Australian Workers' Union, The v Alcoa of Australia Limited
[2024] FWC 3091
•23 DECEMBER 2024
[2024] FWC 3091
The attached document replaces the document previously issued with the above code on 23 December 2024.
Numbering of subheadings under heading 2 corrected.
Associate to Deputy President Beaumont
Dated 24 December 2024
| [2024] FWC 3091 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Alcoa Of Australia Limited
(C2024/5153)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 23 DECEMBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Issue
The Australian Workers’ Union (AWU) has referred to the Commission a dispute for determination under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure at clause 25 of the Alcoa of Australia Limited WA Operations AWU Enterprise Agreement 2023 (the 2023 Agreement).[1]
The dispute focuses on two related issues, which the AWU and Alcoa of Australia Limited (Alcoa) have framed as two questions to be arbitrated:
(a) Can Alcoa direct an area process specialist (APS) to undertake WHS risk management units for Statutory Supervisor and an applicable legislation examination for Statutory Supervisors pursuant to the terms of the 2023 Agreement and the APS Job Description?
(b) Can Alcoa require an APS to undertake the role of Statutory Supervisor as contemplated by Schedule 26 of the Work Health and Safety (Mines) Regulations 2022 (WA) (the Regulations), having regard to the terms of the 2023 Agreement and the APS Job Description.
The 2023 Agreement was approved on 17 November 2023 and reaches its nominal expiry date on 17 May 2026. The AWU is covered by the 2023 Agreement because, as noted in the approval decision ([2023] FWCA 3852), they were bargaining representatives for the 2023 Agreement and gave notice to the Commission under s 183 of the Act that they wanted to be covered by it. The dispute resolution procedure applies to ‘a dispute’ that relates to a matter arising under the 2023 Agreement or the National Employment Standards. Clause 25 states that, if the matter is not resolved, the matter may be referred to the Commission for conciliation and arbitration if necessary. As conciliation has not resolved the dispute and the AWU seeks to further its application, in the absence of express words limiting arbitral power to circumstances where parties are required to consent to arbitration, I am satisfied that the Commission is authorised to determine the present dispute.
It is uncontroversial that the 2023 Agreement covers and applies to Alcoa, and to employees employed by Alcoa at its Western Australian Operations who carry out the work in the Job Descriptions set out in the table at Appendix 8 of the 2023 Agreement.
However, whilst the 2023 Agreement includes the Job Description for the role of APS (JG-13) as listed within Appendix 8 of the 2023 Agreement, it provides no detail of the duties and responsibilities of the role.
The APS Job Description that currently applies to APS employees is as set out in Appendix 10 - Job Descriptions at page 119 of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (the 2014 Agreement).[2]
The APS Job Description is contained in Alcoa’s controlled document system as required by clause 13.1 of the 2023 Agreement, which is the same as the APS Job Description set out in the 2014 Agreement.
Fairly recently in Western Australia, the Regulations introduced a requirement that ‘Statutory Supervisors’ be appointed at certain sites for certain mines.[3] Pursuant to the Regulations, Alcoa is required to have appointed Statutory Supervisors for its operations and put them in place by March 2026. It is said that the Regulations require that a Statutory Supervisor be present in an appointed place (such as the Operating Centres (OCs) of Alcoa’s Wagerup Alumina Refinery (Wagerup Refinery)), at all times.
Statutory Supervisors have the following functions at the mine to which they are appointed (as per Schedule 26 cl 3(3) of the Regulations):
a) allocating tasks to the worker for that worker to carry out at the appointed place;
b) supervising and controlling works and other persons at the appointed place;
c) if necessary, inspecting areas where workers and other persons travel to the appointed place for risks or hazards to those persons;
d) taking steps to ensure, so far as reasonably practicable, that workers and other persons are not exposed to risks or hazards in the appointed place; and
e) if the supervisor is being replaced by another supervisor – providing written reports to the incoming supervisor under Regulation 630.
A person is eligible to be appointed as a Statutory Supervisor for a place at a mine if the person (as per Schedule 26 cl 3(4) of the Regulations): (a) has worked for at least two years as a supervisor or work in a similar operation or industry that the mine is engaged in; (b) successfully completes an approved WHS risk management unit for Statutory Supervisors; and (c) passes an applicable legislation examination for Statutory Supervisors.
Alcoa has commenced Statutory Supervisor training to ‘staff supervisory personnel’, which is said to accord with the requirements of Schedule 26 clause 3(4) of the Regulations. ‘Staff’ are those employees who are not covered by an enterprise agreement.
On or about 22 May 2024, Alcoa met with Mr Brandon Hill, AWU Convenor for the Wagerup Refinery, and advised Mr Hill that the Respondent intended to provide Statutory Supervisor training to APS employees.
In or around early June 2024, Alcoa instructed APS employees to undertake Statutory Supervisor training so that Alcoa could appoint APS employees to the position of Statutory Supervisor pursuant to Schedule 26 of the Regulations. It is noted that the Alcoa did not seek to alter the Job Description or job grade of the APS position. By late May or early June 2024, the AWU put into dispute the requirement for APS employees to complete Statutory Supervisor training and hold the responsibility of a Statutory Supervisor.
For the following reasons, I have concluded that the AWU is correct with its answers to the questions posed. It follows that the answers to questions (a) and (b) are ‘no’.
Background
The background to this matter has been drawn from the evidence provided by three witnesses for the AWU: (a) Mr Robbie Cottingham, APS, (b) Mr Darryn Michael Beresford, APS; and (c) Mr Michael Lally, Area Process Control Board Operator. On behalf of Alcoa, Ms Courtney Ann Alexander, Human Resources Manager, and Mr James Leslie Wilson, Milling and Raw Materials Manager, gave evidence.
The operations of the Wagerup Refinery consist of complex processes to produce alumina from bauxite which is then supplied to internal and external customers of Alcoa. It is a 24-hour refinery that operates seven days a week.
At each of Alcoa’s Western Australian refineries, the production of alumina is supported by:
a) production personnel covered by the 2023 Agreement;
b) mechanical, electrical and power generation workgroups covered by other enterprise agreements;
c) supervisors (previously known as group leaders or foreman);
d) management personnel; and
e) personnel employed to provide support services including personnel required to contribute to administration, safety management and training.
2.1 2023 Agreement and 2014 Agreement
The 2023 Agreement covers production employees working at Alcoa’s alumina refineries, mines and port operations and covers employees employed in the role of APS.
Clause 4 of the 2023 Agreement sets out the general obligations of the parties:
Clause 4 GENERAL OBLIGATIONS
The Parties undertake (as applicable) to:
(a)accept and co-operate with the introduction of new plant and equipment;
(b)organise work in a fully flexible manner within the Company’s WA Operations and in accordance with this Agreement.
(c)undertake any jobs or duties, subject to their level of skill, knowledge and competence and any licensing requirements, without demarcation; and
(d)maximise continuity of production and supply.
In respect of the work employees are required to perform, clause 12 of the 2023 Agreement sets out the following:
Clause 12 SCOPE OF WORK
Employees will perform work in any area of the site that the Company may reasonably require having regard to their skills and their job description and all the job descriptions below. Consistent with this, Employees will competently and safely undertake any work and utilise tools or equipment for which they have the necessary skill, knowledge and training, provided any licensing and other statutory requirements are met. The Company agrees that work directions will not be used to undermine job descriptions and if ongoing additional duties are required an alteration will be initiated in accordance with clause 13.2.
The 2023 Agreement provides at clause 13.1 that all job descriptions under the 2023 Agreement are listed in Appendix 8 and contained within the company’s-controlled document system. The 2023 Agreement permits the alteration of job descriptions referred to in Appendix 8, subject to compliance with clause 13.2, and allows for the introduction of new job descriptions in accordance with clause 13.3 of the 2023 Agreement.
Clause 14 of the 2023 Agreement addresses skill acquisition and training of the employee workforce stating:
Clause 14 SKILL ACQUISITION AND TRAINING
14.1 The Parties are committed to the continual development and implementation of structured training programs. This is consistent with the requirement for Employees to acquire and utilise broader and more advanced skills so as to undertake the expanded range of functions associated with the whole job concept. This involves equipping Employees with the skills necessary to undertake any tasks associated with the Employees’ operating area, provided it is safe, efficient, legal and logical to do so.
14.2 All Employees will be given the opportunity to participate in training programs and,
through the acquisition and utilisation of skills, to seek progression within the pay
structure. Such training will be subject to the Company’s current and future operational
needs, the availability of training resources, plant safety considerations and the skills
profile and desires of Employees.14.3 The training programs are provided by the Company and conducted through a combination of external, formal in-house, and structured on-the-job training. It is intended that training programs confirm with emerging national standards.
14.4 With the exception of some external courses, all training and assessments will be conducted by Supervisors, Trainers, Qualified Assessors and other subject matter experts as appropriate.
