46 disputes that were notified in 2016 under the Agreement, with 16 resulting in proceedings before the Commission.

Disputation has been referred to during the course of Alcoa’s evidence to show the steps taken, or concessions made to expedite issues that have been the subject of dispute,[637] the impact on the day to day operational decisions such as the allocation of supp-shifts,[638] secondment of an employee,[639] and the problematic nature of the status quo obligation which in effect stalls a change process therefore reducing responsiveness to operational demands.[640] With regard to cl 19, Alcoa has outlined the problematic issues arising out of the content of that clause, which it submits are significantly broader and more restrictive than the model dispute resolution procedure in the Act.[641] That clause covers ‘all disputes’, which necessarily extends to disputes not only about the application and interpretation of the Agreement, the NES, but any other dispute.[642] The extension to ‘other dispute’ has given rise to disputes where two Convenors have declined to comply with Alcoa’s uniform policy due to a desire to wear AWU badged shirts, and a change in location of a convenor’s office.

The consideration of ‘appropriateness’ involves not only the consideration of the views of the parties, but the reasons for those views. Alcoa’s rationale for its Application is premised on the Agreement containing provisions, and work practices, that are evidently inefficient and out of step with the needs of a flexible and productive enterprise. I am satisfied that the views of Alcoa are not fanciful, fabricated, or embellished. The evidence has shown that there are sound reasons for the views held, including the events of 2015-16 when the business was confronted by a drop in the alumina price, and operational responsiveness was impeded by the limitations placed upon the business by the Agreement. The three Managers gave cogent accounts of the daily operational challenges the Agreement brings, supported with salient examples and, at times, quantitative data.

Mr Crawford advanced that Alcoa had relied on bare assertions from the three Managers to identify restrictive clauses in the enterprise agreement and to advance that Alcoa could not operate effectively with them. According to Mr Crawford there was no objective data that backed up what the Managers had to say.[643] In this respect, Mr Crawford directed me to the decision in Re Allen & O’Brien Pty Ltd,[644] where the Deputy President in that decision reached the conclusion that he was not satisfied, based on the evidence presented, that the existence of the O’Brien Agreement was the cause of or a significant contributing factor to the diminishing profit results experienced by O’Brien. The AWU submitted that the case was quite similar to this Application.

Contrary to the position in Allen & O’Brien, the present case does not rely on bare assertions but as the evidence of Messrs Gleeson, Smith, and Fennessy establishes, on detailed explanations and examples of the restrictive and impairing nature of a variety of terms of the Agreement. Further, again as noted, Alcoa has relied upon objective operational evidence to demonstrate the inefficiencies and barriers to productivity under the present Agreement.

The fact that a termination will lead to greater efficiency and productivity and therefore more profit, has been recognised by the Full Bench and the Federal Court in Aurizon,[645] and CEPU v Aurizon Operations Ltd.[646] It was held by the Full Bench in Aurizon that a more efficient and productive outcome may be achieved through termination of an out of term enterprise agreement. That proposition is not dependent upon the level of profit that that particular employer is, or is not making, at the particular time. Alcoa’s view that the Agreement contains provisions and work practices that are clearly inefficient and out of step with the needs of a flexible and productive enterprise, has not been displaced.

Concerning the alteration of the bargaining position of the parties, although the consideration took place in light of s 226(a) of the Act, it remains relevant when considering whether it is ‘appropriate’ to terminate the Agreement. With regard to the bargaining position of the parties, the AWU placed reliance on the decision in Re Viterra Operations Pty Ltd (Viterra) to support its contention that the termination was being utilised to pressure the employees to accept what Alcoa had conveyed was it best and final offer.[647] The AWU pressed that this was precisely the type of situation alluded to by the Commissioner in Viterra.[648] In Viterra, the Commissioner stated:

Importantly, and for reasons more fully outlined in 4.1 above, I do not consider that the present authorities of the Commission mandate the use of a s.225 termination application simply as a means to pressure employees to accept a previously rejected proposed agreement. That is, each of the cases discussed earlier dealt with circumstances where there were important matters arising from the considerations established under s.226(b) which supported the termination of the relevant enterprise agreement beyond the impact upon the bargaining dynamic and bargaining positions of the parties. In my view, in most cases, something more than simply applying additional leverage will be required to warrant the termination of an Enterprise Agreement during a bargaining process. As is also clear, each case must be determined in its own circumstances having regard to the relevant statutory considerations and there are no presumptions as to the outcome to be made by the Commission in approaching that task.

