No judgment structure available for this case.

[2018] FWC 6448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Alcoa of Australia Limited T/A Alcoa World Alumina Australia
v
Australian Workers’ Union, The
(C2018/5802)

DEPUTY PRESIDENT BEAUMONT

PERTH, 26 OCTOBER 2018

Alleged industrial action at the applicant’s WA operations.

[1] On 17 October 2018, the Fair Work Commission (the Commission) issued an Order 1 under s 418(1) of the Fair Work 2009 (Cth) (the Act). The Order required The Australian Workers’ Union (the AWU) including its officers, delegates, employees and agents who come into contact with, or have responsibility for, the employees of Alcoa of Australia Limited (Alcoa) employed under the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (the Agreement) and who are members, or eligible to members, of the AWU, (the Employees) to stop organising, and not organise, any industrial action involving any of the Employees. The Employees work at Alcoa’s Western Australia operations.

[2] The Order further required each Employee at all of Alcoa’s Western Australian operations including Bunbury Port Terminal, Exploration Drillers, Huntly, Willowdale, Kwinana, Pinjarra and Wagerup refineries (WA Operations) to not engage in industrial action in the form of an indefinite stoppage of work from 17:00hrs on 17 October 2018 and ongoing until notified, and all indefinite stoppages of work that commenced before 17:00hrs on 17 October 2018 and were ongoing until notified by the Employees working at the locations specified at Annexure One of this decision.

[3] Set out below are the reasons for the Order 2.

Background

[4] At 22:15hrs on 16 October 2018, Alcoa made an application to the Commission for an order to stop industrial action by Employees under s 418 of the Act, in the terms set out in the introductory paragraphs of this decision.

[5] According to Alcoa, the AWU was organising industrial action, it was being threatened by the Employees and was being taken by the Employees. That industrial action relevantly consisted of:

i. an indefinite stoppage of work from 17:00 on Wednesday 17 October 2018 and ongoing until notified, by all members at all sites including Bunbury Port Terminal, Exploration Drillers, Huntly, Willowdale, Kwinana refinery, Pinjarra refinery and Wagerup refinery (All Sites) (17 October All Sites Indefinite Stoppage); and

ii. all indefinite work stoppages that commenced prior to on Wednesday 17 October 2018 and ongoing until notified, by members specified at the locations specified (Pre-17 October Indefinite Stoppages), set out in the table… 3

[6] Section 420(1) requires that as far as practicable, an application under s 418 must be determined within two days after it is made. An order for substituted service was sought by Alcoa, as it was said to be impracticable for Alcoa to serve each Employee in accordance with the Fair Work Commission Rules 2013 (Cth). The application for substituted service was granted.

[7] The matter was listed for Hearing at 14:00hrs the following day, on 17 October 2018. At the Hearing, Alcoa and the AWU requested and were granted leave under s 596(2)(a) of the Act to be legally represented. Mr Rayn Wade (Mr Wade) of Counsel appeared for Alcoa and Mr Carl Young (Mr Young), appeared for the AWU. Mr Young’s appearance was confined to the AWU; there was no appearance or representation on behalf of Employees. No party to this application sought an adjournment of proceedings.

[8] Mr Matthew Gleeson, Director of Employee Relations, and Learning and Development (Mr Gleeson) gave evidence on behalf of Alcoa and Mr Stuart Allen, elected representative for AWU members of Pinjarra (Mr Allen), gave evidence on behalf of the AWU.

[9] Mr Gleeson said that the parties had been in negotiations for a new agreement to replace the Agreement from around December 2016. 4 The Commission approved the Agreement on 10 March 2014 and its nominal expiry date was 31 March 2017. The AWU is covered by the Agreement. A total of 50 negotiating meetings had been held, in addition to 2 Commission assisted processes, including 12 meetings conducted under New Approaches.5 This evidence was uncontroversial and was accepted by the AWU.

[10] With regard to attendance at bargaining meetings, Mr Gleeson said that Mr Allen was a member of the AWU negotiating committee, and that after Mr Simon Price, Convenor Huntly (Mr Price), Mr Allen was the second most regular speaker in that committee and attended bargaining meetings regularly. 6

[11] Mr Gleeson continued that there had been a number of strikes across the WA Operations the most significant of which was the indefinite stoppages commencing on 8 August 2018 and continuing up until the date of the Hearing. 7 However, it was the case that many of the AWU members had returned to work on 1 October 2018 following a meeting of AWU members on 28 September 2018.8 The number that had returned was estimated to be approximately 80%.9

[12] Alcoa had made an application to terminate the Agreement and a Hearing had been held between 17 and 20 September 2018. The decision was reserved (Termination Proceedings).

[13] On 18 September 2018, Mr Mike Zoetbrood, Branch Secretary AWU, (Mr Zoetbrood) sent a letter to Mr Gleeson titled ‘Re Agreement Negotiations – Confirmation of Concessions’, in which the AWU set out a range of concessions regarding the proposed agreement. Those concessions had been communicated to Alcoa through the Termination Proceedings. 10 The AWU’s concessions set out in the letter of 18 September 2018 mirrored the affidavit evidence filed in the Termination Proceedings.11

[14] On 19 September 2018, Mr Zoetbrood sent an email to Mr Gleeson and others at Alcoa, in which he outlined the AWU’s and its members’ concerns and sought a response. 12 Those concerns were about job security, redundancy provisions, and the lack of a mechanism to convert long term labour hire and casual employees to permanent positions. On concluding the email, Mr Zoetbrood stated:

As committed by Alcoa at today’s meeting we expect a response in writing addressing our members concerns and Alcoa’s proposed resolutions.

If you require any further details or information please contact me. 13

[15] On 20 September 2018, Mr Simon Butterworth, Chief Operating Officer – Refining, Alcoa (Mr Butterworth), emailed an unsigned letter to Mr Zoetbrood setting out Alcoa’s proposals in response to the aforementioned concerns of the AWU (Butterworth Letter). 14 Mr Gleeson stated that with regards to Alcoa’s proposals he ‘...was informed by the AWU [sic] were accepted by the AWU as addressing the issues raised in the AWU email of 19 September 2018’.15

[16] Mr Gleeson expressed that since the Butterworth Letter was sent to Mr Zoetbrood, the AWU had not responded, or in any way indicated, whether in meetings or otherwise, that Alcoa’s proposal to address the outstanding AWU concerns were inadequate, or that there were any other outstanding concerns or issues outside of the concessions and the concerns raised in Mr Zoetbrood’s email dated 19 September 2018. 16

[17] It was not initially apparent from Mr Gleeson’s witness statement and thereafter evidence given at Hearing 17 that a meeting had been held on 26 September 2018 between Alcoa and the AWU. Mr Gleeson’s evidence was:

I put it to you that on 26 September there was a meeting with the AWU negotiating committee. Do you recall that?---I don't. It may have happened, but if – with my – I don't recall the details of the meeting, but I do believe that we told the union that we had made the changes that they had proffered and it had been consulted between Mr Zoetbrood and Mr Butterworth in particular, showed them that in the enterprise agreement, and advised them we were going to vote. 18

…

Would it have taken place on Wednesday, 26 September at the golf club?---It was – I recall it being at the golf club, I can't remember the date of it.