14.5 An Employee may be required to undertake training or provide training support where competent to do so.
Appendix 8 of the 2023 Agreement sets out job titles, sites and job grades in the following terms:
APPENDIX 8 – JOB DESCRIPTION – TITLE/SITE PAY GRADE
…
2003 Agreement Job Descriptions
JOB TITLE SITE JOB GRADE Training & Development Co-Ordinator Kwinana & Wagerup JG 13 Area Process Specialist Kwinana & Wagerup JG 13 Area Process Controller Kwinana & Wagerup JG 12 Area Process Controller (2010) Kwinana & Wagerup JG 12.5 Senior Area Process Operator (Relief) Kwinana & Wagerup JG 12 Senior Process Controller Kwinana & Wagerup JG 12 Senior Area Process Operator Kwinana & Wagerup JG 11.5 Process Controller Kwinana & Wagerup JG 11 Area Process Operator Kwinana & Wagerup JG 11 Process Operator Kwinana & Wagerup JG 10.5 Refinery Operator Kwinana & Wagerup JG 10.0 Senior Equipment Carer Kwinana & Wagerup JG 11.5 Area Equipment Carer Kwinana & Wagerup JG 11 Equipment Carer Kwinana & Wagerup JG 10.5
At page 119 of the 2014 Agreement at Appendix 10, clause 10 3(b)(iii) provides the Job Description for the APS role as follows:
AREA PROCESS SPECIALISTS
1.IMPACT
The Area Process Specialist has a hands-on role within the shift process team that achieves the operating plan. They help optimise the output of the process and continually improve its capability through ABS problem solving and improving standardised work methods.
2.ACCOUNTABILITY STATEMENTS
(a) Problem Solving
·First point of call for every problem encountered by the process team in the application of the standardised work.
·Operates the problem-solving process (e.g., criteria, logs , boards, priorities).
·Helps team members eliminate problems to root cause, engaging operators who raised the problems and leading the scientific problem-solving process.
·Ensures that permanent fixes to process problems are part of the planning process.
·Accesses support via the Group Leader and escalates problems that cannot be solved permanently by the team or are outside the team’s control.
·Provides operating advice to team members to achieve product specifications and cycle times.
(b) Standardised Work
·Develops and improves the standardised work in conjunction with team members.
·Develop and improves the standardised Equipment Isolation sheets for themselves and team members.
·Ensure standardised work is being followed and is successful.
·Maintains the visual workplace and provides feedback on work results.
·Relieves for other positions in the team and provides supplementary work effort for the team in the execution of standardised work to ensure output parameters are met.
(c) Improvements
·Works on improvements to the workplace & work methods using ABS tools.
·Harnesses all improvement opportunities and ideas coming from the team.
·Operates the waste elimination system for the team.
·Leads improvement opportunities on behalf of the team.
(d) Training
·Teaches and coaches team members in problem identification and solving ABS tools.
·Teaches, assesses and coaches operators in the application of standardized work in the performance of all tasks.
·Facilitates the training of new work team members.
·Maintains the work element and training needs analysis for work team members.
(e) Team Support
·Accesses and updates information required for team success.
·Orders operational tools, materials and equipment for the Team.
·Prepares Operating Centre equipment ready to maintain or service and completes safety tag and lock up to and including WA Operations Level 2c and 3a for their own and other work groups.
·Checks and audits the application of tagging to sustain levels of competence and confidence in the system.
·May be appointed to act as Relief Group Leader for the area.
(f) Safety Leadership
·Supports the safety objectives of the Operating Centre by completing routine area safety checks and ensuring that team members are able to complete their work safely.
·Escalates problems where work is not able to be completed safety.
3.CRITICAL CHALLENGES
· Uninterrupted levelled production, on a daily basis, and setting the next shifts up for success.
· Advice and decisions needed as a result of variation in the operations, that minimise the losses and reduce waste.
· Using knowledge to solve problems with the team and to continually improve the standardised work to improve the teams [sic] effectiveness.
4.ROLE – AREA PROCESS SPECIALIST
· Maintaining and improving standardised work for all shifts.
· Teaching and training of their team members in the Standardised work and problem solving.
· Rapidly solving problems on their shift.
· Reducing process variability for their shift and setting up the next shift for success.
2.2 Witnesses for the AWU
2.2.1 Mr Cottingham
Mr Cottingham works in OC-3 at the Wagerup Refinery as a permanent APS JG-13. OC-3 has five production crews. Each crew has a production supervisor. Whilst the production crews are made up of employees with job grades JG-10 through to JG-13, there is only one APS.
Mr Cottingham has worked for Alcoa for 20 years, including at the time when the JG-13 role was first introduced. He said that an APS employee is experienced in all areas of OC-3 production, including tagging to level 3 (confined space entry), which is the highest tagging level. According to Mr Cottingham, most of his time as an APS employee is spent on technical work, in particular:
a) tagging;
b) utilising his knowledge of control panels;
c) problem solving;
d) training crew members on using the equipment; and
e) addressing any safety concerns that the APS notices (noting that it is everyone’s responsibility to raise safety issues as they see them).
Mr Cottingham acknowledged that he performed a full-crew handover at the start and end of a shift, attended toolbox meetings around the start of his shift and covered some of the supervisor’s duties when the supervisor was absent.
Regarding the duties an APS employee covered when the production supervisor was absent, Mr Cottingham listed the following:
a) hand over with outgoing and incoming supervisors or APS employees;
b) meetings with management, to understand the day-to-day business needs, which the APS employee then relays back to the crew. From this information the crew, with input from the area process controller (APC) (JG-12.5), prioritises work for the day;
c) conference calls with management at the start of back shifts;
d) updating business drivers. The business drivers contain information on anything that has an impact on flow and yield of the refinery. This is usually equipment related, such as equipment breakdown; and
e) raising work orders.
Mr Cottingham said that that the topics discussed with management and relayed to the crew included environmental health and safety incidents and impacts, the high-risk task(s) for the shift, and flow levels - that is the impact that flow levels could have on production needs and how to correct them. Mr Cottingham clarified that when undertaking supervisory duties in this respect, it was not a supervisory role but rather a conduit between management and crew. The role did not include the management of people.
Mr Cottingham identified supervisory duties that the APS employees did not perform when covering for a supervisor. These duties included:
a) undertaking the role of Alcoa Responsible Person (ARP);
b) raising purchase orders for contractors;
c) requesting contractor services;
d) managing contractors;
e) wider problem-solving activities and actions;
f) life activities (a statutory supervisor responsibility – the statutory supervisor fills in a document confirming they are responsible for people on the shift. At the moment a shift would be run without anyone signing off this document if the supervisor were away) and month targets;
g) managing leave; and
h) managing crew members.
In response to Alcoa’s materials, Mr Cottingham considered it necessary to provide clarification in respect of what he viewed as a misconception about the amount of supervision and leadership APS employees engaged in. Amongst other matters, he noted the following in respect of his duties as an APS employee:
a) he did not manage people, direct who did what work, or direct employees in the performance of their work (unless asked for his technical expertise);
b) he did not conduct an active assessment of the safety of the site or the other workers;
c) whilst he provided training to other people in his crew, this was not unique to APS employees;
d) whilst he had some responsibility to ensure members of the crew adhered to the appropriate safety standards this was not unique to APS employees;
e) he did not conduct any specific checks of the area for safety before starting the shift;
f) he did not have responsibility to actively check that everything is in order;
g) during toolbox meetings or pre-start meetings the high priority tasks were picked and then as a team the crew collaborated to pick jobs within its skill sets;
h) he did not create training plans although as an APS he did assist JG-12.5s with assessing completion of training plans by other employees, however, the JG-1.5 were the main assessor; and
i) whilst he had undertaken extensive training, all training done had related to technical aspects, with nothing in relation to how to supervise or manage.
2.2.2 Mr Beresford
Mr Beresford has been employed at Alcoa for 16 years. In that time, he had held various positions, including that of an APS employee, since February 2020. Mr Beresford currently works at OC-1 at the Wagerup Refinery. He notes there are five production shifts within OC-1. Mr Beresford said that his production shift has five crew members, including himself.
After securing the role of an APS, Mr Beresford undertook ARP training. A superintendent had recommended that if Mr Beresford wanted to be an APS, he should undertake the ARP training. Mr Beresford participated in the training after he secured the permanent APS role.
Mr Beresford explained that ARP training allows a person to sign an ‘Authority to Proceed’ (ATP) form for contractors coming onto the site. Mr Beresford said that the ARP training involved reading and signing the document which described the duties of an ARP in relation to contractors, namely: (a) discussing the job at the job front; (b) ensuring the requirements of the job were met; and (c) signing the contractor’s ATP form every four hours. Mr Beresford clarified that 12 months prior he had been told by another APS employee that the current Milling Manager had said that APS employees should not sign ATP forms.
