Australian Workers' Union, The v Alcoa of Australia Limited T/A Alcoa World Alumina Australia
[2021] FWC 3550
•23 DECEMBER 2021
| [2021] FWC 3550 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(C2021/891)
DEPUTY PRESIDENT BINET | PERTH, 23 DECEMBER 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 19 February 2021 the Australian Workers’ Union (AWU) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with Alcoa of Australia Limited T/A Alcoa World Alumina Australia (Alcoa) in accordance with the dispute resolution procedure contained in clause 25 of the Alcoa of Australia Limited WA Operations AWU Enterprise Agreement 2019 (Agreement).
[2] The dispute concerns the proposed creation of a new role of Operational Dispatch and Crusher Co-Ordinator at Alcoa’s Willowdale minesite (Proposed Dispatch Role). The parties are in dispute as to whether the Agreement applies to the new role.
[3] On 3 March 2021 Alcoafiled a response to the Application.
[4] On 17 March 2021 the parties attended a conciliation conference before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and the AWU requested that the Application be referred for arbitration.
[5] The Application was therefore listed for hearing in Perth on 22 June 2021 (First Hearing).
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 15 April 2021 (Directions).
[7] The AWU filed an outline of submissions and the evidence upon which it relied on 20 May 2021. Alcoa filed an outline of submissions and the evidence upon which it relied on 10 June 2021.
[8] At the First Hearing the issues in dispute were further clarified and the hearing was adjourned to permit the parties to file additional materials.
[9] Directions for the filing of those additional materials were issued to the parties on 23 June 2021 (Second Directions).
[10] In accordance with the Second Directions Alcoa filed a Supplementary Outline of Submissions and further evidence upon which it relied on 6 July 2021.
[11] On 20 July 2021 the AWU filed a Consolidated Outline of Submissions and further evidence upon which it relied.
[12] On 27 July 2021 Alcoa filed a response to the AWU’s Consolidated Outline of Submissions.
[13] Further hearing of the Application occurred on Thursday 12 August 2021, Friday 13 August 2021 and Thursday 7 October 2021 (Second Hearing).
[14] Closing submissions were filed on behalf of the AWU on 25 October 2021. Closing submissions were filed by Alcoa on 1 November 2021.
Permission to be represented
[15] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[16] Alcoa sought permission to be represented at both Hearings. The AWU sought to be represented at the Second Hearing.
[17] Having considered the submissions of the parties, leave was granted to the parties to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[18] At the First Hearing Mr Mark Vallence of Heelan & Co. (Mr Vallence) appeared on behalf of Alcoa. At the Second Hearing Mr Vallence appeared on behalf of Alcoa and the AWU was represented by Mr Dustin Rafferty of Eureka Lawyers (Mr Rafferty)
Evidence
[19] The following witnesses provided written and oral evidence on behalf of the AWU:
a. Mr Dan McCaig – the AWU Organiser with responsibility for Alcoa (Mr McCaig).
b. Mr Corey Mitchell – a Senior Production Operator employed by Alcoa at its Willowdale minesite (Mr Mitchell).
[20] The following witnesses provided written and oral evidence on behalf of Alcoa:
a. Mr Jodi Andrew Racco – Development and Rehabilitation Superintendent for the Willowdale minesite (Mr Racco).
b. Ms Melanie Kim Nash – Senior HR Consultant for Willowdale minesite (Ms Nash).
c. Mr Peter Mullins – Superintendent of Planning, Infrastructure, Stores and Security (Mr Mullins).
d. Mr Timothy James Raggatt – Mine Manager Willowdale minesite (Mr Raggatt).
[21] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties. The witness statement of Mr Raggart was separately marked as Exhibit R1 and the witness statement of Mr Mullins was separately marked as Exhibit R2
[22] On 13 October 2021 I conducted an inspection of the Willowdale minesite, including the Crusher, accompanied by representatives of Alcoa and the AWU.
[23] In reaching my decision, I have considered all the submissions made, and the evidence tendered, even if not expressly referred to in these reasons.
Background
[24] The Agreement was approved by the FWC on 16 December 2019 with undertakings and commenced operation on 23 December 2019. The nominal expiry date of the Agreement is 15 December 2023.
[25] The Agreement covers and applies to Alcoa, the AWU and to employees employed by Alcoa at its Western Australian Operations who carry out work in the job descriptions set out in the table at Appendix 8 of the Agreement (Employees).
[26] The dispute relates to the performance of work at the Willowdale minesite as part of activities related to the extraction and supply of bauxite to Alcoa’s Wagerup Alumina Refinery.
[27] The work performed at the Willowdale minesite involves development, production and/or rehabilitation activities, which include the following: 2
a. Stripping and stockpiling of topsoil (which holds vegetation seedstock).
b. Removal of overburden (being material located above bauxite deposits).
c. Removal of secondary overburden from cap rock (and backfilling of the same).
d. Drilling and blasting of mining pit locations for ore extraction.
e. Extraction of ore using excavators and front end loaders.
f. Transportation of extracted ore using a fleet of haul trucks for delivery to the Crusher (being a piece of equipment that crushes ore for transport by conveyor).
g. Crushing of ore for transport through a conveyor system for delivery to the Wagerup Alumina Refinery.
h. Development and maintenance of relevant transport infrastructure, including roads and ramps for pit entry/exit.
i. Management of environmental responsibilities, including but not limited to:
• water management;
• dieback management; and
• waste water management.
j. Identification and management of hazards to employees and equipment.