And the full negotiating teams were there from both Alcoa and the AWU?---There may have been one or two missing, but the majority.

Thank you. And you gave a presentation in electronic form, I understand, on an overhead walking through the proposed changes to the document; is that right?---Correct. Yes. 19

[18] Mr Gleeson continued that at the ‘golf club’ meeting he presented the changes to the proposed agreement 20 and such changes had arisen out of the correspondence between Mr Butterworth and Mr Zoetbrood.21 Further, Mr Gleeson’s evidence was that he would not say that the job security issue was the only outstanding issue (the AWU had) that needed to be addressed in the ‘golf club’ meeting, and clearly the AWU had a whole bunch of things.22

[19] Concerning the taking of notes or record taking at the ‘golf club’ meeting, Mr Gleeson’s evidence was that his usual practice when given or provided with counter proposals to existing proposals, was to record the counter proposal, but on this occasion he had not recorded such counterproposals at the meeting on the 26September 2018. 23 Further, Mr Gleeson said that there had been no correspondence, email, internally or externally, that confirmed alleged areas of discontent in the proposed agreement.24

[20] During the course of the Hearing, Mr Allen’s evidence was that a meeting had been held and that Mr Gleeson had presented slides on the proposed agreement. In response to the statement that the AWU, and the people representing the AWU, did not respond to Mr Gleeson’s presentation at the golf club, Mr Allen’s evidence was ‘Yes, we did’. However, in cross examination, when questioned about disagreements with the proposed agreement Mr Allen stated:

You say those disagreements are recorded?---We have raised the issues of concern numerous times with Alcoa.

That wasn't my question, Mr Allen. My question is confined to the golf course meeting. Do you have any sort of record - - -?---On that one specific day are you saying? That one day?

Yes. Do you have any sort of record - a subsequent letter, an email, a minute which you sent to the company or which you sent out to your membership - anything to record what areas of disagreement you say were raised at that meeting?---No, no, I don't think I have.

You would have kept notes of that meeting?---I didn't take a notepad to that meeting. It was purely Alcoa there to present us with the document that they were going to send to their employees. That was all we were there for.

So then nobody - - -?---We raised concerns through the process and that was it.

Apologies. So did nobody in the AWU delegation actually make a note of what Alcoa was presenting as the now, from their perspective, final enterprise agreement which they said met your concerns?---I'm sure there were people taking notes. I just wasn't.

I'm not going to ask you to explain where those notes are, because obviously you can't answer that question, but you took no notes?---No.

So what you're saying about what was discussed is purely from your memory of what you say was discussed?---That's correct. 25

[21] Mr Gleeson’s evidence was that Alcoa’s proposals, as set out in the Butterworth Letter, were subsequently adopted and included into the proposed agreement which at the time of Hearing was currently subject to a vote. 26 The vote for the proposed agreement closed at midday on 18 October 2018.27

[22] According to Mr Gleeson, from 1 October 2018, when most AWU members returned to work, there had been no further strike action, no further bargaining meetings, no additional demands and no current notice of industrial action other than those referred to in this decision.

[23] On 4 October 2018, an all sites committee meeting (AWU members) had been held where a strategy was discussed amongst the AWU members with Mr Wille Hope (Clifford also referred to as Willie), AWU Convenor (Mr Hope), and Mr Allen. 28 That strategy was the appointment of alternative bargaining representatives. According to Mr Allen the purpose of the strategy was to ‘get the company to talk to us directly, a negotiating committee, rather than talking to politicians and people not connected with the document in any real sense’29. This point is detailed further at paragraphs [29]-[32] of the decision.

[24] On 11 October 2018, Mr Gleeson received an email from Mr Young attaching a notice of industrial action, notifying of an indefinite work stoppage from 17:00hrs on 17 October 2018 (Exhibit A1 MCG-5). The indefinite stoppage was proposed to occur concurrently with the indefinite stoppages occurring under the notices set out in Annexure One.

Industrial action being taken or threatened

[25] Mr Gleeson’s evidence was that on 12 October 2018 (before 1642hrs) he was forwarded two text messages. 30 The first stated:

Bargaining representatives – a strategy

[29] The second text message that Mr Gleeson received was one that was authored, according to Mr Allen, by Mr Price and was sent following the all sites committee meeting on 4 October 2018. However, Mr Allen gave evidence he had not received the following text message and was unaware how it was disseminated.

[30] With regard to its content the second text message specially concerned revoking and appointing new bargaining representatives. The AWU was the only official bargaining representative and they had made written commitments during bargaining that they could not retract. 37 Toward the end of the text message was the following:

…

I think it would be a good strategy to get our members to nominate the Convenors as bargaining representatives. The company couldn’t refuse [sic] meet with us if we were bargaining representatives. It would certainly throw the cat amongst the pigeons and there is no way the company would want this.

Members could simply text the below to Matthew to nominate the Convenors as bargaining representative.

Send to numbers at bottom of this text below …

Stu Allen… 38

[31] The strategy to revoke bargaining representatives and appoint new ones was said to have been discussed at the all sites committee meeting and Mr Allen confirmed that an official of the AWU was there. The purpose of the strategy was expressed by Mr Allen as:

The purpose was to get the company to talk to us directly, a negotiating committee, rather than talking to politicians and people who are not connected with the document in any real sense. 39

[32] Mr Gleeson gave evidence that he had received several revocations of the AWU as a bargaining representative and that approximately 110 former AWU members represented by the AWU had now chosen a different bargaining representative, being one of Mr Allen, Mr Price or Mr Hope. This evidence was uncontroversial with Mr Allen agreeing a number had appointed different bargaining representatives from that of the AWU. 40 Mr Allen gave evidence that he knew of no instruction countermanding the strategy to appoint a different bargaining representative.41

Alcoa’s contentions

[33] Alcoa contended that the industrial action is not, or would not be, protected industrial action under the Act on the grounds that follow.

[34] First, it is said that the 17 October All Sites Indefinite Stoppage and Pre-17 October Indefinite Stoppages were not being taken to support or advance claims made in respect of enterprise negotiations because there are no identifiable claims which the industrial action can be said to be supporting.

[35] Second, the purpose of the proposed 17 October All Sites Indefinite Stoppage was to support the Change the Rules campaign (Campaign) across the nation that was to be conducted by the Australian Council of Trade Unions (ACTU). It was further advanced that the proposed 17 October All Sites Indefinite Stoppage was not directed only at Alcoa. It followed, according to Alcoa, that the 17 October All Sites Indefinite Stoppage and the Pre-17 October Indefinite Stoppages that continued after 17:00 on Wednesday, 17 October 2018 were unprotected industrial action as they were not being taken to support or advance claims made in respect of enterprise negotiations.