Mr Beresford explained that as an APS, on shift he would:
a) with the rest of the crew, receive the hand over from the outgoing shift;
b) attend and participate in the crew toolbox meeting, in which the jobs for the shift were discussed and a decision made on high-risk tasks;
c) attend the Milling ABS meeting;
d) attend the Digestion ABS meeting;
e) conduct any tagging for maintenance (as a senior tagger);
f) coach crew in operations per the standardised work instructions;
g) problem solve any issues that had arisen, with the assistance of engineers; and
h) prepare the handover with crew to handover the oncoming shift.
Mr Beresford noted that he did not ‘direct’ as the jobs required were listed and ‘the guys do what they need to.’[4] However, where there was a complicated job, he might direct people in respect of explaining how the job should be divided into specific parts.
As to supervisory duties of an APS employee, Mr Beresford gave evidence that sometimes there was an expectation to cover the group leader position. The ‘group leader’ nomenclature was synonymous with that of ‘supervisor’, and included the following duties:
a) engagement in handovers between the outgoing supervisor and then the incoming supervisor, and completion of a report outlining anything that happened during the night – including any process issues that had arisen; and
b) holding a toolbox meeting with the crew, which included discussing jobs for the night. The jobs were put on the board and the crew would go off and do their jobs, whilst high-risk tasks were decided and delegated by the whole crew.
Mr Beresford said that when he covered for a supervisor, he did not have anything extra to do with other crews, he did not sign ATPs, he did not deal with manning or check on whether the crew clocked in or out, or whether they were sick and not on shift. He further clarified that rostering duties were redirected to the area superintendent, ATPs were signed by the equipment care supervisor and safety audits were conducted by other supervisors and superintendents.
2.2.3 Mr Lally
Mr Lally has been employed by Alcoa for around 26 years. For the entirety of his employment, he has worked at the Wagerup Refinery, and has been based in OC-4, Calcination. Mr Lally was first employed as a Basic Refinery Operator (JG-1), then worked his way up to Control Board Relief (JG-11) and then Senior Area Process Operator (JG-11.5). Mr Lally said that there was no JG-13 during this time, with the JG-12 (APC) being the highest-level role covered by the enterprise agreement. Mr Lally observed that the APC role was now a JG-12.5.
Mr Lally gave evidence that around 2003 the APS (JG-13) role was created, and he obtained one of the first APS jobs. In August 2016, Mr Lally said he downgraded to a JG-12, and then in 2018 became a JG-12.5 Area Process Control Board Operator.
Mr Lally gave evidence as to what he was told when interviewing for the position of the APS and noted that at that time there was no mention of being a relief supervisor or job cover for the supervisor. Mr Lally further noted that in the 13 years he was an APS (2003 – 2016), he never did relief cover for supervisors or covered for supervisors when they were away. Mr Lally said that it appeared that the APS role had grown over time because there was now some expectation of relieving the supervisor, which was not present when he started in the role.
According to Mr Lally when an APS employee acted as a relief supervisor, they ensure they have the information they need to get the required work done on the shift, but they do not sign forms such as the ATP or undertake the role as an ARP. However, a supervisor does sign ATP forms.
Mr Lally clarified that an APS employee would allocate tasks within their own crew only, but a supervisor would go through a contractor’s documentation and discuss the tasks with them and sign off if safe, in addition to being responsible for everyone in the OC, including other workgroups/crews, and sign ATP forms for them.
In respect of the duties of a supervisor, a summary of Mr Lally’s evidence on this point follows:
a) the supervisor role is not covered by an enterprise agreement because it is a higher-level role that includes managing people;
b) whilst an APS employee may have more technical knowledge than a supervisor, they are not paid to be and are not ‘man management’ or ‘replacement for foreman’;
c) supervisors gather information from the APS employee as well as other job roles, to then form their own judgment and expertise to decide if something is safe to do;
d) supervisors have authority to direct, even if an APS employee does not agree with the solution proffered by the supervisor;
e) an APS employee is responsible for their one crew, in contrast to supervisors who are responsible for the entire workgroup (anyone in their production area), which could include external contractors, maintenance and production crews;
f) an APS employee responds to a technical question or a request for help, but ultimately the supervisor signs off and is responsible;
g) an APS employee would show other workgroups where items are for example, like a pump, but they would not sign off that it is safe to work on it – a supervisor would;
h) a supervisor directs a contractor to change their work, but an APS employee would not; and
i) an APS does not supervise other workgroups or the workflow for other workgroups.
2.3 Witnesses for Alcoa
2.3.1 Ms Alexander
Ms Alexander gave evidence that there were 20 APS employees working within the OCs at Wagerup Refinery, comprising of:
a) five employees in the Milling and Raw Materials OC (OC-1);
b) six employees in the Clarification OC (OC-2);
c) four employees in the Precipitation OC (OC-3); and
d) five employees in the Calcination OC (OC-4).
Ms Alexander said that employees at the Wagerup Refinery have the same responsibilities across all OCs, although each OC had responsibility for different stages of the refining process with specific plant and equipment in place for that purpose.
Ms Alexander said that as part of her role, she participated in planning for the introduction of training at the Wagerup Refinery to facilitate those APS employees being appointed as Statutory Supervisors for the purposes of Schedule 26, clause 3 of the Regulations.
Ms Alexandar described the responsibilities of a Statutory Supervisor in the following terms:
a) allocate tasks to workers to carry out at the appointed place, which, in the case of Alcoa’s Wagerup Refinery, will be the OC in which the employee works;
b) supervise and control workers and other persons at the appointed place, which means that the appointed Statutory Supervisor must supervise the workplace and provide direction in maintaining a safe working area in the OC through field verification, meaning ‘walk throughs’ of the OC;
c) if necessary, inspect areas where workers and other persons travel to the appointed place for risks or hazards to those person – namely a requirement to undertake inspections of the OC and undertake briefings with employees prior to the commencement of work;
d) take steps to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks or hazards in the appointed place, which involves ensuring that job safety analysis work of the OC is complete prior to the performance of work, and safe working instructions are in place for that work. It also requires that Statutory Supervisors need to record any safety incidents of the OC and assist with investigations should that be required;
e) if the Statutory Supervisor is being replaced by another Statutory Supervisor, then a handover is provided to the replacement.
Ms Alexander noted that Alcoa had engaged an external training provider to facilitate a government approved mandatory Work, Health and Safety Course (WHS Course) to Alcoa employees who are to be appointed to the position of Statutory Supervisor.
Ms Alexander said that the WHS Course related to general work, health and safety obligations and was delivered over three consecutive days and covered two WHS units, namely:
a) BSBWHS411 – implement and monitor WHS policies, procedures and programs; and
b) RIIRIA402E – carry out the risk management process.
Ms Alexander further referred to Alcoa providing for employees non-mandatory training in the form of a unit called ‘WHS Statutory Responsibilities for Mining Supervisors’ and a pre-exam study program called ‘DMIRS Exam Prep Course. DMIRS Law Exam – Schedule 26’.
Following the completion of the WHS Course, Alcoa employees were required to complete an open book examination to be qualified for appointment as a Statutory Supervisor.
2.3.2 Mr Wilson
Mr Wilson has worked at Alcoa for 36 years and commenced as the Milling and Raw Materials Manager for OC-1 in September 2023. In that role he was accountable for the overall operations of OC-1, including the oversight of milling and bauxite stockpiles for the production of alumina, the completion of planned and unplanned equipment maintenance and the overall management of employees and contractors working in OC-1.
Mr Wilson said that his role extended to ensuring the safety of all employees that work in the OC, noting that he was responsible for a total of 43 employees.
In 2002, Mr Wilson held the position of Alcoa Business System (ABS) Supervisor in Digestion (which is also in OC-1). He worked with a range of Alcoa stakeholders to review and update standardised work methods to improve Alcoa systems of work.
In 2003, Mr Wilson worked with human resources personnel in relation to a proposal to introduce a new role within Alcoa’s Western Australian Alumina refineries, namely the role of APS. Mr Wilson said that the key reasons for establishing the role within the business were to:
a) optimise employee utilisation for production processes by providing for group leaders, which are now known as supervisors, to work only day shifts instead of night shifts as had been the case to that time, and to have night shifts staffed by production personnel to maintain OC operations; and
b) introduce a new position within the production team that would allow the appointment of new employees to a higher job grade who would have leadership responsibilities on night shifts and act as relief group leaders.
Mr Wilson said that the position description implemented for the APS role was included as a ‘Standard Operator Job Description’ in the Alcoa World Alumina Australia, WA Operations – AWU Certified Agreement 2003 (2003 Agreement).[5] Mr Wilson added, that to the best of his knowledge, the position description for the APS role had remained unchanged since its introduction.
In respect of the responsibilities assigned to the APS role, Mr Wilson identified the following:
a) problem solving, which required APS employees to solve problems encountered by the process team in the application of standardised work, providing operating advice to team members regarding problems, and to escalate problems that could not be solved;
b) ensure standardised work practices were applied by maintaining a visual workplace, providing specific feedback to team members regarding work results and providing relief for other positions in the team to ensure output parameters were met;
c) harnessing improvement ideas from the process team and providing leadership in improvement opportunities;
d) teaching and coaching team members in problem identification and problem solving using ABS tools, facilitating training of new team members in the application of standardised work, maintaining work elements and undertaking training needs analysis for team members;
e) acting as relief supervisor for the area when required; and
f) supporting and leading the safety objectives of the OC by completing routine area safety checks, undertaking complex tagging processes pursuant to established procedures and by ensuring that team members were able to complete their work safely in the area.