[28] These activities are undertaken by a combination of personnel, including: 3
a. management and supervisory employees;
b. production and maintenance employees covered by the Agreement;
c. mechanical trades and electrical trades employees as covered by the Alcoa of Australia WA Operations (Mechanical Trades) Agreement 2020 (AMWU Agreement) and the Alcoa of Australia, WA Alumina and Bauxite Operations, CEPU Enterprise Agreement 2018 (CEPU Agreement) respectively; and
d. contractors and labour hire personnel.
[29] Alcoa also employs a number of administrative, management and supervisory employees who are not covered by the above enterprise agreements but who undertake work to support and manage the activities of those are covered by these agreements. 4
[30] The production and maintenance employees covered by the Agreement at the Willowdale minesite are employed in one of the following roles:
a. Mining Operator;
b. Senior Equipment Operator – Production, Rehab & Development (SEO);
c. Senior Equipment Carer – Fixed Plant & Equipment;
d. Mineworker;
e. Mine Site Trainer; and
f. Assistant Group Leader (AGL).
[31] SEO’s operate heavy mining equipment such as excavators, graders, bulldozers, dump trucks, wheel loaders and scrapers to undertake production, rehabilitation or development tasks. SEO’s also currently operate the Crusher.
[32] Ore excavated from the orebody is transported by truck and emptied into the Crusher. The Crusher reduces the size of the ore so that it can be transported by conveyor to the Refinery for further processing. The speed at which ore is mined and trucked and the speed at which it is processed through the Crusher is controlled from the Crusher operating panels to ensure a continuous and even feed of ore to the refinery.
[33] Depending on their individual qualifications, skills and experience, SEO’s are rostered to operate a particular item of equipment each shift. For example, of the cohort of 96 SEOs currently employed at Willowdale 27 are certified as competent to operate the Crusher.
[34] The tasks currently performed by an SEO working in the Crusher typically include: 5
a. monitoring of the Crusher's operation using the systems installed in the Crusher;
b. scheduling breaks for production operators;
c. monitoring the haul fleet to meet operational requirements on the delivery of bauxite to the Crusher;
d. scheduling servicing and refuelling of production mobile equipment; and
e. where required (i.e. before or after a maintenance day), the start up or shut down of the Crusher and conveyor system.
[35] Alcoa wish to improve fleet management through the enhanced use of Fleet Management System (FMS) technology that provides for real time visibility on fleet movement and the use of historical data that can be analysed for the purposes of identifying trends and supporting planning initiatives. 6
[36] The FMS is currently used by SEOs operating the Crusher typically for the purposes of: 7
a. scheduling breaks for production operators;
b. monitoring the fleet to align deliveries to the Crusher to fit within operating parameters (or re-allocate those to the urge pile); and
c. scheduling servicing and refuelling of production mobile equipment.
[37] The information recorded by the FMS (which has until recently only been available for the production fleet but which can now be accessed for the whole of the production, rehabilitation, development and blasting fleet) has been stored, but has not been utilised for maximum benefit because it has only been used to obtain immediately available statistics. Such information has been used for the immediate needs of the current shift and has not been analysed to identify trends and/or opportunities for improvement. 8
[38] Alcoa propose that the introduction of the Proposed Dispatch Role in which the incumbent would receive information, interpret information and implement change (without input or direction from other staff personnel) through improved utilisation of the FMS technology. Alcoa also propose that the incumbent in the new role undertake a broad range of tasks, including: 9
a. Real time management of fleet operations for the whole of the rehabilitation, development, blast and production fleet.
b. Real time identification and response to changing production requirements such as a need to change production routes to achieve desired production outcomes, such speed of delivery for blending of different qualities or ore.
c. Real time identification and response to anomalies in fleet activities to be investigated and acted upon such as breakdowns and other disruptions to loading or delivery, slow driving by employees and extended or unplanned breaks.
d. Real time identification and response to changing environmental conditions.
e. Analysis of data to identify trends and develop options for a response to those trends.
f. Development of strategies based on data analysis to improve work efficiency on a short, medium and long term basis.
g. Contributing to, and participating in, management decision making related to fleet management.
h. Undertaking ongoing employee management and supervision (including through allocation of labour, managing poor performance and management of planned and unplanned leave absences).
i. Participating in handover and planning for each shift.
j. Providing coverage for other supervisory personnel.
k. Facilitating emergency response (including by providing input to Emergency Response Officer’s to assist them undertaking their role during emergency situations).
l. Ensuring compliance with mandated obligations applicable to mining activities.
m. Participating in the management of maintenance activities and liaise with the maintenance department.
[39] Alcoa propose that the Proposed Dispatch Role be responsible for activities associated with the operation of the Crusher currently performed by the SEO’s, on the basis that: 10
a. placement of the Dispatch Position incumbent in the Crusher would be less costly and more efficient as the FMS infrastructure is already in place in the Crusher;
b. the time and effort required for the operation of the Crusher has significantly reduced in recent years (which is expected to continue), due to:
a. improved technology which has significantly reduced manual intervention in the operation of the Crusher, such as the adoption of automated ore flow controls in lieu of manually controlled ore flows and the adoption of systems that automate the recording of ore flow instead of manually recording that;
b. improved asset design, such as the movement of hoppers which have reduced the prospect, and occurrence, of blockages caused by large rocks;
c. reduced fleet size, which reduces the complexity of the operation (thereby reducing the time required for monitoring ore transportation);
d. moving away from manual counting of truck and loader loads into the Crusher to the FMS automatically counting loads; and
c. it requires less personnel than simply introducing a new staff Dispatch position in isolation (which was another option considered by Alcoa).