[36] Third, Alcoa referred to the appointment of new bargaining representatives for a replacement Agreement, who either held positions in the AWU WA Branch (Mr Allen and Mr Hope) or who represented the AWU as a delegate (Mr Price). According to Alcoa the new bargaining representatives had the aim of ‘putting the cat amongst the pigeons’ and in doing so, would not advance orderly collective bargaining. As a consequence the AWU through its representatives were not genuinely trying to reach agreement, a requirement set out at s 413(2) to take protected industrial action.

[37] Fourth, to constitute an ‘employee claim action’ industrial action must, among other things, meet the requirements set out in Subdivision B. Section 414(6) of Subdivision B provides that ‘[A] notice given under this section must specify the nature of the action and the day on which it will start’. It followed that a notice that fails to ‘specify the nature of the action’ did not meet the notice requirements in s 414(6).

[38] In addition to the aforementioned grounds, Mr Wade submitted that in assessing the overall evidence, the Commission was to draw an adverse Jones v Dunkel inference in respect of at least the failure to call Mr Hope, Mr Price and last, but most certainly not least, Mr Zoetbrood.

[39] Regarding Mr Zoetbrood, Mr Wade continued that by not testifying in respect of the notice which was the subject of these proceedings and by not presenting himself to the Commission, Mr Zoetbrood had shielded himself from very important and hard questions concerning his awareness of the so called strategy behind the strike notice and its relationship with the Campaign.

[40] It was advanced on behalf of Alcoa that Mr Allen's evidence on key issues was lacking in credibility, augmented by the fact that the account he wanted accepted simply was not probable. This was not least of all because it conflicted directly with certain known objective facts which could not be disputed and which had not been disputed.

The AWU’s contentions

[41] The AWU submitted that it disagreed with the first contention advanced by Alcoa and said that in spite of the proposed agreement being put out to ballot there remained a raft of issues between the parties. 42

[42] Concerning the second contention, Mr Young submitted that the text messages may be nothing more than a sheer coincidence when one took into account that balloting for the proposed agreement was occurring. 43

[43] It was the case, according to Mr Young, that the AWU had been genuinely trying to reach agreement and that individuals ‘opting’ out from having the AWU represent them did not take away from the AWU genuinely trying to reach agreement. 44

Relevant legislative provisions

[44] The following sections of the Act are relevant to the submissions advanced by the parties and the decision.

[45] Section 418(1) provides as follows:

(1) If it appears to the FWC that industrial action by one or more employees or

employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[46] Section 408 informs that industrial action is ‘protected industrial action’ for a proposed enterprise agreement if it is, amongst other actions, ‘employee claim action’ for the agreement. Section 409 defines ‘employee claim action’ as industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing

claims in relation to the agreement that are only about, or are reasonably

believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the

agreement, by:

(i) a bargaining representative of an employee who will be covered by

the agreement; or

(ii) an employee who is included in a group or groups of employees

specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

[47] Division 2 of Part 3-3 of the Act at s 413 sets out the common requirements which relevantly include:

…

Genuinely trying to reach an agreement

(3) The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement – the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement – the bargaining representative of the employee.

Notice requirements

(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.

[48] The notice requirements for employee claim action are, as aforementioned, set out in s 414:

Notice requirements – employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee

…

Notice requirement - contents

(2) A notice given under this section must specify the nature of the action and the day on which it will start.

Consideration

[49] Alcoa submitted that the industrial action proposed by the AWU in its s 414 notices is not protected industrial action because it does not meet the requirements for employee claim action in s 409 of the Act.

[50] In short the grounds for Alcoa’s submission included that the industrial action being taken did not support or advance claims in respect of enterprise agreement negotiations because there were no identifiable claims which the action could be said to be supporting. Further, the purpose of the industrial action was to support the Campaign run nationally by the ACTU. The appointment of new bargaining representatives had the aim of disrupting bargaining and therefore the AWU, through its representatives, was not genuinely trying to reach agreement and the notice of industrial action issued in relation to the 17 October All Sites Indefinite Stoppage did not meet the requirements under s 414(6).

[51] It has been said by Bull DP in DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union and Others, 45 that the Commission must bear in mind the urgency in which s 418 applications are made and heard. The Deputy President continued that this urgency can result in the Commission being faced with evidence of a lesser standard than might otherwise be expected from parties to a matter where considerable notice of a listing is given, as the best evidence is not always available at short notice.46

Industrial action – protected or unprotected

No identifiable claims

[52] The parties referred the Commission to a period of bargaining that had extended to at least 18 months, if not more, in which 50 negotiating meetings had been held. Twelve of those meetings had been conducted under the interest based bargaining model at the Commission.

[53] Mr Gleeson gave evidence that Mr Zoetbrood had informed Alcoa on 19 September 2018, that the AWU and its members had concerns about job security amongst other matters in the email. 47 In response, Mr Butterworth responded setting out Alcoa’s proposals in in the email dated 19 September 2018 that were subsequently adopted into the proposed agreement that Mr Gleeson stepped through with the AWU at the meeting on 26 September 2018.48

[54] Mr Gleeson gave evidence that at the presentation on 26 September 2018 the AWU did not express opposition to the proposed agreement. However, he held the view that job security was not the only outstanding issue and that clearly the AWU had a whole bunch of things. 49 Mr Gleeson did not give evidence on what those outstanding issues or ‘whole bunch of things’ were.

[55] Mr Gleeson’s evidence was that since the Butterworth Letter was sent to Mr Zoetbrood, the AWU had not responded, or in any way indicated, whether in meetings or otherwise, that Alcoa’s proposal to address the outstanding AWU concerns was inadequate or that there were any other outstanding concerns or issues outside of the concessions and the concerns raised in Mr Zoetbrood’s email dated 19 September 2018. 50

[56] During the course of the Hearing, Mr Allen’s evidence was that a meeting had been held and that Mr Gleeson had presented slides on the proposed agreement. In response to the statement that the AWU, and the people representing the AWU, did not respond to Mr Gleeson’s presentation, Mr Allen’s evidence was ‘Yes, we did’. Mr Allen gave the following evidence:

Were there any objections raised by the AWU; and if so, what were they?---Yes, there were a few. From memory one was about the nominal term in referral to the forced and unforced redundancies, and it was raised as a concern. Another concern was around the changing of current job descriptions, the ability for the company to change current job descriptions and the wording around that. There was one, I think there was a concern around the additional hours being expected. There was a concern also raised about the contract - our ability to still contract out or work without having a manning number, was a concern. I think there was another one about - you're testing my memory. There was another one I think around the fact that the company could move someone from a shift to a day rate without any financial safety net for that individual. I'm sure there's more, I'm just struggling to remember.

Just to clarify, these matters were raised as issues of concern with Alcoa on the 26th?---Correct. 51

[57] When cross examined Mr Allen stated with regard to disagreements with the content of the proposed agreement:

You say those disagreements are recorded?---We have raised the issues of concern numerous times with Alcoa.

That wasn't my question, Mr Allen. My question is confined to the golf course meeting. Do you have any sort of record - - -?---On that one specific day are you saying? That one day?