Mr Wilson added:
a) the APS role was a technical role that required expert knowledge of the relevant OC, including the potential safety risks that may occur in the OC;
b) the APS role was the most senior production classification in the OC, with one APS position allocated on each shift panel, in addition to a relief APS who was able to provide cover for APS absences arising from APS employees taking leave or an APS acting as a relief supervisor;
c) the APS role requires a very high level of technical proficiency as it is required to complete tagging procedures across the OC, including complex tagging, and provide leadership in the critical areas of the role relating to problem solving for all team members, and developing and improving standardised work;
d) the APS role is required to understand standardised methods of work for the OC and be able to use this knowledge to advise and train lower-level operators;
e) the APS role has authority and responsibility to stop team members and other people in the area from commencing work and entering the OC area if a safety issue is identified;
f) a qualified APS would have completed most, if not all, of the training modules applicable to Job Grades 10 to 13 as reflected in the Alcoa Learning Management System;
g) the APS role is required to have a detailed technical knowledge of the OC because employees occupying the role are expected to undertake it with a high degree of autonomy in the performance of their day-to-day tasks;
h) all persons in APS roles have at least five years of experience in their respective OC at the Wagerup Refinery.
Mr Wilson noted that because of his involvement in the development of the APS role, he was aware that upon introduction of the role, supervisors were only rostered during day shifts, working a 10.3-hour shift roster, and that APS employees rostered during night shifts were required to act as the relief supervisor.
In 2017, changes were made to introduce supervisors for all shifts, which meant that APS employees were no longer routinely required to act as relief supervisor during night shifts. However, according to Mr Wilson, the APS Job Description and responsibilities remained unchanged, and the APS employees were still required to act as a relief supervisor when a supervisor was on planned or unplanned leave.
Mr Wilson said that a higher duties allowance was payable to APS employees when acting as a relief supervisor for more than two calendar weeks.
Insofar as the supervisor role is concerned, Mr Wilson gave evidence about the responsibilities of a day shift supervisor, noting that the responsibilities extended to the following:
a) completing pre-start meetings - involving the allocation of tasks and discussing team member reports of relevant issues;
b) attending site process meetings;
c) collaborating with process coordinators to set process plans for the shift;
d) setting priorities for the coming night shift;
e) providing support for tagging and processing issues that the APS could not solve during the previous night shift;
f) raising purchase orders for contractors;
g) managing mechanical breakdowns;
h) providing a handover report to the incoming supervisor, which involved the preparation of a report that records:
i.those employees on planned and unplanned leave;
ii.the priority tasks of the shift;
iii.the details of safety concerns and issues present in the OC such as breakdowns, unsafe working areas and escalated safety concerns; and
iv.details of ongoing work, such as the tagging of equipment.
Mr Wilson said that when an APS employee is tasked with acting as a relief supervisor for a period of more than one to two weeks, the employee who is appointed as a relief APS will usually be called into backfill for the APS employee, which ensures that an APS employee is available to the team and minimises the impact on production and the person who has been appointed to act as the relief supervisor.
In respect of short-term absences, the APS employee acts as a relief supervisor and continues to perform the APS role. In these circumstances, priority tasks are undertaken instead of the APS employee fulfilling all duties of the relief supervisor and APS combined.
Regarding the work performed by a relief supervisor, Mr Wilson listed the following responsibilities:
a) the allocation of tasks to team members for the performance of work and leading the team throughout the shift;
b) escalating any process issues that cannot be solved by the team;
c) managing pre-start meetings;
d) creating training plans for the team in collaboration with the area process controller and operations superintendent;
e) notifying the appropriate manager of any unplanned absences on their team; and
f) creating a handover report for the incoming supervisor.
Mr Wilson said it was Alcoa’s expectation that APS employees acting as relief supervisor would complete all the duties and functions required of a supervisor with the exception of person management and disciplinary processes. Mr Wilson explained that the exceptions to person management and disciplinary processes had been recorded since the introduction of the APS role in 2003, and that it had been recorded that ‘the APS role is not to be a replacement for Supervisors…’.[6]
Mr Wilson’s statement on this point reflects the contents of Attachment 3 to the Statement of Agreed Facts that provides, in respect of the APS role as introduced in the 2003 Agreement, that regarding an APS ‘[T]his job is not Man Management / Replacement for Foreman/Disciplinary’.[7]
The AWU’s submissions
The AWU submitted that for the following reasons the answers to the questions to be arbitrated should be ‘no’:
a) the training requirements to become a Statutory Supervisor and the duties of a Statutory Supervisor are outside the scope of the APS role, and are of a senior supervisory level;
b) under clauses 12, 13.2, and 13.3 of the 2023 Agreement, Alcoa must follow a set process to alter or create a new APS Job Description if it wishes APS employees to undertake ongoing duties outside of their job description; and
c) Alcoa did not intend to, or attempt to, alter the APS Job Description (pursuant to clause 13.2 of the 2023 Agreement), or create a new job description (pursuant to clause 13.3 of the 2023 Agreement) in advance of its direction to undertake training to be appointed Statutory Supervisor, as it is under the mistaken belief that this appointment and the roles and responsibilities that come with it, fall within the duties of the APS Job Description.
The AWU submitted that the APS role falls within the scope of the underpinning Alumina Industry Award 2020, and it is apparent from the Job Description, and has previously been accepted by the Commission, that the focus of the role is to:
achieve the operating plan and to optimise the output of the refinery process and continually improve capability through problem solving and improving standardised work methods.[8]
The AWU acknowledged that although it had been previously contemplated by the Commission that the scope of duties covered by the 2023 Agreement may extend to some supervisory or managerial functions (such as an APS doing relief supervisory cover), the roles in the Agreement did not cover senior supervision,[9] and the APS role was not a ‘man management’ or replacement for the supervisor.[10]
The AWU pressed that Alcoa was directing supervisors to undertake the same training (presumedly Statutory Supervisor training) and appointment, albeit supervisors were classified at JG-15, and with that higher job grade, came higher responsibility and remuneration, and clearly the supervisor role was a managerial or senior supervisory role.[11]
Addressing the terms of the 2023 Agreement, the AWU identified that clause 12 used the phrase ‘reasonably require’ and that phrase had work to do. According to the AWU, the lawful and reasonable management directions by Alcoa would still be bound by the terms of the 2023 Agreement and therefore any proposed direction would have to be made in compliance with clause 12 of the 2023 Agreement.
The AWU submitted that the APS Job Description did not contemplate or cover the level of responsibility and management required of a Statutory Supervisor, and if an APS were to act in that capacity, they would be undertaking additional duties, which would be inconsistent with clause 12 of the 2023 Agreement. Given the additional duties of the Statutory Supervisor role that fall outside of the APS Job Description, the AWU held the view that Alcoa is prevented by clauses 12 and 13 of the 2023 Agreement from requiring the APS to undertaking the training and appointment.
In respect of the Job Description for the APS role, the AWU made the following observations:
a) the APS Job Description has a section specifically dealing with ‘Safety Leadership’, which:
i.limits the responsibility in this area to ‘completing routine area safety checks’ and ‘ensures that team members are able to complete their work safely’; and
ii.emphasises that if work is not able to be completed safely it is not the responsibility of the APS to do anything other than escalate the problem;
b) in describing the ‘Overall Accountability’ of the role, it specifies, significantly, that the role ‘…is not Man Management…’. As there is no managerial authority, the AWU asks, how will an APS employee carry out a Statutory Supervisor role which involves supervising and controlling workers (including contractors) and being the ARP, when the APS employee is absent authority to do so?
c) the APS role is a role that exists to ensure even the most complex mechanical issues can be solved. An APS is a senior tagger who works on the most complicated tag outs, with a single job sometimes taking up to three hours.[12] To the extent that an APS employee has any supervision or direction over other workers, this is just to help workers ‘problem solve’ mechanical issues. The APS employees are not supervisors, they do not look after contractors, they do not sign off on Authority to Perform Work forms for Safety Critical Jobs (which sits with an ARP); and
d) if an APS employee performs ‘Relief Group Leader’ work as stated in their Job Description, they are not performing the full group leader role and responsibilities.[13] This is further confirmed by the APS Job Description stating that the APS role is not a replacement for a foreman.
The AWU made further submissions in respect of the training required to undertake the role of Statutory Supervisor, noting that aside from the formal appointment to the Statutory Supervisor position which is lodged with the Department of Energy, Mines, Industry Regulation and Safety,[14] to be appointed, the Regulations require the study of WHS risk management units and sitting and passing a law exam.