There is little similarity between the circumstances under the present Application and those before the Commission in Viterra. The observation by the Commissioner that there be matters ‘beyond the impact upon the bargaining dynamic and bargaining positions of the parties’ is readily satisfied in this case.[649] Alcoa has outlined in detail the objective operational imperative for change relating to productivity.

Mr Price expressed the termination of the Agreement would have a major impact in many ways. Mr Price said that the AWU EBA Negotiating Committee had made the Concessions in good faith, to progress bargaining in an effort to reach a reasonable agreement and the membership had made it clear it was not a one way street.[650] If the Agreement was terminated, then everything would be off the table, and the parties would be back to square one.[651] As acknowledged, Mr Gleeson’s evidence was that the termination of the Agreement would ‘enhance’ the bargaining process.[652]

However, as observed, I considered that Mr Price’s evidence, when questioned in cross examination about prospective bargaining, made it clear that if the Agreement was terminated, the AWU continued to be committed to bargaining in good faith. The Convenors, who are also bargaining representatives, have worked at Alcoa for an extended period. While I have found that bargaining has been protracted and an impasse reached, I am satisfied that the termination of the Agreement would not result in the erosion of cooperative and productive relations.

The AWU and employees are known to have adopted a cooperative approach at times. In fact, Mr Price gave evidence that the AWU regularly works collaboratively and productively with Alcoa to improve its operations.[653] By way of example, Mr Price referred to an email from the Refinery Manager at Wagerup, who thanked employees for working ‘professionally and tirelessly’ during a power failure. According to Mr Price this type of effort from the employees continued despite the Application to terminate the Agreement.[654]

The question of appropriateness requires an overall judgment based on all the relevant circumstances of the Application. I have considered those circumstances at length in arriving at a decision, and am satisfied that it is appropriate to terminate the Agreement, taking into account, and balancing all the circumstances including those set out in s 226(b)(i) and (ii).

Conclusion

In having regard to the requirements of s 226 of the Act, the evidence before me and the submissions made on behalf of parties, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so.

In light of the Commission's satisfaction in respect of s 226(a) and (b), the Agreement must be terminated.

In accordance with s 227 of the Act, the termination will be prospective and take effect on and from 7 January 2019. An Order to this effect is issued concurrently with this decision.[655]

DEPUTY PRESIDENT

Appearances:

Mr Dixon of counsel for the Applicant

Mr Crawford for the Respondent.

Hearing details:

Perth, 17 – 21 September 2018

Annexure One

[1] AE407184.

[2] [2014] FWCA 1613.

[3] Ibid.

[4] Witness Statement of Matthew Craig Gleeson (Exhibit A6) (Gleeson’s Statement) [14].

[5] Gleeson’s Statement [11], [21].

[6] Ibid [11].

[7] Ibid [12].

[8] Ibid [13].

[9] Ibid [16].

[10] Ibid [19].

[11] Ibid [23].

[12] AE425800.

[13] AE428778.

[14] Gleeson’s Statement [39] – [40].

[15] [2017] FWCA 5456.

[16] Transcript PN1202-1208.

[17] Ibid PN1288.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Gleeson’s Statement [46].

[23] Ibid.

[24] Ibid [47].

[25] Ibid [49].

[26] Ibid.

[27] Ibid [50].

[28] Ibid.

[29] Ibid [53].

[30] Ibid [54].

[31] Ibid [55].

[32] Ibid.

[33] Ibid [56].

[34] Ibid.

[35] Ibid [58].

[36] Witness Statement of Liam Smith (Exhibit A9) (Smith’s Statement) [34].