Yes. Do you have any sort of record - a subsequent letter, an email, a minute which you sent to the company or which you sent out to your membership - anything to record what areas of disagreement you say were raised at that meeting?---No, no, I don't think I have.

You would have kept notes of that meeting?---I didn't take a notepad to that meeting. It was purely Alcoa there to present us with the document that they were going to send to their employees. That was all we were there for.

So then nobody - - -?---We raised concerns through the process and that was it.

Apologies. So did nobody in the AWU delegation actually make a note of what Alcoa was presenting as the now, from their perspective, final enterprise agreement which they said met your concerns?---I'm sure there were people taking notes. I just wasn't.

I'm not going to ask you to explain where those notes are, because obviously you can't answer that question, but you took no notes?---No.

So what you're saying about what was discussed is purely from your memory of what you say was discussed?---That's correct. 52

[58] Mr Wade submitted that since the golf club meeting (assumed to have been held on 26 September 2018), almost a month had passed and Mr Allen, could not point to any email, note on the back of a napkin or otherwise, any document, any minute or anything which referenced what claims were asserted at the meeting. Mr Wade advanced that it would seem reasonable that for one to put forward industrial action there must be identifiable claims. That is, the employer must know what is at issue and what it is to do to avert the potential action. Mr Allen agreed with the statement although afterward he requested that he be asked the question again. 53

[59] Mr Young argued that to claim that there were no identifiable claims was make believe and drew the Commission’s attention to there being a difference of opinion by the parties on the amount a redundancy payment was to be capped. The AWU was pursuing 80 weeks regarding redundancy payment as referenced in Exhibit A1 Annexure MCG-1 para [4], in contrast to the proposed agreement that referred to 70 weeks. Mr Young continued that for Alcoa to advance that they did not know what the outstanding issue were flew in the face of Alcoa’s perverted version of reality.

[60] A ‘proposed agreement’ as that term is understood in Part 3-3 need not be settled. In the decision of the Full Bench in Maritime Union of Australia, The v Maersk Crewing Australia Pty (Maersk Crewing) 54 the expression ‘proposed agreement’ was considered by reference to the Full Bench decision in Mermaid Marine Vessel Operations Pty ltd v The Maritime Union of Australia.55 It was observed that a proposed agreement was ‘the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining’.56 In MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire)57, also referred to in Maersk Crewing, the Full Bench characterised a ‘proposed enterprise agreement’ as something that one of the parties wants to negotiate: ‘There need not be a developed draft, and it may simply be an idea or a series of claims…’.58

[61] Mr Allen expressed that at the meeting on 26 September 2018, he had expressed disagreement with the contents of the proposed agreement.

[62] The ‘proposed agreement’ was a document put forward by Alcoa. As referenced in Maersk it was a document, the content of which, Alcoa had negotiated and had included content arising from the Butterworth Letter. There was no evidence before me to show that the proposed agreement was a series of claims advanced by the AWU.

[63] The Act sets out that employee claim action for a proposed agreement is industrial action that is ‘organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters’. 59 Section 409(3) in addition includes that the industrial action must not be in support or, or to advance, claims to include unlawful terms in the agreement.

[64] As observed, the industrial action itself must be for the purpose of supporting or advancing ‘claims’ in relation to the agreement. It therefore follows, in my view that an evidential onus rests with the Respondent to identify those claims. If the claim or claims cannot be identified then the employer has no knowledge of what must be at issue and what it is to do to avert potential industrial action at the relevant time.

[65] In this matter there lay a substantial difficulty in identifying the claims and whether the action organised or to be taken was for the purpose of supporting or advancing them.

[66] I was taken to the proposed agreement by Mr Young and pointed to subject matter where AWU and Alcoa diverged in their view. Mr Gleeson’s evidence was that regarding the cap on redundancy he could not recall whether the cap of 70 weeks was objected to but was aware that the AWU had claimed 80 before 26 September 2018.

[67] Mr Allen’s evidence was that disagreement had been voiced at the meeting on 26 September 2018, regarding certain provisions of the proposed agreement and he referred to such provisions. However, it was evident that the AWU had not presented to this Commission written evidence of such disagreement or documented evidence of the claims it sought to advance or support by taking the industrial action being organised, threatened and taken.

[68] While the urgency of these types of matters may impact on the quality of the evidence tendered, or its volume, the Act nevertheless is plain in its words. To constitute employee claim action the industrial action must be organised or engaged in for the purpose of supporting or advancing claims, in short about permitted matters and not in respect to unlawful terms. The question arises how it can be ascertained if the claim is about a permitted matter or unlawful term if the claim or claims as the case may be, cannot be identified.

[69] The evidence that there was a disagreement about the content of the proposed agreement is disputed. Mr Gleeson provides one account that in short there were no objections raised when he presented the proposed agreement to the AWU on 26 September 2018. Mr Allen states to the contrary that disagreement was verbalised. The accounts of both witnesses were not entirely satisfactory. Mr Gleeson in his witness statement appears to have omitted the meeting on 26 September 2018, which on all accounts seems to have been a significant meeting in the scheme of things given it was the presentation of a proposed agreement that included the terms traversed in the Butterworth Letter. Mr Allen meanwhile obfuscated on an occasion, provided no material to support that his contentions that disagreement with the proposed agreement was verbalised and was on occasion off-handed response. 60

[70] However, I am appreciative that after the golf club meeting held on 26 September 2018, there had been no correspondence from the AWU placing Alcoa on notice whether the Butterworth Letter laid to rest the concerns about job security, or not, or whether there were other issues that were outstanding. That is the AWU had not advised Alcoa of the outstanding claims.

[71] Now, it was said by Mr Allen that ‘if Alcoa aren't aware of the issues that we have with the current document right now, I don't know how long it's going to take them to take those issues on board’. 61 While it may be Mr Allen’s opinion, that Alcoa should be aware of the issues with the proposed agreement, it is this Commission that is charged with determining whether it appears that industrial action would not be protected industrial action.

[72] The AWU has not brought before this Commission any correspondence or other document that had been provided or otherwise sent to Alcoa outlining outstanding claims. Further, this Commission is none the wiser as to the claims that remained outstanding and as such is not positioned to determine whether they were about, or reasonably believed to only be about, permitted matters and were not unlawful terms. Mr Allen’s purported disagreement with some of the content of the proposed agreement does not establish what the claims of the AWU were.

Not for a proper purpose

[73] It is evident that the purpose of the industrial action is a relevant consideration when determining whether industrial action is protected or unprotected. If the purpose is improper, if some persons have been probably, misled by texts, if there is a finding that the purpose behind the stoppage is something other than advancing claims then the Act directs that orders be issued. The critical issue is whether the industrial action is organised or engaged for the purpose of supporting or advancing claims in relation to the agreement. Further, it is clear the claims must not be unlawful and must be about, or reasonably believed to be about, permitted matters.

[74] First, on the evidence before me, I was unable to identify the claims that the AWU was said to be advancing or supporting in relation to the Agreement. Second, I am unpersuaded that the purpose of the industrial action was to support or advance those ‘claims’, in the event that I was incorrect and there were in fact identifiable claims.