[40] Alcoa say that this will create a role which facilitates the development of a subject matter expert, facilitates the detailed exploration of opportunities for improvement in respect of fleet management and provides a central reference point for the management of personnel operating the fleet at Willowdale minesite (whilst minimising the risk of suboptimal management of the fleet and the personnel responsible for operating the fleet). 11
[41] Alcoa estimate that the Proposed Dispatch Role would involve 70% or more of the incumbent’s time being spent on undertaking the Dispatch functions of the new role and 30% or less of the incumbent’s time actively managing the Crusher. 12
[42] A Dispatch position was previously been implemented at Alcoa’s Huntly minesite. The position was implemented at the Huntley minesite in September 2016 as a staff position without opposition from the AWU. 13
[43] Alcoa say that the Proposed Dispatch Role should be a staff supervisory position not covered by the Agreement.
[44] Alcoa acknowledge that the duties of the Proposed Dispatch Role include duties currently performed by SEO’s operating the Crusher.
[45] Alcoa say that there would be no negative impact on existing employees on the basis that employees covered by the AWU Agreement: 14
a. would still be able to qualify for, and be appointed to, the position of SEO;
b. would still have the opportunity to achieve competency in the operation of the Crusher; and
c. will still be required to operate the Crusher to backfill in the event the incumbent in the Proposed Dispatch Role is absent (due to planned or unplanned absences from work or involvement in other management activities) – without having to pick up the additional responsibilities of the Dispatch Position.
[46] On or about 10 August 2020, a job description for the Proposed Dispatch Role was finalised by Mr Racco with assistance from Ms Nash as a Job Grade 13 position and a copy was provided to the AWU. 15
[47] The AWU has agreed to the content of job description for the Proposed Dispatch Role however the parties are in dispute as to whether the Proposed Dispatch Role will be covered by the Agreement.
Consideration
[48] Section 739(1) of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure. In dealing with the dispute the FWC can not exercise powers limited by the term. 16 If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.17 The FWC may deal with a dispute only on application by a party to the dispute.18
[49] Clause 25 of the Agreement contains a dispute resolution procedure which provides as follows:
“25. DISPUTE RESOLUTION PROCEDURE
25.1 Any dispute relating to a matter arising under this Agreement or the NES will be resolved in accordance with this clause.
25.2 An Employee who is a party to the dispute may appoint another employee or a Union representative for the purpose of the procedure set out in this clause,
25.3 Stages of the dispute resolution process will be as fo11ows:
(a) Initiation stage: In the first instance, the initiator of the dispute must try to resolve the dispute at the lowest possible workplace level, by discussions between the employer and their direct supervisor.
(b) Stage one: If the dispute is not resolved, stage one will be scheduled to occur within two working days of the conclusion of the initiation stage (or any other period agreed by the Employee and the Company). The dispute will be the subject of discussions between the Employee(s) the next level of Company line management and the Employee's representative if requested by the affected Employee(s).
(c) Stage two: If the dispute is not resolved, stage two will be scheduled to occur within five working days at the conclusion of stage one (or any other period agreed by the Employee and the Company). The dispute will be the subject of discussions between the Employee(s), appropriate Company senior site representatives and, if requested by the Employee(s), the Employee's representative.
(d) The Fair Work Commission stage: If the dispute is not resolved, the initiator of this dispute, or their representative, may refer the matter to the Fair Work Commission. This referral must occur within ten working days at the conclusion of stage two, or the matter will be deemed to be no longer in dispute.
(i) The Fair Work Commission will, in the first instance, attempt to resolve the dispute through conciliation.
(ii) If the dispute is unable to be resolved through conciliation with the Fair Work Commission the initiator of the dispute, or their representative, may decide to have the Fair Work Commission arbitrate the dispute. The initiator of this dispute, or their representative, must refer the dispute for arbitration to the Fair Work Commission within ten working days of the conclusion of conciliation, otherwise the matter will be deemed to be no longer in dispute.”
[50] There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 25.1 of the Agreement.
[51] The parties agree that the AWU has complied with all the procedural steps contained in clause 25.
[52] I am satisfied that the AWU has standing to make the Application and that I have the jurisdiction to determine the dispute.
[53] Clause 3 of the Agreement sets out its coverage and application:
“3. COVERAGE AND APPLICATION
3.1 This Agreement covers and applies to Alcoa of Australia Limited ("the Company"), 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 ("Employees") and the Australian Workers' Union ("the Union"), provided that the requirements of s 53(2) of the Fair Work Act 2009 (Cth) have been met (collectively referred to as "the Parties").
3.2 For the purpose of this Agreement, the Company's WA Operations means the Company's:
(a) bauxite mining operations and exploration activities at its Huntly and Willowdale mines ("Bauxite Operations"); and
(b) alumina refining operations at its Kwinana, Pinjarra and Wagerup refineries, including the Bunbury Port ("Alumina Operations").”