From Alcoa’s own materials, it appears, said the AWU, that for these employees, a WHS bridging course is also required prior to completing the WHS risk management units.[15]
The AWU advanced that all the new and additional requirements in the proposed direction constituted ongoing additional duties, observing further that the required training included a bridging course, and an exam per Schedule 26 clause 3(4) of the Regulations[16] and as confirmed at page 11 of the Alcoa PowerPoint.[17]
Regarding the training course, the AWU submitted both the training and exams appeared to be rather complex and high pressure, noting it necessitated an aforementioned bridging course, prior to undertaking WHS units and the examination (an open book law exam). This, said the AWU, sat in contrast to the general education levels of an APS employee, who completes on average, year 10 or year 11 high school education, and who is not required to undertake any other such further formal training as part of their role.
The AWU stated that it is evident that Alcoa’s proposed direction gives rise to several attempts at the mischief to which clause 12 of the 2023 Agreement is intended to prevent, namely:
a) it is not reasonable to require an APS employee to undertake Statutory Supervisor training, or to be appointed as a Statutory Supervisor; and
b) an average APS employee would not have the necessary skill, knowledge and training to be appointed as a Statutory Supervisor; and
c) performing the role of appointed Statutory Supervisor would result in ongoing additional duties (and yet Alcoa did not attempt to alter the job description).
Alcoa’s submissions
Alcoa explained that it had introduced the APS role back in 2003 for the following reasons:
a) to optimise employee utilisation for production processes by providing for group leaders (now known as supervisors), to work day shifts instead of day and night shifts and to have night shifts staffed by production personnel to maintain the production of alumina; and
b) to introduce a new position within the production team that would allow the appointment of new employee to a higher job grade who would have leadership responsibilities on night shifts and act as relief group leaders.
The Job Description implemented for the new APS role, as it was then, was included as a Standard Operator Job Description in the 2003 Agreement. According to Alcoa, that job description has remained unchanged since its introduction.
Alcoa submitted that the APS role is a technical role that requires expert knowledge of the relevant OC. The expert knowledge required includes an understanding of all the potential safety risks that may occur in the OC, an understanding of the standardised methods of work for the OC, and the ability able to use that knowledge to advise and train lower-level operators.
Alcoa noted that there is a minimum of one APS employee on each shift panel, with there being, in some work areas, a relief APS who can be moved onto shift work to cover absences arising from an APS employee taking leave or an APS acting as a relief supervisor.
Regarding technical proficiency, Alcoa cited that APS employees require a very high level of technical proficiency as they are required to complete complex tagging procedures across the OC and provide leadership in the critical areas of their role.
Insofar as the role included safety responsibilities, Alcoa pressed that APS employees have the authority and responsibility, to stop team members and other people in the area from commencing work and/or entering the area if they identify any safety issues. Further, APS employees are required to exercise that authority.
Alcoa submitted that the expert knowledge required to become qualified as an APS can take up to five years of service in the relevant OC, which is usually gained through progression through the classification structure.
Alcoa explained that the current working arrangement for a relief supervisor is to provide leadership support for the team, including through:
a) the allocation of tasks to team members for the performance of work and leading the team throughout the shift;
b) escalating any process issues that can’t be solved by the team;
c) managing pre-start meetings;
d) creating training plans for the team in collaboration with the area process controller and operations superintendent;
e) notifying the appropriate manager or any unplanned absences on their team; and
f) creating a handover report for the incoming supervisor which records:
i.those employees on planned and unplanned leave;
ii.the priority tasks of the shift;
iii.the details of safety concerns and issues present in the OC such as breakdowns, unsafe working areas and escalated safety concerns; and
iv.details of ongoing work, such as the tagging of equipment.
The business clarified that relief supervisors are expected to complete all the duties and functions required of a supervisor, with the exception of person management and disciplinary processes. In this regard, Alcoa noted that exceptions to person management and disciplinary processes have been recorded since the introduction of the APS role in 2003. Further, it had been recorded since that time that the APS role was not to be replaced by the role of foreman (that is, the supervisor role).[18]
The exceptions were, according to Alcoa, provided for the following reasons:
a) to avoid concerns about a requirement that APS employees would be required to discipline their co-workers while they were acting supervisors;
b) confirm that APS employees would not be required to lead investigations, such as safety investigations, that could lead to disciplinary outcomes or be involved in recruitment interviews, selection processes or appointment for new crew members, which was considered to be person management; and
c) record that Alcoa would not use the introduction of the APS role to further reduce supervisor presence on an ongoing basis.
Alcoa submitted that in 2022, the Regulations were amended to require that Statutory Supervisors must be appointed for particular places at a mine in respect of which a levy is payable. Alcoa said its refineries fell within the particular places and as a consequence, Alcoa is required to appoint Statutory Supervisors.
Pursuant to clause 3(3) of Schedule 26 of the Regulations, a Statutory Supervisor has certain functions for the place at the mine to which they are appointed. Those functions are set out at paragraph [9] of this decision. Pursuant to clause 3(4) of Schedule 26 of the Regulations, a person is eligible to be appointed as a Statutory Supervisor for a place at a mine if they have worked for at least two years as a supervisor or worker in a similar operation or industry and the mine is engage in, have successfully completed an approve WHS risk management unit for Statutory Supervisor and have passed an applicable legislation examination for Statutory Supervisors.
In light of the above, in June 2023, the Human Resources team and the Training and Development team at the Wagerup Refinery commenced deployment of Statutory Supervisor training to supervisors and superintendents. In addition, Alcoa decided to provide APS employees at the Wagerup Refinery with training for appointment as Statutory Supervisors.
Regarding the terms of the 2023 Agreement, Alcoa highlighted that clause 4 of the 2023 Agreement, provided as follows:
“The Parties undertake (as applicable) to:
a) accept and co-operate with the introduction of new plant and equipment;
b) organise work in a fully flexible manner within the Company’s WA Operations and in accordance with this Agreement;
c) undertake any jobs or duties, subject to their level of skill, knowledge and competence and any licensing requirements, without demarcation; and
(d) maximise continuity of production and supply.”
(Alcoa’s emphasis added)
Furthermore clause 12 of the 2023 Agreement, similarly, addressed the work to be performed by employees:
“Employees will perform work in any area of the site that the Company may reasonably require having regard to their skills and their job description and all the job descriptions below. Consistent with this, Employees will competently and safely undertake any work and utilise tools or equipment for which they have the necessary skill, knowledge and training, provided any licensing and other statutory requirements are met. The Company agrees that work directions will not be used to undermine job descriptions and if ongoing additional duties are required an alteration will be initiated in accordance with clause 13.2.”
Regarding the requirement for employees to participate in training for appointment to the Statutory Supervisor position, Alcoa pointed to clause 14 of the 2023 Agreement, which relevantly provides:
“14.1 The Parties are committed to the continual development and implementation of structured training programs. This is consistent with the requirement for Employees to acquire and utilise broader and more advanced skills so as to undertake the expanded range of functions associated with the whole of job concept. This involves equipping Employees with the skills necessary to undertake any tasks associated with the Employees' operating area, provided it is safe, efficient, legal and logical to do so.
14.2 All Employees will be given the opportunity to participate in training programs and, through the acquisition and utilisation of skills, to seek progression within the pay structure. Such training will be subject to the Company's current and future operational needs, the availability of training resources, plant safety considerations and the skills profile and desires of Employees.
14.3 The training programs are provided by the Company and conducted through a combination of external, formal in-house, and structured on-the-job training. It is intended that training programs conform with emerging national standards.
14.4 With the exception of some external courses, all training and assessments will be conducted by Supervisors, Trainers, Qualified Assessors and other subject matter experts as appropriate.
14.5 An Employee may be required to undertake training or provide training support where competent to do so.”
(Alcoa’s emphasis added)
Alcoa pressed that the APS Job Description provided that an APS, pursuant to section (e) of the Accountability Statements may be required to act as a relief group leader (relief supervisor) for the area. Therefore, in respect of any asserted barrier related to a claimed alteration to the APS Job Description, Alcoa submitted that clause 13.2 did not impose a legal constraint upon directing APS employees to undergo training and undertake the functions of a Statutory Supervisor on the basis that there had been no alteration to the APS Job Description, and nor was any alteration required, because the scope of the existing APS Job Description was sufficient to cover the work to be performed by an APS whilst undertaking the functions of a Statutory Supervisor (which will be exercised whilst an APS is acting as relief supervisor). It was therefore Alcoa’s view that clause 13.2 of the 2023 Agreement had, in the circumstances, no application.
Alcoa continued that there was no legal constraint within the 2023 Agreement, nor the Regulations, which would prevent the Respondent exercising its managerial prerogative to require an APS employee to undertake training in order to facilitate the APS employee performing the functions of, and being appointed as, a Statutory Supervisor.