[37] Ibid [36].

[38] Witness Statement of Mr Stuart Allen (Exhibit R10) (Allen’s Statement) [13].

[39] Transcript PN1181.

[40] Smith’s Statement [37].

[41] Ibid [38].

[42] Ibid [40].

[43] Ibid [41].

[44] Ibid.

[45] Ibid [42].

[46] Ibid [43].

[47] Ibid.

[48] Ibid [44], Annexure LTS-1.

[49] Smith’s Statement [47].

[50] Ibid [50].

[51] Ibid [51].

[52] Ibid [52].

[53] Ibid [53].

[54] Ibid [55].

[55] Ibid [56].

[56] Ibid [57].

[57] Transcript PN1246-1247.

[58] Ibid PN1248-1249.

[59] Witness Statement of Mr Simon Price (Exhibit R7) (Price’s Statement) [69].

[60] Price’s Statement [69].

[61] Ibid [67].

[62] Witness Statement of Mr Chris King (Exhibit R9) (King’s Statement) [45].

[63] Ibid [45].

[64] Price’s Statement [57].

[65] Ibid.

[66] Smith’s Statement [61].

[67] King’s Statement [46].

[68] Smith’s Statement [80].

[69] Price’s Statement [59] – [60].

[70] Ibid [61].

[71] Witness Statement of Mr Justin Lawrence Fennessy 1 August 2018 (Exhibit A11) (Fennessy’s Statement) [27].

[72] Ibid.

[73] Ibid [32].

[74] Ibid.

[75] Ibid [33].

[76] Ibid [36].

[77] Ibid [37].

[78] Ibid [41].

[79] Ibid.

[80] Ibid.

[81] Ibid [44].

[82] Ibid [45].

[83] Ibid [49]; Transcript PN1493.

[84] Fennessy’s Statement [49].

[85] Transcript PN1493-1495.

[86] Fennessy’s Statement [52].

[87] Ibid [54].

[88] Ibid.

[89] Ibid.

[90] Ibid [55], Annexure JLF-9, JLF-10.

[91] Fennessy’s Statement [59], Annexure JLF-13.

[92] Fennesy’s Statement [60].

[93] Ibid [61].

[94] Ibid [62].

[95] Ibid [63].

[96] Ibid.

[97] Ibid [66].

[98] Transcript PN1501.

[99] Fennessy’s Statement [110].

[100] Ibid [111].

[101] Ibid.

[102] Ibid [112].

[103] Ibid [114].

[104] Ibid [117].

[105] Ibid.

[106] Ibid [116].

[107] Gleeson’s Statement [62].

[108] Ibid.

[109] Ibid [63].

[110] Ibid [64].

[111] Ibid.

[112] Ibid [65].

[113] Ibid.

[114] Ibid.

[115] Ibid [66].

[116] Ibid.

[117] Smith’s Statement [66].

[118] Ibid [69].

[119] Ibid.

[120] Ibid.

[121] Ibid [70].

[122] Ibid [71].

[123] Ibid.

[124] Ibid.

[125] Ibid [72].

[126] Ibid.

[127] Ibid [73].

[128] Ibid.

[129] Ibid [74].

[130] Ibid [75].

[131] Price’s Statement [72].

[132] Ibid.

[133] Ibid.

[134] Ibid [73].

[135] Ibid [74].

[136] Ibid [75].

[137] Ibid [77].

[138] Allen’s Statement [15].

[139] Gleeson’s Statement [74].

[140] Smith’s Statement [79].

[141] Gleeson’s Statement [73]; Transcript PN1145.

[142] Fennessy’s Statement [70].

[143] Ibid.

[144] Ibid.

[145] Gleeson’s Statement [75].

[146] Smith’s Statement [80].

[147] Ibid.

[148] Ibid [81].

[149] Ibid.

[150] Fennessy’s Statement [74].

[151] Ibid [73].

[152] Ibid [74].

[153] Ibid [75].

[154] Ibid [76].

[155] Ibid [77].

[156] Ibid.