[54] Previous iterations of the Agreement set out the job descriptions in full in the text of the Agreement. Notwithstanding that clause 3.1 provides that Appendix 8 contains job descriptions. In fact the table in Appendix 8 now only contains a list of job titles.
[55] Relevantly Appendix 8 lists the following job titles for Willowdale minesite:
a. Mining Operator;
b. SEO
c. Senior Equipment Carer – Fixed Plant & Equipment;
d. Mineworker;
e. Mine Site Trainer; and
f. AGL.
[56] A job description for each of these roles, other than for an AGL, are now ‘stored’ in a controlled document system managed by Alcoa. All of these job descriptions are cast in general and high level terms and do not particularise with any specificity the actual duties to be performed by the employees. 19
[57] Clause 13 of the Agreement deals with the introduction of new positions:
“13. JOB DESCRIPTIONS
13.1 General
All job descriptions under this Agreement are listed in Appendix 8 and contained within the Company's controlled document system.
13.2 Altering job descriptions
Where the Company intends to alter a job description referred to in Appendix 8, the Company will consult with affected employees in an attempt to reach agreement on the changes prior to introduction. If no agreement is reached, the dispute resolution procedure in clause 25 will be used to resolve the matter. If the relevant Employees appoints a representative for the purposes of consultation and the Employees advise the Company of the representative's identity, the Company will also consult with the representative.
13.3 New job descriptions
(a) New job descriptions applicable to work carried out under the job descriptions covered by this Agreement may be introduced by consultation and agreement between the Company and the relevant employees and assessed under a relevant evaluation system. If the relevant Employees appoints a representative for the purposes of consultation and the Employees advise the Company of the representative's identity, the Company will also consult with the representative.
(b) If no agreement is reached, the dispute resolution procedure in clause 25 will be used to resolve the matter. The Company will not implement a new job description until the dispute resolution procedure is finalised.
(c) New job descriptions will not, in relation to Employees covered by this Agreement, undermine any job description in existence at the commencement of this Agreement.
(d) New job descriptions will be added to the Company's controlled document system.”
[58] Clause 13.2 of the Agreement is not applicable in the present circumstances as there is no proposal on the part of Alcoa to vary any existing job descriptions.
[59] The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union 20 at [15] and [16] of its decision, confirmed the principles of interpretation for the interpretation of enterprise agreements as follows:
“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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.”
The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”
[60] The principles of interpretation applicable to enterprise agreements are well-settled. The terms are to be given their plain and ordinary meaning, read within the instrument as a whole and in light of the instrument’s industrial context and purpose, and against the legislative background against which the instrument was made and is to operate. It is justifiable to read the agreement to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal will not adopt a narrow or pedantic approach to the interpretation of enterprise agreements. 21
[61] To determine context and purpose, it is appropriate to have regard to the history and origins of the disputed provisions. 22
[62] Clause 13 provides that new job descriptions applicable to work carried out under the job descriptions covered by the Agreement may be introduced by consultation and agreement between Alcoa and the relevant employees, and, provided that it does not undermine any job description in existence at the commencement of the Agreement, the new job description is evaluated and it is added to the company’s controlled document system.
[63] The conditions for the introduction of new positions are found in cause 13.3 as set out above. There is no dispute that the content of the new job description for the Proposed Dispatch Role has been agreed between the Company and the relevant employees as represented by the AWU. 23 Nor is there any dispute that the new job description has been properly evaluated.24 There is no suggestion that the new job description will not be properly entered on Alcoa’s controlled document system.
[64] It is necessary to determine therefore whether:
a. The new job description for the Proposed Dispatch Role is applicable to work carried out under the job descriptions covered by the Agreement.
b. The new job description undermines any job description in existence at the commencement of this Agreement.
[65] Alcoa dispute that the Agreement can cover a new job description even if it is held that the new job description is applicable to work carried out under the job descriptions covered by the Agreement and that the new job description does not undermine any existing job description. I deal with that submission later in my decision.
Is the new job description for the Proposed Dispatch Role applicable to work carried out under the job descriptions covered by the Agreement?
[66] Given the level of detail contained in the job descriptions there are some duties described which are generic to many positions not historically falling within the scope of the Agreement.
[67] It is acknowledged by the parties that it was not their intention that the existence of a minor commonality between a new job description and that of a job description covered by the Agreement would be sufficient to bring the position within the scope of the Agreement where the balance of the duties were unrelated to the duties of employees covered by the Agreement.
[68] Similarly it is acknowledged that clause 13.3 of the Agreement was not intended to be used to expand the scope of the Agreement to areas of work traditionally covered by other agreements creating demarcation disputes or to work typically not covered by agreements or awards such as management roles.
[69] It cannot be that the intention of the clause 13.3 was only to allow existing duties to be reallocated between existing roles. This could be achieved by clause 13.2 in which case clause 13.3 would have no work to do.
[70] That clause 13.3 contemplates the creation of new roles which might include duties not currently performed by employees covered by the Agreement is consistent with other provisions of the Agreement which contemplate the duties of employees covered by the Agreement being expanded during the term of the Agreement. See for example: 25
a. Clause 4(b) “General Obligations” contains an undertaking by both Alcoa and the Agreement covered employees to “organise work in a fully flexible manner… and in accordance with the Agreement”.
b. Clause 4(c) “General Obligations” requires employees covered by the Agreement to “undertake any jobs or duties, subject to their level of skill, knowledge and competence and any licensing requirements, without demarcation”.
c. Clause 12 – Scope of Work – which provides that: ‘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 “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
d. Clause 14 - Skill acquisition and training which provides that “... 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.”