In respect of managerial prerogative, Alcoa submitted that Sams DP in Bruce Steenstra v J.J. Richards & Sons Pty Ltd[19] confirmed the principles for managerial prerogative set out in Australian Federated Union of Locomotive Engineman v State Rail Authority (NSW)[20] (XPT) and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd[21] (Cram), that the employer has a right to conduct and manage its business, as it sees fit, and without external interference. Albeit Alcoa noted that in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd,[22] Vice President Lawler made clear that managerial prerogative is subject to legal constraints (such as by statute, terms of an award, terms of a contract of employment or a statutory agreement).
Returning to XPT, Alcoa submitted that if managerial prerogative is not subject to the above legal constraints, the Commission should not interfere with the right of an employer to lawfully manage its own business unless upon examination of all the facts it was deemed that the exercise of such managerial prerogative would be unjust or unreasonable to the employees.[23] Alcoa drew attention to the Vice President’s reasoning at paragraph [12] of XPT, where he said that ‘an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.’[24]
As to reasonableness of the decision to train APS employees for appointment as a Statutory Supervisor and require them to undertake the functions of a Statutory Supervisor when acting as relief supervisor, Alcoa argued that it was not unreasonable or unjust when regard is had to the existing responsibilities of an APS employee when acting as a relief supervisor, which included responsibilities aligned with the Statutory Supervisor function.
Responding to a perceived assertion by the AWU that the exception of ‘man management’ would pose a barrier to the implement of the Alcoa’s decision, Alcoa submitted that there was no legal constraint to directing APS employees to undergo training and undertake functions of a Statutory Supervisor on the basis that:
a) person management was intended to capture that APS employees would not be required to lead investigations that could lead to disciplinary outcomes or be involved in recruitment interviews, selection processes or appointment for new crew members; and
b) APS employees were responsible for issuing directions and leadership to team members of their crew, which aligns with the functions required of a Statutory Supervisor insofar as they:
i.are responsible for the allocation of work and giving directions as to how work is to be performed in their OC when acting as supervisor and when giving direction as an APS;
ii.supervise and control workers insofar as they supervise the performance of work for the team when acting as a relief supervisor and are required to provide directions to team members when instructing them how work should be performed;
iii.provide training and instruction to new and existing employees and undertake assessments of those employees;
iv.provide directions to maintain a safe working area in the OC by ensuring that, if they see an unsafe situation when working as a relief supervisor or APS, they take immediate action to address that – whether that be in relation to team members, contractors or other personnel in the OC;
v.develop and implement standardised work and ensure that standardised work is being followed and is successful;
vi.lead improvement initiatives for the team, which includes the communication of those improvements which are to be adopted; and
vii.conduct area checks and ensure that team members are able to complete their work safely.
Relevant legal principles
The principles that govern the interpretation of enterprise agreements are well-established. In WorkPac, the Full Federal Court elucidated the following:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”[25]
The Full Federal Court in WorkPac further clarified that where a term is undefined it ought to be presumed that the draftsperson intended that the term have its ordinary meaning unless there is a contrary indication.[26] And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that canon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.[27]
In Metcash Trading Limited T/A Metcash v United Workers’ Union[28] the Full Bench outlined the following in respect of the significance of ‘context’ and ‘purpose’:
[43] The modern approach to statutory construction is that regard should be had to context and to purpose, whether or not there is some ambiguity to be resolved. In SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ explained (at [14]) (footnotes omitted):
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[44] The same is true in relation to the interpretation of industrial instruments. The interpretation of an enterprise agreement ‘turns upon the language of the particular agreement, understood in the light of its industrial context and purpose’. In Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, Kirby J described a contextual approach to the interpretation of a workplace agreement in the following way (at [66]) (footnotes omitted):
All of these are useful details of a background character. All are relevant in the construction of the Agreement’s critical clause, the meaning of which is primarily in issue in these appeals (cl 55.1.1). In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of
industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.
[45] When engaged in the task of construing an industrial instrument, relevant context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part, or to other documents with which there is an association’ and may include ‘… ideas that gave rise to an expression in a document from which it has been taken’. However, the Commissioner was correct to observe that consideration of context cannot justify rewriting an agreement. Context is to be considered as an aid to the construction of the text. Interpretation is always a text-based activity.
[46] To the extent that the Commissioner suggested that it was unnecessary for her to consider Metcash’s submissions in relation to the history of the Agreement and the source of the disputed term given her findings as to the text of clause 9.6, that involved an error of approach. The context provided by the history of the Agreement and the content of the predecessor agreement was capable of being considered as part of the process of interpretation of the text of clause 9.6…
A particular focus on context and the history of a particular clause was again emphasised by the Full Federal Court in James Cook University v Ridd,[29] with the Court expressing:
[R]ecourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518) (Hercus).
Expanding upon the abovementioned principle and extracting more fulsomely the following passage from Hercus at page 518, the Court stated:
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
Relevant to present circumstances is the approach to be adopted in respect of evidence led of conduct engaged in after an agreement was made, and presumedly, after it has come into operation.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[30] the Full Bench expressed that:
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
However, in Transport Workers’ Union of Australia v Jetstar Group Pty Ltd[31] Deputy President Gostencnik stated the following in respect of evidence led of conduct engaged in after an agreement was made:
[27] There are several difficulties in accepting evidence of conduct after the Agreement was made in construing the meaning and effect of the disputed provisions. First, the evidence is limited because it is evidence of the experience of one casual employee and says nothing about Jetstar’s practice more generally. Second, as Gray J explained in Shop Distributive and Allied Employees’ Association v Woolworths Limited a difficulty in relying on evidence about the conduct of an employer to establish a common understanding is the absence of any explanation for the conduct. The reason for the conduct might have been ‘inadvertence on the part of those responsible for making the payments’, or an ‘act of generosity on the part of the respondent, from which it has now resiled.’ The mere fact that something was done in the past is not “evidence of a settled interpretation, of which the parties had a common understanding”.
[28] Third, as I explained in NTEIU v Deakin University, to the extent that reliance is placed upon what is said by the Full Bench in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd at [114] and specifically at 15 thereof, it is plain that the Full Bench relied upon the judgment in Spunwill Pty Ltd v BAB Pty Ltd in order to formulate the principle set out at 15. It seems clear from the NSW Court of Appeal judgment in Magill v National Australia Bank Limited that the Court of Appeal expressly rejected the approach to post contractual conduct adopted in Spunwill and preferred the view of Bryson J in Sportsvision Australia Pty Limited v Tallglen Pty Limited who considered the reasoning of Lord Reid in James Miller & Partners Limited v Whitworth Street Estates (Manchester) Limited to be unanswerable. In Miller his Lordship there said:
“I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or year later.”
[29] For these reasons that evidence is of no assistance. The remainder of the evidence relied on by the TWU is simply evidence of one employee’s subjective belief of the proper construction of the Agreement and is also of no assistance.
In summary and returning to the judgment of the Full Court of the Federal Court in James Cook University v Ridd[32] at paragraph [65], the relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
Consideration
The resolution of the dispute by reference to the questions posed turns on the proper construction of various clauses of the 2023 Agreement. To recap, the questions asked are whether:
(a) Alcoa can direct an APS to undertake WHS risk management units for Statutory Supervisor and an applicable legislation examination for Statutory Supervisors pursuant to the terms of the 2023Agreement and the APS Job Description?
(b) Alcoa can require an APS to undertake the role of Statutory Supervisor as contemplated by Schedule 26 of the Regulations, having regard to the terms of the 2023 Agreement and the APS Job Description.
It is uncontroversial that the 2023 Agreement covers and applies to the relevant employees (APS employees) and Alcoa. Clause 3 of the 2023 Agreement, the coverage clause, specifies the cohort of employees covered by the 2023 Agreement by reference to the following:
… all employees employed by the Company at its Western Australian Operations (“WA Operations”) who carry out the work in the job descriptions set out in the table in Appendix 8 of this Agreement.
For an employee to be covered by the 2023 Agreement they are required to carry out the work so described in the ‘Job Descriptions’ set out in Appendix 8. However, Appendix 8, does not, in the true sense of the word, provide job ‘descriptions’ for the various positions the 2023 Agreement covers. Instead, the Appendix sets out three things - a job title, a site, and a job grade. Some of the job titles are temporally grouped, while some are grouped by operational area and/or site.
Regarding the temporal grouping, there are those job descriptions that are referred to as ‘Pre-2003 Job Descriptions’, those that are referred to as ‘2003 Agreement Job Descriptions’, and finally those that are referred to as ‘2005-2007 Agreement Job Descriptions’. A note to Appendix 8 sets out that ‘existing pre-2003’ ‘grandfathered’ job descriptions, with employees still attached to them, shall be removed by agreement as the employee leaves that position.
It is evident from the coverage clause and Appendix 8 of the 2023 Agreement – particularly the temporal groupings, that the agreement that came into operation on 24 November 2023, that is, the 2023 Agreement, has a history – notwithstanding its operative date being of relative recency. The 2023 Agreement is, in some respects, predicated upon a series of antecedent agreements.