[157] Ibid [78], Annexure JLF-14.

[158] Fennessy’s Statememt [78].

[159] Ibid [79].

[160] Allen’s Statement [18].

[161] Ibid.

[162] Gleeson’s Statement [78].

[163] Ibid [79].

[164] Ibid [80].

[165] Ibid.

[166] Ibid.

[167] Ibid [81].

[168] Ibid.

[169] Ibid.

[170] Ibid [82].

[171] Ibid.

[172] Allen’s Statement [20].

[173] Gleeson’s Statement [83].

[174] Smith’s Statement [86].

[175] Fennessy’s Statement [80].

[176] Gleeson’s Statement [86].

[177] Ibid.

[178] Ibid.

[179] Smith’s Statement [89].

[180] Ibid.

[181] Ibid.

[182] Ibid [90].

[183] Ibid.

[184] Ibid.

[185] Price’s Statement [91].

[186] Smith’s Statement [91].

[187] Ibid [91].

[188] King’s Statement[42].

[189] Ibid [43].

[190] Price’s Statement [80].

[191] Smith’s Statement [92].

[192] Ibid [93].

[193] Ibid [94].

[194] Ibid.

[195] Ibid [96].

[196] Price’s Statement [82].

[197] Gleeson’s Statement [86].

[198] Ibid [84].

[199] Ibid.

[200] Ibid.

[201] Ibid [85].

[202] Ibid.

[203] Smith’s Statement [97].

[204] Ibid [98].

[205] Ibid.

[206] Ibid.

[207] Ibid.

[208] Price’s Statement [84].

[209] Ibid [85].

[210] Smith’s Statement [99].

[211] Ibid.

[212] Ibid [100].

[213] Ibid.

[214] Ibid.

[215] Ibid.

[216] Ibid [101].

[217] Ibid.

[218] Ibid.

[219] Ibid [102].

[220] Ibid.

[221] Ibid [103].

[222] Ibid.

[223] Ibid [105].

[224] Ibid.

[225] Ibid.

[226] Ibid [108], Annexure LTS-9, Annexure LTS-10. .

[227] Smith’s Statement [109].

[228] Ibid [110].

[229] Ibid [111].

[230] Ibid [110] – [111].

[231] Ibid [110].

[232] Ibid [117].

[233] Ibid.

[234] King’s Statement [50].

[235] Ibid [51].

[236] Ibid.

[237] Ibid [52].

[238] Ibid.

[239] Ibid [53].

[240] Price’s Statement [91].

[241] Ibid [93].

[242] Smith’s Statement [118].

[243] Ibid [119].

[244] Ibid.

[245] Ibid.

[246] Ibid.

[247] Ibid [120].

[248] Ibid.

[249] Ibid [121].

[250] Ibid.

[251] Gleeson’s Statement [91].

[252] Ibid.

[253] Ibid [92].

[254] Ibid [92], [94].

[255] Ibid [93].

[256] Ibid [95].

[257] Ibid [96].

[258] Ibid.

[259] Ibid.

[260] Ibid.

[261] Ibid.

[262] Ibid.

[263] Smith’s Statement [124].

[264] Ibid.

[265] Ibid.

[266] Ibid [125].

[267] Ibid.

[268] Ibid [126].

[269] Ibid.

[270] Ibid [127].

[271] Ibid [128].

[272] Ibid.

[273] Ibid [129].

[274] Ibid [130].

[275] Ibid [131].

[276] Ibid.

[277] Ibid [134], Annexure LTS-16.

[278] Smith’s Statement [133].

[279] Ibid [134].

[280] Ibid.

[281] Ibid [135].

[282] Ibid [136].

[283] Ibid; Annexure LTS-17.

[284] Price’s Statement [87].

[285] Ibid.

[286] Ibid [87], [90].

[287] Ibid [94] – [95].

[288] Ibid [96].

[289] Smith’s Statement [138].

[290] Ibid.

[291] Ibid.

[292] Ibid [140].

[293] Ibid [141].

[294] Ibid [142].

[295] Ibid [143].