[71] To fall within the scope of clause 13.3 the new job description when viewed as a whole must be applicable to work carried out under the job descriptions covered by the Agreement when viewed as a whole.
[72] The job titles set out in Appendix 8 have allocated to them Job Grades ranging from Job Grade 10 to Job Grade 13. The Proposed Dispatch Role has been assessed as a Job Grade 13 so it falls within the range of Job Grades covered by the Agreement.
[73] All of the job descriptions are cast in general and high-level terms, and do not particularise with any specificity the actual works tasks to be performed by the employees.
[74] It is nevertheless apparent from the job descriptions that, in broad terms, the body of work underlying the job descriptions which is accomplished and completed by the employees covered by the Agreement individually and/or collectively is the exploration for and mining of bauxite at the Willowdale mine, and the rehabilitation of mined out areas.
[75] The only existing job description containing details of the duties required by the role that contemplates the performance of duties common with that of the Proposed Dispatch Role is the job description for SEO’s. Both the SEO job description and the job description for the Proposed Dispatch Role contemplate the operation of the Crusher and the tasks associated with the control of the hauling and crushing function.
[76] Alcoa acknowledges that the Proposed Dispatch Role involves duties that are currently performed by SEO’s, specifically the operation of the Crusher. However, Alcoa point out commonality of duties across employees covered by the different enterprise agreements and by agreement covered employees and staff is not unusual. By way of example Alcoa points out that employees classified as Mine Workers and covered by the AWU Agreement may be responsible for the performance of servicing and maintenance of fixed and mobile mining equipment. This involves the performance of the same work as may be performed by a Mechanical Tradesperson covered by the AMWU Agreement, who is responsible for the maintenance and repair of mechanical plant and equipment in the Respondent’s mining operations. 26
[77] Alcoa submit that the question as to whether the new job description for the Proposed Dispatch Role is applicable to work carried out under the job descriptions covered by the Agreement should be determined by reference to the principal purpose test.
[78] The principal purpose test was explained by the AIRC Full Bench in Carpenter v Corona Manufacturing Pty Ltd 27 in the following way:
“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.”
[79] The AWU submit that the principal purpose test has utility when an employee performs mixed duties some of which obviously falling within the coverage of the instrument or classification under consideration and others which do not. 28
[80] The AWU argue that it is unnecessary to apply the principal purpose test because the duties of the Proposed Dispatch Role fall within the scope of existing job descriptions covered by the Agreement.
[81] To the extent that reference is had to the principal purpose test the AWU submit that the application of the test would reveal that the principal purpose of the Proposed Dispatch Role is to perform duties applicable to work carried out under the job descriptions contained in the Agreement. In the alternative the AWU submit that if the principal purpose test is relevant, it is not determinative and what is of more significance is the proper construction of the Agreement.
[82] Alcoa says that principal purpose of the Proposed Dispatch Role is to provide for a first line of supervision for employees covered by the Agreement taking responsibility for:
a. the oversight of fleet operations across the rehabilitation, development, blast and production workgroups at the Willowdale minesite;
b. the enforcement of expected standards of performance; and
c. engage in decision making/problem solving for the improved operation and efficiency of the mobile fleet and the employees operating the mobile fleet.
[83] Alcoa says that quantitatively and qualitatively, the tasks to be performed in the Proposed Dispatch Role significantly depart from the tasks performed by SEOs in the following ways: 29
a. the major and substantial proportion of the tasks to be performed in the Proposed Dispatch Role are new tasks that are not performed any Alcoa employee, or are tasks that currently performed by Group Leaders or are tasks recognised as staff responsibilities at the Huntly minesite.
b. the tasks to be performed in the new role which are not currently performed by SEO’s whilst working in the Crusher will typically take more than 50% of each 12 hour shift to complete; and
c. the tasks currently undertaken by SEO’s whilst working in the Crusher will typically require significantly less than 50% of the work time of the incumbent in the Proposed Dispatch Role.
[84] Alcoa submit that the difference in tasks demonstrates that the principal purpose of the Proposed Dispatch Role is not the performance of the work currently performed by employees in the SEO Position. Rather Alcoa submit that the principal purpose of the Proposed Dispatch Role is to perform work of a ‘staff’ or ‘management’ nature.
[85] In support of the assertion that the principal purpose of the Proposed Dispatch Role is to discharge ‘staff’ or ‘management’ duties Alcoa point to:
a. The job assessment for the new role the outcome of which was that the new position was graded as a Job Grade 13. 30
b. The similarities between key duties of the Proposed Dispatch Role and the position purpose statement contained in the job description for Group Leaders (a staff role). 31
c. A dispatch position existing at Huntly minesite is a staff role and that the decision that the position be made a staff role was not challenged by the AWU at the time the position was created.
[86] Alcoa submit that in these circumstances it ought to be concluded that the Agreement does not cover, or apply to, that position. 32
[87] The primary purpose or function performed by the employees covered by the Agreement and employed at Willowdale minesite individually and/or collectively is the exploration for and mining of bauxite at the Willowdale mine, and the rehabilitation of mined out areas.