[75] Mr Allen admitted to being the author of the First Text Message and that he distributed it to around 60 Stewards with the intent that it should be further disseminated through the crews. When asked if Mr Zoetbrood, Mr Brad Gandy, Assistant Secretary (Mr Gandy) or Mr Dan McCaig, Alumina Organiser (Mr McGaig), had authorised the sending of First Text Message, Mr Allen replied that they had not. Yet, when Mr Allen was asked to clarify who the ‘we’ referred to in Text One he replied that it was the AWU.

[76] Mr Gleeson’s evidence was that it was not suggested during the course of bargaining that Mr Allen did not have authority to at least put forward a proposal or endorse proposals made by Alcoa. 62 Further, it was evident that Mr Allen had a lead role in the bargaining.

[77] The First Text Message clearly outlined that ‘in regards to the protected action next week this is to support the Campaign across the nation’. It continued ‘we have put in a [sic] indefinite notice not because we are planning to be out for a while but so the members and crews can make the call themselves as to what they want to do’. Mr Allen makes no mention in the First Text Message of the indefinite stoppage being taken for the purpose of supporting or advancing claims in relation to the proposed agreement.

[78] At Hearing Mr Allen stated that the purpose of issuing the notice 63 when it was issued was to let Alcoa ‘know that we were still there and we were still ready to have a blue if we didn’t get a reasonable agreement’.64 When questioned about the timing of the notice65 and the nationwide union claim he replied ‘I would call it good luck, that’s my opinion’.

[79] In my view, luck is both an inadequate and illogical explanation. Mr Allen on the one hand informs AWU members that the indefinite work stoppage is to support the Campaign and yet before this Commission states it was to let Alcoa know we were ‘still there and we were still ready to have a blue’. 66 The notices of industrial action tendered as Exhibit A MCG-5 and MCG-6 read:

[T]he industrial action is taken to support or advance claims made in respect of enterprise negotiations. This notice shall be read in conjunction with any other notice served which relates to concurrent action. This notice shall expire when notified.

[80] The purpose of the industrial action on the evidence before me is apparently threefold. To support the Campaign, to let Alcoa know the AWU was still ‘there’ and to support and advance claims made in relation of the enterprise agreement negotiations. While the notices clearly set out that the industrial action is taken to support or advance claims in respect of enterprise negotiations, I do not consider that the industrial action that was to commence, or continue from 17:00hrs on 17 October 2018, was for the purpose set out in the notices. On this point I observe that Mr Zoetbrood, the signatory of the notices, was present for the duration of the Hearing, was not called to give evidence and no explanation was proffered as to why he was not called.

[81] Mr Wade submitted that in assessing the overall evidence the Commission must draw an adverse Jones v Dunkel 67 inference in respect at least of the failure to call Mr Hope, Mr Price and Mr Zoetrood. The rule in Jones v Dunkel has been described, aptly according to the Full Bench, as ‘a rule of common sense and fairness in relation to the fact finding process’.68

[82] In Mr Richard Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited, 69 the Full Bench observed that the rule in Jones v Dunkel had been considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo)70 and outlined the observations in Tamayo. Observing that the Commission was not bound by the rules of evidence, that it could inform itself in relation to a manner as it considers appropriate and that the Commission must perform its functions and exercise its powers in a manner that is ‘fair and just’, the Full Bench adopted the Tamayo observations.71 It continued that as the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. When exercising discretion concerning the rule in Jones v Dunkel the discretion is to be exercised in accordance with the dictates of common sense and fairness.72

[83] The purpose of the industrial action was clearly in dispute. The author of the notices which relevantly stated ‘[T]his industrial action is taken to support or advance claims made in respect of enterprise negotiations’ was not called, was present at the Hearing, and his absence was unexplained. Mr Zoetbrood is the Secretary of the AWU. I draw no conclusion as to whether Mr Zoetbrood had shielded himself from very important and hard questions concerning his awareness of the so called strategy behind the notice and its relationship with the Campaign. However, I consider it right to attach considerable significance to the inference that Mr Zoetbrood’s uncalled evidence would not have assisted the AWU’s case.

[84] Mr Allen’s explanation of the industrial action differs when one considers the First Text Message and his evidence at Hearing. His evidence is inconsistent and in addition is unaligned with the purpose set out in the notices. While the notices at Exhibit A1 MCG-6 predated MCG-5 save that at pg 35 of Exhibit A1 MCG-6, come 17:00hrs on 17 October 2018, I am satisfied that the industrial action that commenced, or continued on, from 17:00hrs on 17 October 2018 was taken for a purpose not contemplated by the Act.

[85] On balance, I find it probable given the timing of when the First Text Message was said to have been sent, who sent it, who it was sent to, and it’s content, that the First Text Message evinces the purpose of industrial action that was to commence, or continue on from, 17:00hrs on 17 October 2018. That purpose was to support the Campaign across the nation.

[86] Section 409 (1)(b) is clear in its terms that employee claim action for a proposed enterprise agreement is industrial action that is organised or engaged in, against an employer. The section goes on to specify that the industrial is organised by either a bargaining representative or an employee who is included in a group of employees specified in a protected ballot order. The First Text Message stated:

In regards to the protected action next week this is to support the change the rules campaign across the nation it will be supported by all other unions the MUA are closing down the ports and will be there in force as will the AMWU ETU ACTU and ALL other unions it will be a big show of solidarity and a wake up call the government they need to stop whats [sic] happening to us and others across Australia when negotiating Agreements no one should be blackmailed into acepting [sic] a sub par agreement ANYMORE

…

We don’t mind if crews or individuals choose not to take the action as whilst it is design [sic] to have a impact on ALCOA it’s not just specific to Alcoa.

[87] I have found that the First Text Message evinces the purpose of the industrial action that was to commence, commenced, or continued, from 17:00hrs on 17 October 2018. In addition, the First Text Message outlines against whom the industrial action is organised, or engaged in, against. That entity is not only Alcoa, the employer who will be covered by the Agreement. The industrial action whilst designed to have an impact on Alcoa was said to be ‘not just specific to Alcoa’.

[88] On occasion industrial action may impact third parties, whether suppliers, contractors or clients and yet in those particular circumstances the industrial may not have taken against the supplier, contractor or client, the impact is inadvertent. But, contrast to this matter, the context is such that the impact on a third party is not inadvertent, it is by way of design. The First Text Message refers to ‘a wake up call [sic] government they need to stop whats [sic] happening to us’. Having considered the evidence overall, it cannot be said that the industrial action is organised or engaged in, against an employer that will be covered by the agreement, it extended beyond that scope. For reasons already given, while the notices were directed to Alcoa the evidence is such that it is more likely than not, that the industrial action was directed against a broader audience, not just the employer.

[89] There were questions raised in cross examination that were somewhat suggestive that if an officer of the AWU, particular a Mr Zoetbrood, Mr Gandy or Mr McCaig had not authorised the sending of the First Text Message then it could not be considered to be probative evidence of the purpose for the industrial action. In the context of this matter, I disagree with this suggestion.