[296] Ibid [144].

[297] Ibid.

[298] Ibid.

[299] King’s Statement [55].

[300] Ibid.

[301] Ibid [56].

[302] Ibid.

[303] Ibid [57].

[304] Smith’s Statement [147].

[305] Ibid [148].

[306] Ibid [149].

[307] Ibid [153].

[308] Ibid.

[309] Ibid [152].

[310] Ibid [154].

[311] Ibid [155].

[312] Ibid [153].

[313] Ibid [156].

[314] Ibid [158].

[315] Ibid [159].

[316] Ibid [159], Annexure LTS-23.

[317] Smith’s Statement [160].

[318] Ibid [161].

[319] Ibid [162], Annexure LTS-26.

[320] Smith’s Statement [164], Annexure LTS-28; Alcoa of Australia Limited T/A Alcoa World Alumina Australia v The Australian Workers’ Union [2016] FWC 3582.

[321] Smith’s Statement [165].

[322] Ibid [168].

[323] Ibid [171], Annexure LTS-32; The Australian Workers’ Union v Alcoa of Australia Limited T/A Alcoa World Alumina Australia [2016] FWC 5672.

[324] Gleeson’s Statement [97].

[325] Smith’s Statement [172].

[326] King’s Statement [59].

[327] Ibid.

[328] Ibid.

[329] Smith’s Statement [173] – [174].

[330] Ibid [175].

[331] Ibid [177].

[332] Ibid.

[333] Ibid [178].

[334] Ibid.

[335] Ibid [180].

[336] Ibid [184].

[337] Price’s Statement [102].

[338] Ibid [106].

[339] Ibid [107].

[340] Ibid [108].

[341] Ibid [109].

[342] Ibid [113].

[343] Smith’s Statement [186].

[344] Ibid.

[345] Ibid [187].

[346] Ibid [186].

[347] Gleeson’s Statement [100].

[348] Ibid.

[349] Ibid.

[350] Ibid.

[351] Ibid [104].

[352] Ibid.

[353] Ibid [112].

[354] Ibid.

[355] Ibid [105].

[356] Ibid [106].

[357] [2017] FWC 5276; Gleeson’s Statement [108].

[358] Gleeson’s Statement [109].

[359] Ibid [110].

[360] Ibid [114].

[361] Ibid [115].

[362] Ibid [116].

[363] Ibid.

[364] Smith’s Statement [190].

[365] Ibid [191].

[366] Ibid.

[367] Ibid [191].

[368] Ibid [193].

[369] Ibid.

[370] Ibid [194].

[371] Ibid [195].

[372] Ibid [196].

[373] Ibid [197].

[374] Ibid [198].

[375] Ibid.

[376] Ibid [199].

[377] Ibid [201].

[378] King’s Statement [62].

[379] Ibid.

[380] Smith’s Statement [202].

[381] Ibid [214].

[382] Ibid [206] – [216].

[383] Ibid [217].

[384] Ibid.

[385] Ibid.

[386] Ibid.

[387] King’s Statement [63].

[388] Smith’s Statement [218(a)(i)(B)].

[389] King’s Statement [64].

[390] Smith’s Statement [218].

[391] Ibid.

[392] Ibid [221].

[393] King’s Statement [66].

[394] Ibid.

[395] Smith’s Statement [221].

[396] King’s Statement [65].

[397] Smith’s Statement [222].

[398] Ibid [224].

[399] Ibid [225].

[400] Ibid.

[401] Ibid [227].

[402] Ibid [230].

[403] Ibid.

[404] Ibid [231].

[405] Ibid [232].

[406] Ibid [233].

[407] Ibid [234].

[408] Ibid [235].

[409] Ibid [237].

[410] Ibid [238].

[411] Ibid [239].

[412] Ibid [240].

[413] Ibid [241].

[414] Ibid [243].

[415] King’s Statement [39].

[416] Allen’s Statement [45].

[417] Price’s Statement [46].

[418] Ibid [47].

[419] Gleeson’s Statement [127].