[88] As plant and equipment become automated these tasks increasingly become more complex co-ordination and computer-based tasks rather than less sophisticated physical or manual operations. No longer is a staff role easily distinguished from a ‘wages’ role based on the duties being computer based rather than physical, by the complexity of the tasks undertaken, that the role requires co-ordination of equipment or personnel or that the role contains autonomy.
[89] The job description for the Proposed Dispatch Role reveals that the position is intended to have a central and coordinating role in the exploration for, and mining of, bauxite at the Willowdale mine, and the rehabilitation of mined out areas. The job description does not contemplate any work that is not practically directly related or relevant to exploration for and mining of bauxite at the Willowdale mine, and the rehabilitation of mined out areas.
[90] The Proposed Dispatch Role is not an ancillary, indirect or non-operational role in the way that administrative, accounting, safety, or supplies roles are. The proposed role is not exclusively managerial or supervisory in nature and includes operational tasks such as the operation of the Crusher.
[91] The incumbent in the Proposed Dispatch Role will be located in the Crusher rather than the administrative building where many other staff are based.
[92] The new role has been assessed as a Job Grade 13 which is within the range of job grades covered by the Agreement. It is not objectively graded at a level of seniority and complexity not typically covered by the Agreement or other ‘blue collar’ agreements which apply at Willowdale.
[93] The Proposed Dispatch Role will be operationally located within the Production workgroup and will report up to and be subordinate to a Job Grade 15 Production Supervisor. 33
[94] At the Willowdale, the demarcation in the organisational and hierarchical structure, between the managerial and senior supervisory “staff”, and between the Agreement covered employees, is and has been as follows:
a. the Group Leaders (also known as Supervisors) at Job Grade 15 and above them, the Superintendents and Mine Managers, are employed as “staff” and are not covered by the Agreement; and
b. the AGLs (also known as Assistant Supervisors) at Job Grade 13 and below them, the other employees listed in the relevant table in Appendix 8 to the Agreement, are not employed as “staff” and are covered by the Agreement as “wages” employees.
[95] This structural arrangement follows the underlying Award which covers advanced aluminium worker “wages” employees in highly technical and specialist roles including those engaged in junior supervisory positions, but not “staff” employees engaged in managerial or senior supervisory positions.
[96] The job description for the Proposed Dispatch Role provides that the incumbent will report to a ‘Supervisor’. Therefore, the role cannot be characterised as a senior supervisory position beyond the intended scope of the Award.
[97] The Proposed Dispatch Role uses the term ‘co-ordinator’ in the job title in the same way as it is used in the job title of the Training & Development Co-Ordinator (an Agreement covered position). The use of the term ‘co-ordinator’ in the job title can be contrasted with the use of the terms ‘Superintendent’ or ‘Group Leader’ used for staff roles at Willowdale.
[98] While the dispatch role is performed by staff at Huntly I note Mr Racco’s evidence that the staff role at Huntly is very different to that proposed at Willowdale because of the difference in size of the mines and the complexity of the mining. For example, Huntly has more than double the number of production personnel and mobile plant to Willowdale. 34
[99] In fact, due to the complexity and workload of the staff role at Huntly, Crusher duties contemplated to be performed by staff in the new role at Willowdale are not performed by the incumbent of the staff dispatch role at Huntley. 35 This is significant in two ways. The decreased complexity in the role and the inclusion of the Crusher duties means that Proposed Disptach Role at Willowdale bears greater similarity to the Agreement covered work performed by the SEO’s in the Crusher and has less of the complexity associated with ‘white collar’ roles.
[100] I also note that the dispatch role in Huntly was introduced without challenge by the AWU and therefore the question of coverage was not tested at that time.
[101] The fact that a role involves the discharge of supervisory, co-ordination or managerial functions does not preclude the role from one which might be covered by the Agreement. The SEO’s performing Crusher duties currently undertake tasks which involve the direction and coordination of equipment, tasks and employees. 36
[102] This is consistent with classifications contained in the underpinning Award against which Alcoa ‘mapped’ the job titles contained in the Agreement at the time it submitted the Agreement for approval by the FWC.
[103] Relevantly, the “Aluminium Worker Grade 5 – Advanced” classification read as follows:
“B.1.6 Aluminium Worker Grade 5—Advanced
(a) An employee at this grade performs tasks which require in-depth skill or knowledge, or an integration of a broad range of skills, to either:
(i) a high degree of proficiency across the complete range of plant, equipment, machinery and process functions and systems in their operating area. They are expected to take a role in decision making, problem solving and improvement initiatives and can work effectively without supervision. To do so, the employee must demonstrate and use well developed interpersonal, communication and supervision skills to provide support, guidance and assistance to other employees and the team; or
(ii) that require the completion of a post trade certificate appropriate for this level or that involve the acquisition of equivalent competencies in a relevant trade by other means (such as in plant training or on the job experience).
(b) At this grade, employees:
(i) are expected to contribute to the planning, prioritizing and scheduling of work activities;
(ii) are capable of preparing reports and analysing equipment data;
(iii) may be required to plan and undertake complex multiple isolation and tagging procedures in preparation for group access; and
(iv) assist with the development and delivery of more formal training.”
(Underlining Added)
[104] There is no evidence to suggest that Agreement covered employees currently performing Crusher duties would not be capable or competent to perform the duties proposed in the new role.