[90] Mr Allen held a pivotal role in the negotiation of the proposed agreement as was shown by his participation in the negotiating committee and constant attendance at bargaining meetings. He had access to an established mode of communication with the AWU membership at Alcoa and therefore his influence was far-reaching across that membership. Mr Allen was clear in his evidence that reference to ‘we’ in the context of the First Text Message, was a reference to the AWU and therefore I consider that when he spoke, whether through the written or verbal word, he was the, or one of the AWU’s mouthpiece’s in this context.

Not genuinely trying to reach agreement

[91] To be employee claim action, industrial action must, among other things, meet the common requirements set out in subdivision B. 73 Subdivision B contains ss 413 and 414. The common requirements include at s 413(3):

The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a

bargaining representative for the agreement – the bargaining

representative;

(b) if the person organising or engaging in the industrial action is an

employee who will be covered by the agreement – the bargaining

representative of the employee.

[92] The Explanatory Memorandum 74 at paragraph [1664] stated, in relation to the meaning of ‘genuinely trying’ in s 413:

The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with good faith bargaining requirements.

[93] In Total Marine Services Pty Ltd v Maritime Union of Australia 75 the Full Bench held in the context of the expression in s 443 that:

the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations.

The explanation of the concept is equally relevant in the context of s 413.

[94] The First Text Message referred to requesting specific representatives, it read:

Yesterday was a busy day for Wil and myself and thought you and your crews need some clarity on recent events. Firstly the text about bargaining representatives is to ensure the company to talk with the negotiating committee as well as the state/national office we are not cutting out of talks with state/national office. Alcoa don’t have to talk to your negotiating committee as the AWU are the only recognized [sic] bargaining representatives for AWU members. By you requesting specific representatives the company then have to recognize those representatives and negotiate with them as well as the AWU. This was discuss at the all sites committee last Thursday the 4^th of October as a idea to try to get the company to talk to us after the vote should it be rejected which is the recommendation of the committee A BIG NO….

[95] The second text message that Mr Gleeson received was one that was authored, according to Mr Allen, by Mr Price. It read:

Hi Everyone, at the Thursday meeting at the Dome Willie raised the idea of nominating the Convenors s bargaining representatives.

Given that the AWU is the only official bargaining representative and that they have made written commitments during bargaining and the hearing that they can’t retract.

Employees have the right to revoke and appoint a new bargaining representative at anytime simply by notifying the company in writing.

I think it would be a good strategy to get our members to nominate the Convenors as bargaining representatives. The company couldn’t refuse to meet with us if we were bargaining representatives.

It would certainly throw the cat amongst the pigeons and there is no way the company would want this.

Members could simply text the below to Matthew to nominate the Convenors as bargaining representatives.

Send to numbers at bottom of this text below

------------------------------------------------

-----------------------

To Alcoa of Australia (Matthew Gleeson)

As per Fair Work Act 200 Section 176 I Will Hope Hereby appoint Will Hop and Stuart Allen to be my Bargaining Representative for the agreement.

I hereby revoke the AWU as my bargaining representative.

Regards??

To….. 76 (Second Text Message)

[96] With regard to its content, the First Text Message and Second Text Message concerned revoking and appointing new bargaining representatives. 77

[97] The strategy to revoke bargaining representatives and appoint new ones was said to have been discussed at the all sites committee meeting on 4 October 2018, and Mr Allen confirmed that an official of the AWU was there. The purpose of the strategy was expressed by Mr Allen as:

The purpose was to get the company to talk to us directly, a negotiating committee, rather than talking to politicians and people who are not connected with the document in any real sense. 78

[98] Mr Gleeson gave evidence that he had received several notifications revoking the AWU as a bargaining representative and that approximately 110 former AWU members represented by the AWU had now chosen a different bargaining representative, being one of Mr Allen, Mr Price or Mr Hope. This evidence was uncontroversial with Mr Allen agreeing a number had appointed different bargaining representatives from that of the AWU. 79 Mr Allen gave evidence that he knew of no instruction countermanding the strategy to appoint a different bargaining representative.80

[99] Mr Young submitted that when expressly asked whether authorised to send the text message by Mr Zoetbrood, Mr Gandy or Mr McCaig, Mr Allen had responded ‘no’. According to Mr Young, it may be the case that the conclusion could be drawn that Mr Allen and Mr Price, being members of the negotiating team, had perhaps embarked on a folic of their own.

[100] Mr Gleeson's unchallenged evidence was that Mr Allen was probably the second-most important person in the context of the negotiating committee. And, while Mr Price did not present to Hearing or otherwise give evidence, he was the most important person in the context of the negotiations for the proposed agreement. 81 It is a sound observation I make that Mr Price and Mr Allen are leaders in the negotiations for the proposed agreement, they are the mouthpieces of the AWU, and therefore it gives lie to the suggestion that they were on some frolic of their own and they decided to hive-off.

[101] I am persuaded by Mr Wade’s submission that the hiving off was proposed in the meeting on 4 October 2018, and later reduced to writing in the First Text Message, because it was thought that to hive off could advance the AWU’s position in bargaining. However, Mr Wade is correct, in doing so the AWU overlooked the fact that this is not genuinely trying to reach agreement.

[102] Mr Allen’s evidence was that ‘whether you're a member, you're a delegate, you're an official, we are the AWU’. 82 There was no evidence before me to suggest that this was otherwise the case. The hiving off was divisive action. It was an action open to being characterised as one that at its core sought to undermine the position that the AWU had adopted in bargaining to date, and in particular the position adopted in giving the concessions referred to Exhibit A1 MCG-1. The Second Text Message referred clearly to ‘they have made written commitments during bargaining and the hearing that they can’t retract’.

[103] On the evidence before me, I have found that the representatives of the AWU who are members of the bargaining team and who represent the AWU on that bargaining team are not advancing orderly collective bargaining, have taken actions that are divisive and therefore have not been and are not genuinely trying to reach agreement. The requirements of s 413(3) have not been met given the finding made. The failure of the AWU to disavow the conduct of the AWU representatives who authored and distributed the text Exhibit A1MCG-7 and MCG-8, further leads to the conclusion that the AWU is not genuinely trying to reach agreement.

Notice non-compliant with s 414(6) of the Act

[104] The type of action that is foreshadowed in the s 414 notices sent to Alcoa by the AWU, in their capacity as bargaining representatives for their members, is described as ‘protected industrial action’.

[105] Section 409 of the Act requires that such action must meet the common requirements set out in Subdivision B of Division 2 of Part 3-3 of the Act. One such requirement is that a written notice is to be provided to an employer, and the notice must comply with s 414. Under s 414(6) the notice must specify the ‘nature’ of the action to be taken.

[106] There are several judgments and decisions that have interpreted s 414(6) including the judgment of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers 83 and the decision of the Full Bench in Telstra Corp Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia84 (Telstra).