[420] Ibid [128].

[421] Ibid [142].

[422] Ibid.

[423] Ibid [129].

[424] Ibid [127].

[425] Ibid [132].

[426] Ibid.

[427] Ibid.

[428] Ibid [129].

[429] Ibid [133].

[430] Ibid.

[431] Ibid [133] – [134].

[432] Ibid [135].

[433] Ibid.

[434] Ibid [140].

[435] Ibid; Annexure MCG-3.

[436] Gleeson’s Statement [142].

[437] Ibid [47].

[438] Ibid [211].

[439] Ibid [212] – [217].

[440] Ibid [220].

[441] Ibid [223].

[442] Ibid.

[443] Ibid [224].

[444] Ibid [225].

[445] Ibid [226].

[446] Ibid [227].

[447] Ibid [228] – [230].

[448] Witness Statement of Matthew Gleeson in Reply (Exhibit A7) (Gleeson’s Reply Statement) [5]-[24].

[449] Alcoa’s Submissions [16].

[450] Transcript PN1989, PN2012; Gleeson’s Reply Statement, Annexure MCG1.

[451] Transcript PN2014.

[452] Ibid PN2024-2026.

[453] Ibid PN2027.

[454] Ibid PN2043.

[455] Ibid PN2044.

[456] Exhibit A3.

[457] Exhibit A5.

[458] Alcoa’s Opening Submissions [19]; Exhibit A3.

[459] Transcript PN2074.

[460] Ibid PN2075.

[461] Price’s Statement [as numbered].

[462] Transcript PN2110-2111.

[463] Ibid PN2138.

[464] Ibid PN2140.

[465] Ibid PN2142.

[466] Ibid PN2148-2153.

[467] Ibid PN2201.

[468] Ibid PN2202-2203, 2205.

[469] Ibid PN2231-2245.

[470] Allen’s Statement [9].

[471] Ibid [10].

[472] Alcoa of Australia Sustainability Highlights ‘Economic Performance’ (Exhibit R1) 16.

[473] Ibid.

[474] Ibid.

[475] Witness Statement of Nicholas Kamper 27 August 2018 (Exhibit R6), Appendix B ASIC Financials, 6.

[476] Ibid.

[477] Exhibit R1, 3.

[478] Outline of Final Submission for the Australian Workers’ Union [21].

[479] Transcript PN360.

[480] Ibid PN361-362.

[481] Ibid PN361-362.

[482] Ibid PN362.

[483] Ibid PN1010.

[484] Smith’s Statement [41]; Transcript PN1027.

[485] Transcript PN1025-1027; Exhibit R3 (Aluminium, Alumina and Bauxite Document).

[486] Transcript PN1025-1062.

[487] Ibid PN1026 – 1059.

[488] Ibid PN1060.

[489] Witness Statement of Nicholas Kamper (Exhibit R5) (Kamper’s Statement) [1].

[490] Ibid [2].

[491] Ibid.

[492] Transcript PN1671-1672.

[493] Ibid PN1650.

[494] Ibid PN1686.

[495] Ibid PN1693.

[496] Ibid PN1675-PN1699.

[497] Ibid PN1713.

[498] Ibid PN1713-1714.

[499] Ibid PN1711-1736.

[500] Ibid PN1713-1736.

[501] Kamper’s Statement, Appendix B.

[502] Ibid.

[503] Transcript PN1706.

[504] Ibid PN1707.

[505] Fair Work Act 2009 (Cth) s 228.

[506] Ibid ss 229 – 230.

[507] Ibid ss 234 – 235

[508] Ibid ss 236 – 237.

[509] Ibid ss 238 – 239.

[510] Ibid s 240.

[511] Re Aurizon Operations Limited (2015) 249 IR 55, [120] (‘Aurizon’).

[512] (2015) 249 IR 55, [125].

[513] Fair Work Act 2009 (Cth) ss 408 – 410.

[514] Ibid ss 408, 411.

[515] Ibid s 415.

[516] Workplace Relations Act 1996 (Cth) ss 435 – 448.