The 2023 Agreement contemplates coverage of job descriptions that were within the business prior to 2003, those that were in place as of 2003 (or at least around that time) and those that were in place by reference to the period 2005-2007 (2005-2007 Agreement Job Descriptions). Other job descriptions in Appendix 8 are not relevant for present purposes, although suffice to say that those which reference a site do not include Wagerup (Bunbury and Pinjarra) and those that reference operations, are limited to ‘Exploration Drilling’ and ‘Mining (AWU)’.
Whilst Appendix 8 lists the sites and job grades for the Pre 2003 Job Descriptions, the 2003 Agreement Job Descriptions and the 2005-2007 Agreement Job Descriptions, the specific duties and responsibilities attributable to each job title are not detailed. This is the case notwithstanding that clause 13 of the 2023 Agreement is titled ‘Job Descriptions’. Turning to clause 13.1 of the 2023 Agreement, it simply provides that all job descriptions under the Agreement are listed in Appendix 8 and contained within Alcoa’s controlled document system.
Before addressing the content of the APS Job Description held within Alcoa’s controlled document system as required by clause 13.1 of the 2023 Agreement, the other subclauses of clause 13 require consideration.
The framers of the 2023 Agreement have not fettered themselves to the content of the job descriptions established some twenty years ago, or for that matter, those that were established more recently. Clause 13.2 of the 2023 Agreement provides for the alteration of a job description referred to in Appendix 8, and clause 13.3 allows for the introduction of new job descriptions applicable to work carried out under the job descriptions covered by the 2023 Agreement – again subject to a process having been followed. It is therefore not the case that the job descriptions, as referred to in Appendix 8 of the 2023 Agreement, are required to remain static, incapable of change. However, the 2023 Agreement requires a process to be followed for changes to occur to a job description or for a new job description to be introduced.
Whilst the question asked of the Commission is not whether subclauses 13.2 or 13.3 have been enlivened, subclause 13.3 remains relevant for current purposes. It expressly refers to the establishment of new job descriptions. However, any new job description that is introduced is limited to the extent that it is ‘applicable to work carried out under the job descriptions covered by this Agreement’. It is not the case that subclause 13.3 allows for an expansion of the scope of work carried out under the job descriptions, it simply permits the establishment of new job descriptions applicable to the work that is already carried out under the job descriptions in the 2023 Agreement. To reinforce this notion, subclause 13.3(c) expressly provides that a new job description will not, in relation to employees covered by the 2023 Agreement, undermine any job description in existence at the commencement of the 2023 Agreement.
On the face of it, subclause 13.2 does not appear so limited, allowing for an alteration of a job description after affected employees are consulted in an attempt to reach agreement about the alteration. Failure to reach agreement, permits recourse to the dispute resolution procedure in clause 25 of the 2023 Agreement. However, subclause 13.2 is to be read in context, including by reference to the other terms of the 2023 Agreement. Clause 12 of the 2023 Agreement notes that if additional duties are required an alteration will be initiated in accordance with clause 13.2.
Returning to the content of the APS Job Description that is contained in Alcoa’s controlled document system,[33] it is evident from the SOAF at paragraph [4] that the APS Job Description that currently applies to an APS position is set out in Appendix 10 – Job Descriptions at page 119 of the 2014 Agreement. That is, it is the APS Job Description at page 119 of the 2014 Agreement that is relevant for current purposes.
A copy of the APS Job Description is attached to the SOAF at Annexure 2. That Job Description is set out in full at paragraph [24] of this decision.
The APS Job Description sets out that an APS, pursuant to section (e) of the Accountability Statements, may be required to act as a ‘Relief Group Leader’ (relief supervisor/relief group leader) for the area. The 2023 Agreement does not provide a job description for the position of relief group leader, or in this case, a relief supervisor. This is evidently because the role of a supervisor is not covered by the 2023 Agreement, with the exception of an ‘Assistant Supervisor’ as referred to in ‘Job Descriptions Mining (AWU)’ – a position which, for current purposes, is not presently relevant.
In the absence of a job description for a relief supervisor in the 2023 Agreement, Alcoa has relied upon the evidence, in part, of Mr Wilson to outline the duties and responsibilities of a relief supervisor (see paragraph [66] of this decision). It is apparent from the 2023 Agreement and the evidence of the AWU and Alcoa, that an APS acting in the position of relief supervisor does not assume all the duties and responsibilities of the substantive supervisor position. The substantive position of ‘supervisor’ has been modified to accommodate circumstances where it has been considered that an APS should not be placed in a position to engage in ‘man management’ or disciplinary processes involving their colleagues.
Mr Wilson said that Alcoa held the expectation that an APS acting as relief supervisor would complete all the duties and functions required of a supervisor subject to the aforementioned exceptions. However, that expectation is to be understood in the context in which employees in APS roles under the 2023 Agreement and its predecessors, have previously occupied the position of relief supervisor. That context is not one in which an APS employee acting as relief supervisor under an enterprise agreement has been required to be an appointed Statutory Supervisor.
The Regulations codify a range of functions for a person appointed as a Statutory Supervisor. Alcoa holds the view that its evidence shows that the functions codified by Schedule 26 of the WHS Regulations are preexisting duties for APS employees, even though they will be required to act as a Statutory Supervisor only when acting in the relief supervisor role.
At paragraphs [41] and [42] of Mr Wilson’s witness statement, Mr Wilson explains that when an APS performs the role of relief supervisor, the APS performs certain tasks or assumes certain responsibilities. It is apparent from his evidence that whilst acting as a supervisor, the APS assumes responsibility for allocating tasks to team members for the performance of work, in addition to supervising and monitoring team members for the purpose of safety – with direction given where required. It is to be appreciated that the witnesses for the AWU do not necessarily agree with Mr Wilson’s evidence in this respect. Although Mr Lally accepted that allocating tasks is just part of doing his job to get the work done,[34] but when asked in cross examination whether an APS employee has the capacity to allocate work, responded that ‘[i]f the person is competent in that area, that they’re responsible for the day, and the task in that area, it’s not a case of allocating it. It’s in your area, and you’re capable of doing it.’[35] Concerning safety, Mr Lally agreed that it is an APS employee’s responsibility to ensure that work is performed safely,[36] and that he would routinely go and do safety checks by checking up on what his colleagues were doing.[37]
However, proceeding on the basis that Mr Wilson, in giving his evidence, has provided an accurate account of the duties and responsibilities of the substantive APS position under the 2023 Agreement, and of the APS role when assuming the relief supervisory role, it remains that the role of Statutory Supervisor is more expansive in its functions than Mr Wilson’s account of the work performed by an APS employee and of that provided in the 2023 Agreement.
The functions of a Statutory Supervisor extend to ‘allocating tasks to workers for that worker to carry out at the appointed place’, and ‘supervising and controlling workers and other persons at the appointed place’, amongst other functions.[38] Whether that turn of phrase is limited to a safety context or is construed more broadly, the evidence does not support a finding that an APS employee whether performing work in her or his substantive role or in a relief supervisory capacity, is controlling workers, whether those workers are employees, contractors or subcontractors.
It is a statutory function for a Statutory Supervisor to supervise and control workers and other persons at the appointed place (the Wagerup Refinery in this case). Alcoa submitted that the evidence shows that APS employees will not be responsible for directing and controlling the work of the contractors insofar as the performance of the tasks themselves is concerned, but simply in ensuring that the controls are in place to ensure that the work is performed safely.[39] Alcoa further submitted it is the case that a Statutory Supervisor can be an ARP but a Statutory Supervisor does not have to be to be able to perform that role and so the functions that are already performed (presumedly by the APS employee in a relief supervisor role) will not involve any new duties that are captured by clause 12 or trigger 13.2 in that regard. While Alcoa may point to evidence showing that an APS will not be responsible for directing and controlling the work of contractors insofar as the performance of the tasks themselves are concerned,[40] when performing the functions of both relief supervisor and Statutory Supervisor, the APS employee will be responsible, in her or his role as Statutory Supervisor, for complying with the functions as provided in the Regulations.
Returning to the terms of the 2023 Agreement, clause 4 of the 2023 Agreement sets out the general obligations of the parties to the 2023 Agreement. Those obligations are as follows:
a) accept and co-operate with the introduction of new plant and equipment;
b) organise work in a fully flexible manner within the Company's WA Operations and in accordance with this Agreement;
c) undertake any jobs or duties, subject to their level of skill, knowledge and competence and any licensing requirements, without demarcation; and
d) maximise continuity of production and supply.
Alcoa submitted clause 4 requires work to be engaged in, in a fully flexible manner within the company’s WA Operations and in accordance with the 2023 Agreement. Further, employees are to undertake any jobs or duties subject to the employees’ skills, knowledge, competence and any licencing requirements. Alcoa presses that the position adopted by the AWU is counter to the obligations in clause 4 insofar as it involves a refusal by the APS employees to accept training for the purposes of appointment (to the Statutory Supervisor role). Alcoa argues this approach will not facilitate the organisation of work in a fully flexible manner.