[107] However, in the more recent decision of Esso Australia Pty Ltd v Australian Workers’ Union 85Jessop J drew attention to the importance of the purpose of the notice:

[86] The task for the court is not the conventional one of the construction of a document, with a view to understanding what the author intended. The document with which we are concerned here was a notice: its purpose was to convey information. Thus the question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the notice. Two things follow from this. First, if the notice might reasonably carry more than one denotation, I see no reason to err on the side of the giver of the notice, thereby permitting him or her to take advantage of his or her own ambiguity. The FW Act leaves it entirely to the giver of the notice to identify the “nature” of the action intended to be taken, and it should not be open to him or her to complain if the terms chosen leave scope for the addressee to see things differently from what the giver, subjectively, might have had in mind. Secondly, it would not be sufficient for the respondent to establish what its own members understood by the presently contentious expression. Even if they knew what they meant by “de-isolation of equipment”, the question is what the applicant’s management would reasonably have understood by that expression.

[87] Although I have noted above that the judgment of Wilcox and Cooper JJ in Davids Distribution does not directly provide the answer to the present question, one aspect of that judgment which is here valuable is the identification of the purpose of a notice of industrial action given under the predecessor to s 414 of the FW Act. Their Honours saw the purpose as enabling the party who would be adversely affected by the intended action to take appropriate defensive action. Their Honours recognised the importance of a defending employer, for example, having the opportunity to protect sophisticated equipment from damage. In my view, it is no less important for the affected party to know what functions, operations, etc will not be touched by the intended action. To take an example far from the facts of the present case, an employer handling perishable foodstuffs should be entitled to assume, with confidence, that its operations will not be affected beyond those notified to it under s 414 of the FW Act. Understood in this sense, the notification of industrial action has a negative, as well as a positive, dimension, each of which may be perceived as within the broad purpose of the statute.

[108] The notice of protected industrial action dated 11 October 2018 86 referred to ‘an indefinite stoppage of work’, a commencement time is provided for such action and the location of the members who are to take part in the action is stipulated.

[109] The expression used in the notice of ‘indefinite stoppages’ refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. 87 In Telstra the Full Bench formed the view that whether the notice of an indefinite stoppage complies with the requirements in s 414(6) would depend on the context in which it appears in the notice and the surrounding circumstances.88

[110] On its face, the notice sheds lights on the nature of the action to be taken. However, it is Alcoa’s contention that the notice dated 11 October 2018 does not meet the requirements of s 414(6) because the nature of the action intended to be taken is not that specified in the notice. Alcoa submitted that while the notice specifies the nature of the action, this action is not the action intended to be taken and referred the Commission to Exhibit A1 Annexure MCG-7, a text message that Mr Allen sent to the AWU Stewards at Alcoa. The First Text Message read:

We have put in a [sic] indefinite notice not because we are planning to be out for a while but so the members and crews can make the call themselves as to what they want to do. It’s much easier than having specific dates and times. It’s also a real pain for ALCOA because they won’t know who’s going, who’s stayin.

[111] In Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 89, the decision that was the subject of the appeal in Telstra, Lawler VP acknowledged that a union may issue a notice with respect to all sites of an employer, but only intend to take industrial action at a small number of sites and made the following observation:

Of course, one possibility is that a union issues such notices in bad faith: intending to take industrial action at a small number of sites and issuing a notice for a nationwide strike (and therefore which does not need to identify specific worksites) with the sole intent of making it more difficult for Telstra to take defensive measures. In such circumstances a notice issued in the terms of the current notices could not be said to specify the “intended action” as required by s.414.

[112] The First Text Message stated that the indefinite notice has been put in, not because ‘we are planning to be out for a while’. Alcoa advanced that at the time the notice was issued there was an intention not to take the action as specified in that notice. However, it does not follow that the reference to ‘not because we are planning to be out for a while’, is contrary to a stoppage that is indefinite. Indefinite means a period of time with no fixed end, unlimited or unknown. While the intent may have been that the period of the stoppage may not have been long, the First Text Message does not suggest it will not be indefinite.

Industrial action – happening, threatened, impending or probable

[113] Having found that the industrial action is unprotected attention must then be directed to whether such action is happening, or is threatened, impending or probable, or is being organised. Under s 418(1) the Commission is required to make an order of the specified type ‘if it appears to the FWC’ that industrial action that is not or would not be protected industrial action is happening, or is threatened, impending or probable, or is being organised. The Commission’s perception of the relevant matters requires the formation of an opinion or the reaching of a state of satisfaction. 90This also involves ‘to a significant degree an evaluative assessment with a degree of subjectivity’.91

[114] It is clear that a finding that industrial action is happening, or is threatened, impending or probable, or is being organised, is necessary in order for the Commission to be able to make an order under s 418(1).

[115] In light of the evidence before me, including Exhibit A1 Annexures MCG-5 and MCG-6 (notices of industrial action), the submissions of the parties, and the timing of when the Hearing commenced and concluded, I have found that unprotected industrial action had been threatened, was impending and while the Hearing was on foot, was happening.

Conclusion

Industrial action – indefinite stoppage of work 17 October

[116] Having considered the overall evidence in this case, I have found that the indefinite stoppage of work referred to in the notice of industrial action at Exhibit A1, MCG-5, that was to commence at 17:00hrs on 17 October 2018 constituted unprotected industrial action which was threatened, impending or probable and during the course of the hearing commenced and was likely to continue, which can be taken as meaning for the purpose of s 418(1) that it was ‘happening’ and ‘probable’.

[117] Further, the Commission is satisfied that such industrial action was being organised by the AWU.

Industrial action – indefinite stoppage of work before 17 October

[118] Having again considered the overall evidence in this case, I have found that the indefinite work stoppage referred to in notices of industrial action at Exhibit A1 MCG-6 (referred to in Annexure One of this decision) that commenced before 17:00hrs on 17 October 2018, but was to continue after 17:00hrs on 17 October 2018, constituted unprotected industrial action which was threatened, impending or probable, was occurring and was likely to continue, which can be taken as meaning for the purpose of s 418(1) that it was ‘happening’ and ‘probable’.

[119] Further, the Commission is satisfied that such industrial action was being organised by the AWU.

Period of operation of the Order

[120] Alcoa in its application requested that the Order sought would remain in force indefinitely.

[121] In the Full Bench decision of United Voice v Foster’s Australia Ltd[2014] FWCFB 4104 (Foster’s Australia), it was held that the period of a s 418 order must:

therefore (leaving aside any specific provisions authorised by s.418(4)) be directed to the purpose of ensuring that the relevant industrial action - that is, the industrial action which appears to the Commission to be occurring, and/or threatened, impending or probable, and/or being organised - stop, not occur and/or not be organised, as the case may be. Such an order may contain provisions that seek to achieve that purpose in direct terms, and additional terms that are necessary for, incidental to or consequential upon the exercise of power for that purpose. 92

[122] The Full Bench in Foster’s Australia continued:

Our analysis in this respect should not be taken as suggesting that an order under s.418(1) with a lengthy period of operation can never be made. However, the findings concerning the existence, future occurrence and/or organisation of relevant industrial action must be such that the period of operation serves the purpose of ensuring that such industrial action stops, does not occur and/or is not organised. For example, if the Commission finds that the relevant industrial action is threatened, impending and probable on a continuing and long term basis, that may form the foundation upon which the order required to be made under s.418(1) is given a lengthy period of operation. 93

[123] Having found that the purpose of the industrial action was not to support or advance claims in relation to the proposed agreement, and taking into account all other evidence before me including that the industrial action was to support the Campaign across the nation, I am of the view that an order under s 418 should extend to the period set out in the Order 94 published on 17 October 2018. It is observed that a Campaign usually refers to a series of operations perhaps not limited to a day, or two. A campaign may extend past days to weeks, perhaps even past a year. Therefore, I consider that the period of the stoppage is appropriate.