[517] Fair Work Act 2009 (Cth) s 228(2).

[518] Ibid s 186(5).

[519] Ibid s 54(1).

[520] Ibid s 54(2)(a).

[521] Ibid ss 54(2)(c), 58.

[522] Ibid s 417.

[523] Ibid ss 418 – 420.

[524] Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

[525] Alcoa’s Outline Submissions [21]

[526] Ibid [22(c)]; Fair Work Act 2009 (Cth) s 3(c).

[527] Alcoa’s Outline of Submissions [22(c)]; Fair Work Act 2009 (Cth) s 3(f).

[528] Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [43].

[529] Alcoa’s Outline of Submissions [22(c)].

[530] Ibid [22(c)].

[531] Ibid [22(c)].

[532] Gleeson’s Statement [238]; Gleeson’s Reply Statement [42].

[533] Alcoa’s Outline of Submissions [26].

[534] AMWU v The Griffin Coal Mining Company Pty Ltd [2016] FWCFB 4620, [46].

[535] Alcoa’s Outline of Submissions [26(a)].

[536] Gleeson’s Statement [239].

[537] Transcript PN540.

[538] Ibid PN1010-1012.

[539] Exhibit R1, 4; Exhibit R3 – Figure 11.1, 86.

[540] Exhibit R1, 16; Exhibit R6, Appendix B, 21.

[541] Transcript PN417 – 418.

[542] Exhibit A10, [16].

[543] Exhibit A9, [16]; Exhibit A9, [19]; Transcript PN1230-1236.

[544] Transcript PN1263, 1503.

[545] Ibid PN1492-1495.

[546] Ibid PN1500.

[547] Ibid PN837.

[548] Ibid PN1454.

[549] Exhibit A7, [65] – [69].

[550] Transcript PN482-498.

[551] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19].

[552] CFMEU v Peabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, 261 [17] – [18].

[553] Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re Boom Logistics Ltd [2016] FWCA 82, [64]; Re Allen & O’Brien Pty Ltd [2016] FWCA 1906, [11]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 [18], [30]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [67]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [308], [379]; Re SDA[2014] FWCA 4058, [10].

[554] Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].

[555] Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re The Griffin Coal Mining Company Pty Ltd[2016] FWCA 2312 [116], [117], [130], [132]; Re Boom Logistics Ltd[2016] FWCA 82, [64]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [18]; Re Tricare Residential Aged Care Facilities [2017] FWCA 162, [67], [76]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [309]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [62]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon OperationsLtd (2015) 233 FCR 301, [11]; Re SDA [2014] FWCA 4058, [9].

[556] Re Tahmoor Coal Pty Ltd (2010) 204 IR 243, [66]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [13]; CFMEU vPeabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, [25]; Re Murdoch University [2017] FWCA 4472, [182].

[557] CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re Aurizon Operations Limited (2015) 249 IR 55, [149]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [123]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [26]; Re Murdoch University [2017] FWCA 4472, [305], [311].

[558] Re Aurizon Operations Limited (2015) 249 IR 55, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].

[559] ReAurizon Operations Limited (2015) 249 IR 55, [140] – [141], [143], [149]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [305].

[560] CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [105].

[561] (2005) 139 IR 34.

[562] [2017] FWCA 226.

[563] Allen’s Statement [35].

[564] Price’s Statement [41].

[565] Exhibit R1, 16.

[566] Fair Work Act 2009 (Cth) s 3.

[567] Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

[568] Exhibit A4, cl 26.2, 26.3.

[569] Re Viterra Operations Pty Ltd[2018] FWC 1161, [55].

[570] ReAurizon Operations Limited (2015) 249 IR 55, [140] – [141], [143], [149]; Re Project Coordination (Australia) Pty Ltd[2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [305].

[571] Exhibit R1, 16; Exhibit R6, Appendix B, 21.

[572] Gleeson’s Statement [234].

[573] Transcript PN2160.

[574] Gleeson’s Statement [234].

[575] Ibid.

[576] Ibid [235].

[577] Ibid.

[578] Ibid [236].