It is trite to observe that under clause 4, the organisation of work is to be undertaken in a fully flexible manner ‘in accordance with the 2023 Agreement’. The phrase ‘in accordance with the 2023 Agreement’ has work to do. Subclause 4(b) does not provide carte blanche authorisation for Alcoa to organise work in a fully flexible manner, it may only do so, in accordance with the 2023 Agreement. To the extent that the Job Description of the APS role in Appendix 8 of the 2023 Agreement imbues upon Alcoa discretion to appoint an APS to act as a ‘Relief Group Leader’ for the area, the term ‘Relief Group Leader’ or ‘relief supervisor’ is to be understood within the context of the 2023 Agreement and its predecessors, such as the 2014 Agreement and the 2003 Agreement. As acknowledged, those agreements do not detail the duties and responsibilities of the relief supervisor role, save that the 2003 Agreement specified that the APS role was not ‘Man Management / Replacement for Foreman / Disciplinary’. The 2014 Agreement, particularly the Job Description for the APS role at Appendix 10, fails to illuminate what is required of the acting supervisory role.
Alcoa proposes that essentially it has the capacity to require the performance of Statutory Supervisor functions by an APS employee and that these functions will then become the subject of the Job Description (APS) itself. It places reliance on clause 12 of the 2023 Agreement, stating that the clause provides some greater specificity as to the responsibilities of employees covered by the 2023 Agreement. Clause 12 sets out that employees will perform work in any area of a site where the company may reasonably require, having regard to their skills and their job description and all the job descriptions ‘below’. However, unlike clause 4, clause 12 stipulates that ‘[e]mployees will competently and safely undertake any work and utilise tools of equipment for which they have the necessary skill, knowledge and training, provided any licencing and other statutory requirements are met’. In contrast, clause 4 makes no mention of statutory requirements being met, although at subclause 4(b) it refers to ‘work’ and at subclause 4(c) it refers to ‘any jobs or duties’.
The reference in clause 12 to the requirement for employees to competently and safely undertake any work or in clause 4 to organise work in a fully flexible manner or to undertake any jobs or duties, is again to be understood in the context of the 2023 Agreement. The 2023 Agreement does not provide coverage, at least in the Wagerup Refinery, to substantive supervisory positions. The references to ‘work’, ‘jobs’ and ‘duties’ in the aforementioned clauses, are references to activities that are primarily grounded in the ‘work’ or ‘job’ or ‘duties’ so described within the 2023 Agreement and the job descriptions that form part of it, so much is evident from clauses 4, 12 and 13. Whilst the Job Description for an APS includes acting as a relief supervisor, the work carried out by the APS in the ‘relief supervisor’ role as contemplated by the APS Job Description, is not synonymous with the work that would be undertaken by a supervisor on a substantive basis. The background evidence shows that the common contemplation of those covered by the 2023 Agreement was that the relief supervisory role, as filled by an APS, differed to the substantive position of supervisor. This point is emphasised by the discrepancy in the value of relief supervisory role performed by an APS employee and the supervisor role. Unless the APS acts as relief supervisor for a prescribed period, the value attributed to the relief supervisor role is less than that of the substantive position of supervisor.
Ms Alexander’s evidence is that for an APS to be appointed as a Statutory Supervisor, it is necessary for the APS to undertake Statutory Supervisory training in the form of a government approved WHS Course and following completion of the WHS Course, the completion of an open book examination. It is therefore not the case that an employee in an APS role can perform the duties of a Statutory Supervisor in the absence of fulfilling the training and examination requirements as set by the Western Australian Department of Energy, Mines, Industry Regulation and Safety. This is because they do not have the knowledge to competently and safely perform that Statutory Supervisor role without the completion of the WHS Course and the requisite examination. It is therefore not reasonable to require an APS to perform the Statutory Supervisor role in circumstances where legislative requirements have not been met.
In the context of these provisions, there is no basis for construing the 2023 Agreement to the effect that the Job Description for the APS, to the extent that it refers to an APS acting as a relief supervisor, subsumes within it, not only the functions of the substantive supervisor role (subject to exceptions) but also the functions of the Statutory Supervisor, and, in addition, appointment under the Regulations to that position. The scope of the existing APS Job Description is insufficient to cover the work to be performed by an APS whilst undertaking the functions of a Statutory Supervisor (which will be exercised whilst an APS is acting as relief supervisor). Were Alcoa desirous of having the APS role perform the Statutory Supervisor role then it would be incumbent on the company to comply with the terms of the 2023 Agreement to make that change.
It follows that the answer is ‘no’ to the following question:
Can the Respondent require an APS to undertake the role of Statutory Supervisor as contemplated by Schedule 26 of the Regulations, having regard to the terms of the 2023 Agreement and the APS Job Description.
Turning to whether Alcoa can direct an APS to undertake the WHS Course and an applicable legislative examination for Statutory Supervisors pursuant to the terms of the 2023 Agreement and the Job Description for the APS, at this time the answer is ‘no’.
Alcoa proposes that the allocation of Statutory Supervisory functions to an APS when acting as relief supervisor is reasonable in light of the fact that the APS would have the skills if they completed the prescribed training. Alcoa considers APS employees could be required to undertake the Statutory Supervisor function pursuant to clause 12 of the 2023 Agreement and be required to undertake the training necessary for appointment pursuant to clause 14 of the 2023 Agreement. For reasons already provided, Alcoa’s argument concerning the reach of clause 12 must fail.
Regarding clause 14 of the Agreement, whilst clause 14.1 expresses the commitment by those covered by the 2023 Agreement to continual development and for employees to acquire and utilise broader and more advanced skills so as to undertake the expanded range of functions associated with ‘the whole job concept’, that commitment does not usurp clause 12 of the Agreement. Clause 14 is to be read in conjunction with clause 12, which expressly provides that while Alcoa may reasonably require an employee to perform work in any area of the site, it may only do so having had regard to that employee’s skills and job description. Further, work directions are not to be used to undermine job descriptions. Hence, where ongoing additional duties are required, clause 13.2 has work to do.
To direct an APS employee to undertake the WHS Course and an applicable legislative examination for Statutory Supervisors at this time, fails to countenance that such direction must be both lawful and reasonable. Given Alcoa is unable under the 2023 Agreement to require an APS to undertake the role of Statutory Supervisor as contemplated by Schedule 26 of the Regulations, at the very least it would be unreasonable to compel APS employees undertake the WHS Course (so described in this decision) and the examination.
Conclusion
My consideration of the abovementioned factors, submissions and evidence leads me to accept that proposed by the AWU, namely:
a) Question (a) is answered: No.
b) Question (b) is answered: No.
DEPUTY PRESIDENT
Appearances:
Ms E Ong, for the Applicant.
Mr M Vallence, for the Respondent.
Hearing details:
2024.
Perth (by video using Microsoft Teams):
22 October.
[1] AE522343.
[2] AE407184.
[3] Work Health and Safety (Mines) Regulations 2022 (WA) sch 26 cl 3 (the Regulations).
[4] Witness Statement of Darryn Michael Beresford, [14] (Beresford Statement).
[5] AG825712.
[6] Witness Statement of James Leslie Wilson, [36].
[7] Digital Hearing Book, 471.
[8] Australian Workers’ Union, The v Alcoa of Australia Limited T/A Alcoa World Alumina Australia[2021] FWC 3550 [109].
[9] Ibid [108], [114].
[10] Statement of Agreed Facts, [SOAF-3] (SOAF).
[11] Witness Statement of Michael Kennth Lally, [18] (Lally Statement); Aluminium Industry Award 2020 cl 4.3(d).
[12] Beresford Statement (n 4) [13(e)].
[13] Witness Statement of Robbie Tyrone Cottingham, [10]; Beresford Statement (n 4) [18]-[19].
[14] Regulations (n 3) sch 26; Lally Statement (n 11) [MKL-03].
[15] Lally Statement (n 11) [MKL-03].
[16] SOAF (n 10) [SOAF-4].
[17] Lally Statement (n 11) [MKL-03].
[18] AG825712, Appendix 7, 4.
[19] [2015] FWC 7918 [186].
[20] (1984) 295 CAR 188.
[21] (1987) 163 CLR 117.
[22] [2011] FWA 8288.
[23] Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd[2011] FWA 8288 [11].
[24] Ibid [12].
[25] WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 580 [197].
[26] Ibid 581 [202].
[27] Ibid.
[28] [2024] FWCFB 410.
[29] (2020) 278 FCR 566, 580 [65(v)].
[30] [2017] FWCFB 3005 [114].
[31] [2022] FWC 253.
[32] (2020) 278 FCR 566, 580 [65].
[33] SOAF (n 10) [5].
[34] Transcript of Proceedings, Australian Workers’ Union, The v Alcoa of Australia Limited (Fair Work Commission, C2024/5153, Beaumont DP, 22 October 2024) [PN272] (Transcript).
[35] Ibid [PN213].
[36] Ibid [PN216].
[37] Ibid [PN225].
[38] Regulations (n 3) sch 26 cl 3 (3)(a)-(b).
[39] Transcript (n 34) [PN1059].
[40] Ibid.
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