DEPUTY PRESIDENT

Appearances:

Mr R Wade, of Ashurst Australia, on behalf of the Applicant.

Mr C Young, Industrial Officer at the Australia Workers’ Union, for the Respondent.

Hearing details:

2018.

October 17.

Printed by authority of the Commonwealth Government Printer

Annexure One

4.1 For the purposes of this Order, industrial action means any action of the f ollowing kinds:

(a) an indefinite stoppage of work from 17:00 on Wednesday 17 October 2018 and ongoing until notified, by all members at all sites including Bunbury Port Terminal, Exploration Drillers, Huntly, Willowdale, Kwinana refinery, Pinjarra refinery and Wagerup refinery (All Sites) (17 October All Sites Indefinite Stoppage); and

(b) all indefinite work stoppages that commenced prior to 17:00 on Wednesday 17 October 2018 and ongoing until notified, by members specified at the locations specified (Pre-17 October Indefinite Stoppages), set out in the table below:

NIA	DATE ISSUED	ACTION	TIME AND DATE OF ACTION	LOCATION	BALLOT QUESTION	EXPIRY / EXCLUSIONS	CANCELLATION OF NIA
NIA3	9 February 2018	An indefinite stoppage of work taken only by Andy Hacking – that is, only Andy Hacking will not attend for work.	From 0600 on 16 February 2018. Ongoing until notified.	Kwinana refinery	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 350 BPT1	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Bunbury Port Terminal	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 351 ED1	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Exploration Drillers	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 352 H10	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Huntly	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 353 KW10	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Kwinana	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 354 PJ10	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Pinjarra	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 355 W14	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Willowdale	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 356 WG10	2 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 1100 on 8 August 2018. Ongoing until notified.	Wagerup	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 357 NIA Alcoa All Sites 2	13 August 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 0000 on 17 August 2018. Ongoing until notified.	Allsites: Bunbury Port Terminal, Exploration Drillers, Huntly, Kwinana, Pinjarra, Wagerup and Willowdale	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 359 NIA Alcoa All Sites 4	10 September 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 0000 on 14 September 2018. Ongoing until notified.	Allsites: Bunbury Port Terminal, Exploration Drillers, Huntly, Kwinana, Pinjarra, Wagerup and Willowdale	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A
NIA 362 NIA Alcoa All Sites 7	11 October 2018	An indefinite stoppage of work– that is, members will not attend for work.	From 17:00 on 17 October 2018. Ongoing until notified.	Allsites: Bunbury Port Terminal, Exploration Drillers, Huntly, Kwinana, Pinjarra, Wagerup and Willowdale	Q2: "Indefinite stoppages of work?"	Notice will expire when notified.	N/A

1 PR701541.

2 Ibid.

3 See Annexure One.

4 Witness Statement of Matthew Craig Gleeson (Gleeson Statement) [10].

5 Gleeson Statement [11].

6 Transcript PN49 and PN51.

7 Gleeson Statement [11].

8 Ibid.

9 Transcript PN626.

10 Gleeson Statement [13].

11 Ibid.

12 Ibid [14].

13 Ibid, Annexure MCG-2.

14 Gleeson Statement [15].

15 Ibid.

16 Ibid [16].

17 Gleeson Statement.

18 Transcript PN69.

19 Transcript PN72-PN74.

20 Transcript PN74.

21 Transcript PN75.

22 Transcript PN77.

23 Transcript PN183-PN184.

24 Transcript PN185-PN186.

25 Transcript PN453-PN461.

26 Gleeson Statement [17].

27 Ibid.

28 Transcript PN469, PN473, PN474, PN475, PN476, PN480, and PN488.

29 Transcript PN493.

30 Gleeson Statement [23].

31 Gleeson Statement, Annexure MCG-7.

32 Transcript PN468.

33 Transcript PN470-PN473.

34 Transcript PN543.

35 Transcript PN543- 545.

36 Transcript PN545.

37 Gleeson Statement, Annexure MCG-8.

38 Ibid.

39 Transcript PN493.

40 Transcript PN606-PN608.

41 Transcript PN611.

42 Transcript PN32.

43 Transcript PN33.

44 Transcript PN34.

45 [2018] FWC 2745 [62].

46 Ibid [62]

47 Gleeson Statement [14].

48 Ibid [15].

49 Transcript PN77.

50 Gleeson Statement [16].

51 Transcript PN279-PN280.

52 Transcript PN453-PN461.

53 Transcript PN378-PN392.

54 [2016] FWCFB 1894.

55 [2014] FWCFB 1317.

56 [2016] FWCFB 1894 [13].

57 [2014] FWCFB 2587.

58 Ibid [34].

59 Section 409 of the Act.

60 Transcript PN461–PN357.

61 Transcript PN394.

62 Transcript PN176.

63 Gleeson Statement, Annexure MCG-6 p35.

64 Transcript PN357.

65 Gleeson Statement, Annexure MCG-6 p35.

66 Transcript PN357.

67 (1959) 101 CLR 298.

68 [2018] FWCFB 3989 [102].

69 [2018] FWCFB 3989.

70 Print P1859, 4 November 1997 per Ross VP, Drake DP and Cargill C.

71 [2018] FWCFB 3989 [103].

72 Ibid [105].

73 Section 409(1)(c) of the Act.

74 Fair Work Amendment Bill 2013, Explanatory Memorandum.

75 [2009] FWAFB 368.

76 Gleeson Statement, Annexure MCG-8

77 Ibid.

78 Transcript PN493.

79 Transcript PN606-PN608.

80 Transcript PN611.

81 Transcript PN51.

82 Transcript PN546.

83 [1999] 165 ALR 550.

84 [2009] FWAFB 1698.

85 (2017) 350 ALR 404.

86 Gleeson Statement, Annexure MCG-5.

87 Telstra Corp Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 1698.

88 Ibid [14].

89 [2009] FWA 1599 [20].

90 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736 [7].

91 Ibid [11].

92 United Voice v Foster’s Australia Ltd[2014] FWCFB 4104 [38].

93 Ibid [41].

94 PR701541.

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Citations

Alcoa of Australia Limited T/A Alcoa World Alumina Australia v Australian Workers' Union, The [2018] FWC 6448

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

0

United Voice v Foster's Australia Limited [2014] FWCFB 4104

DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 2745

Maritime Union of Australia v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894