[579] Allen’s Statement [40]; King’s Statement [36].

[580] Price’s Statement [40].

[581] King’s Statement [36].

[582] CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25].

[583] Ibid.

[584] Ibid.

[585] Transcript PN2148-2153.

[586] Ibid PN2155.

[587] Ibid PN2158.

[588] Ibid PN2126-2134.

[589] Ibid PN2200-2208, 2212-2245.

[590] Ibid PN2158.

[591] Ibid PN650.

[592] Exhibit R8.

[593] Transcript PN2127.

[594] Ibid PN2127-2129.

[595] CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [105].

[596] ReAurizon Operations Limited (2015) 249 IR 55, [164].

[597] Transcript PN348, 360-362, 540-543, 1012-1013, 1242, 1249.

[598] Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

[599] ReAurizon Operations Limited (2015) 249 IR 55, [167].

[600] ERA v LHMU[2010] FWA 2434, [15]; Re Allen & O’Brien Pty Ltd[2016] FWCA 1906, [22]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [78], [115]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [4], [35]; Re Murdoch University [2017] FWCA 4472, [396]; Re Pinarello Blues Pty Ltd as trustee for Judds Discretionary Trust t/as Yankalilla Hotel[2015] FWCA 7698, [98].

[601] Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [74], [104]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13], [14]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].

[602] Re Aurizon Operations Limited (2015) 249 IR 55, [142]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13].

[603] Re Aurizon Operations Limited (2015) 249 IR 55, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [103]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13]; Re Murdoch University [2017] FWCA 4472, [455]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].

[604] ERA v LHMU[2010] FWA 2434, [15]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19].

[605] Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312, [173]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [142], [154], [161]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [63]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [29], [55]; CFMEU v Peabody Energy Australia PCI Mine Management Pty Limited (2016) 260 IR 255, [2].

[606] AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [51], [66]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226.

[607] Re The Griffin Coal Mining Company Pty Ltd[2016] FWCA 2312, [156].

[608] King’s Statement [33].

[609] Ibid [34].

[610] Ibid.

[611] Price’s Statement [34].

[612] Ibid [35].

[613] Ibid .

[614] Ibid [37].

[615] Re Murdoch University [2017] FWCA 4472, [404] – [405].

[616] Re Aurizon Operations Limited (2015) 249 IR 55, [158] – [160].

[617] Transcript PN591-592.

[618] Transcript PN96.

[619] Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [147].

[620] Price’s Statement [44].

[621] Smith’s Statement [34].

[622] Ibid [37].

[623] Gleeson’s Statement [53].

[624] Price’s Statement [57].

[625] Smith’s Statement [66] – [70].

[626] Gleeson’s Statement [75].

[627] Ibid [62].

[628] Smith’s Statement [81].

[629] Fennessy’s Statement [70].

[630] Gleeson’s Statement [85].

[631] Ibid [109].

[632] Ibid [115].

[633] Smith’s Statement [191]; Annexure LTS-37.

[634] Ibid.

[635] Smith’s Statement [191].

[636] King’s Statement [63], [65] – [66]; Smith’s Statement [202] – [223].

[637] Smith’s Statement [111].

[638] Ibid [173] – [185].

[639] Ibid [138] – [146].

[640] Ibid [136].

[641] Gleeson’s Statement [19].

[642] Smith’s Statement [122].

[643] Transcript PN2586.

[644] [2016] FWCA 1906 (‘Allen & O’Brien’).

[645] (2015) 249 IR 55.

[646] (2015) 233 FCR 301.

[647] Re Viterra Operations Pty Ltd [2018] FWCA 1161, [74].

[648] Ibid.

[649] Re Viterra Operations Pty Ltd [2018] FWCA 1161, [74].

[650] Price’s Statement [39].

[651] Ibid.

[652] Gleeson’s Statement [234] – [239].

[653] Price’s Statement [46].

[654] Ibid [47].

[655] PR703444.

Printed by authority of the Commonwealth Government Printer

[2018] FWCA 7624

20 DECEMBER 2018