[105] Many of the features of the new role, which Alcoa rely on to differentiate it from the tasks currently performed by the SEO’s while allocated to the Crusher, are extensions of tasks already performed by the SEO’s. For example, the extension of responsibilities to additional work groups or the regular performance of tasks currently performed on an ad-hoc or informal basis by the SEO’s.
[106] For example, the monitoring and coordinating of fleet activities presently performed by the SEO’s will be extend to the Rehabilitation and Development workgroup in the Proposed Dispatch Role. The SEO operating the Crusher currently conducts informal handovers concerning operations issues with the Production Supervisor or other Crusher Operators. In the Proposed Dispatch Role the incumbent will conduct formal handovers concerning operational issues with the incumbent from the previous shift. 37
[107] Furthermore, comparing the duties of the Proposed Dispatch Role only with the duties of SEOs performing Crusher duties understates the true scope of the Agreement. The Agreement expressly contemplates Agreement covered employees performing supervisory and co-ordination functions.
[108] For example, classifications in the Agreement include Training & development Co-Ordinator, Area Process Specialist and, relevantly, a currently unused classification described as an Assistant Group Leader. 38 This is consistent with the underpinning Award, which contemplates in its coverage supervisory positions which are not ‘senior’ supervisory positions.39
[109] It is apparent from the job description of the Area Process Specialist that the focus of that 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. The Area Process Specialist is involved in planning and acts as an interface between the relevant Group Leader and other Agreement covered employees and steps up into the Group Leader role in the Group Leader’s absence. The Area Process Specialist is grouped together with the Manager and Supervisor/Group Leader in the refinery organisation chart, but nonetheless a ‘wages’ employee covered by the Agreement.
[110] A job description has not been developed for the role of AGL however it is agreed by the parties that it would be likely to be a Job Grade 13 position. The same Job Grade at which the Proposed Dispatch Role has been assessed. This can be contrasted with the Job Grade 15 of Group Leaders.
[111] Whilst there are currently no incumbents in the role of AGL the job description for SEO’s provides that the SEO reports to the AGL who in turn reports to the Group Leader. Given that SEO’s report to AGL’s by implication an AGL must be a role of greater seniority and/or complexity than that of a SEO.
[112] It is clear that the parties contemplated that the AGL would discharge supervisory or managerial responsibilities. According to Ms Nash: 40
“4. The reason for agreement not being reached on the Assistant Group Leader job position description is the refusal of the AWU and employees covered by the AWU Agreement to accept the inclusion of statements of responsibility for performance management of other personnel covered by the AWU Agreement.”
[113] This is consistent with the role being described as a ‘Leader’ rather than an ‘Co-Ordinator’ and the position being described as an ‘assistant’ to the management role of Group Leader.
[114] It appears that the key reason why Alcoa has sought to characterise the Proposed Dispatch Role as a staff role is the same concern with respect to the capacity of Agreement covered employees to discharge supervisory responsibilities that have hampered the development of a job description for the AGL role. See for example Ms Nash’s evidence that: 41
“26. I believe that the role needs to be undertaken by a staff employee due to the nature of the work that is to be performed by the incumbent, particularly the supervision, direction of and leave management for AWU Agreement covered employees and, where required, the performance management of the same.
27. If the Operational Dispatch and Crusher Coordinator role was not classed, and treated, as a staff role, it is likely that the supervision, direction, leave management and performance management of AWU Agreement covered personnel would not be undertaken to the expected standard and/or that it would create an unacceptable risk that the incumbent employees would be subjected to criticism and adverse behaviour by other AWU Agreement covered employees (in response to them undertaking those duties).
I genuinely believe this to be a serious risk.
28. I am aware, through my employment with Alcoa in the HR function, there has been a very strong historical opposition over an extended period of time, on the part of the Australian Workers' Union and on the part of AWU Agreement covered employees generally, to AWU Agreement covered employees being responsible for the performance management of fellow AWU Agreement covered employees.
I have no reason to believe that such opposition does not continue and, as a consequence, consider that the Operational Dispatch and Crusher Coordinator role must be a staff position - which would resolve risks associated with AWU Agreement covered personnel being responsible for supervision and performance of all aspects of the role.”
[115] It would appear from this evidence that Alcoa clearly contemplated that scope of duties covered by the Agreement potentially extending to the discharge of supervisory and managerial functions.
[116] To the extent the incumbent in the Proposed Dispatch Position will have supervisory responsibilities, those are in the nature of acting as an interface between senior supervisors and management, and more junior Agreement covered employees.
[117] The AWU set out a helpful comparison of the duties of the SEO while operating the Crusher with the proposed duties of associated with the Proposed Dispatch role in the Applicant’s Closing Submissions. These submissions identify significant commonality between the duties of both roles based on the relevant job descriptions and the evidence of the witnesses. 42
[118] There is no evidence or no assertion that the SEO’s currently operating the Crusher would be incapable of performing the technical aspects of the Proposed Dispatch Role. Rather it appears to be Alcoa’s concerns with respect to their historical resistance to discharging supervisory responsibilities which is the driving force behind Alcoa’s efforts to characterise, and to have characterised, the Proposed Dispatch Role as a staff role rather than an Agreement covered role.
[119] While I found all of the witnesses to be credible and earnest in their evidence I suspect the reality of what currently occurs and might occur in the future falls and will fall somewhere between the two extremes of the opposing witness evidence.
[120] While Mr Mitchells superior skills and experience are clearly acknowledged and valued by Alcoa I suspect that Mr Mitchell’s evidence as to how much time he spends in performing each task required of him in the Crusher, how frequently he performs those tasks, the complexity of those tasks and extent to which those tasks involve co-ordination of plant, equipment and personnel may somewhat overstate the position. However equally I suspect that the Alcoa witness evidence understated these things. Critically, based on the evidence of the parties and the inspections which I conducted, there appears to be a significant gap between Mr Rocco’s aspirations for the new role and what the currently implemented technology will allow.
[121] This has significant consequences for the amount of time the incumbent in the new role will have available at least initially to perform duties in addition to those duties currently performed by the SEO operating the Crusher.
[122] I am not satisfied that scope presently exists for the incumbent of the Proposed Dispatch Role to undertake such a large number of additional tasks that the principal purpose of the Proposed Dispatch Role becomes different the principle purpose of roles currently performed by Agreement covered employees or roles which the Agreement provides the scope to be performed by Agreement covered employees.
[123] It may be the case that the Proposed Dispatch Role will evolve in the future to become one which is not covered by the Agreement but I am not satisfied that the role in the manner it appears that it will be performed at this point in time is one which is not applicable to work carried out under the job descriptions covered by Agreement.
Does the new job description undermine any job description in existence at the commencement of this Agreement?
[124] A new job description which is applicable to work carried out under the job descriptions covered by the Agreement is prohibited by clause 13 if the new job description undermines any job description in existence at the commencement of this Agreement.
[125] The AWU identify the position of SEO as the only position in existence at the Commencement of the Agreement which might be undermined by the new job description for the Propose Dispatcher Position.
[126] Alcoa submit that the new job description for the Proposed Dispatch Role will not undermine the existing the position of Senior Equipment Operator because:43
a. such new job description contemplates the operation of various equipment in addition to the operation of the Crusher;
b. there will be no additional impediments or difficulties for employees covered by the Agreement to obtain the qualifications necessary for appointment to the position of Senior Equipment Operator;
c. there will be no adjustment by Alcoa to the number of employees employed in the position of Senior Equipment Operator; and
d. there will be an ongoing need for Agreement covered employees to undertake work on the Crusher pursuant in the role of Senior Equipment Operator to backfill in the event the Proposed Dispatch Role incumbent is absent (e.g. such as due to planned or unplanned absences from work or involvement in other management activities).
[127] In the circumstances I am satisfied that the Proposed Dispatch Role will not undermine any job description in existence at the commencement of this Agreement.
Can a person employed in a new job description introduced pursuant to clause 13.3 of the Agreement be covered by the Agreement?
[128] Alcoa submit that a person employed in a new position introduced pursuant to clause 13.3 of the Agreement can not be covered by the Agreement. Alcoa submit that the purpose of clause 13.1 is simply to impose upon Alcoa a consultation obligation in the event that it proposes to create a new role which contains duties typically carried out by employees covered by the Agreement. The purpose being to prevent Alcoa artificially creating redundancies in the Agreement workforce.
[129] In support of this submission Alcoa argue that nothing in the Agreement gives employees covered by the Agreement exclusive ownership of the work carried out in the roles listed at Appendix 8 of the Agreement. Alcoa also points out that the scope of the Agreement is defined by the job descriptions contained in Appendix 8. Alcoa argues that clause 13.3 can not have been intended to contemplate an extension of the scope of the Agreement (by the addition of additional job descriptions) because such roles could not have been foreseen and hence could not have been genuinely agreed to by employees at the time they voted on the Agreement.
[130] The suggestion that Alcoa would have agreed for the organisation of the work of its managerial and senior supervisory staff and its mechanical trades and electrical trades employees covered by separate enterprise agreements to be the subject of consultation and potential veto by the Agreement covered employees is industrially and commercially counterintuitive. This is particularly so in light of the protracted industrial disputation from which the Agreement was born.
[131] As the AWU concedes the work arrangements of such other employees are not and should not be of any legitimate concern to the Agreement covered employees.
[132] Similarly, the manner in which the clauses of the Agreement are organised is inconsistent with the construction of clause 13.3 proposed by Alcoa. Clause 13.3 is grouped with clause 11, clause 12 and clause 14, each of which, like clause 4 of the agreement, contemplate location change, expanding and varying duties and functions, and equipping employees covered by the Agreement with more advanced skills and training to undertake more advanced duties and functions and progress through Alcoa’s pay structure.
[133] If the parties had intended clause 13.3 to operate as Alcoa contends, one would have expected the parties to group clause 13.3 with the part of the Agreement which prescribes rights and obligations in respect to matters which may have indirect effect on the employment of agreement covered employees, namely, clauses 28 (Consultation), 29 (Labour Hire and Contractors) and 30 (Staffing).
[134] Furthermore, the express reference in clause 12 to “all the job descriptions below” must be a reference to clause 13 - Job Descriptions (which is chronologically, and literally, ‘below’ clause 12) and the pre-existing (13.1), altered (13.2) and new (13.3) job descriptions referred to therein. This is another powerful contextual indicator that new job descriptions created pursuant to clause 13.3 were intended to be covered by the Agreement.
[135] On Alcoa’s interpretation, the reader must treat the phrase in clause 12 “all the job descriptions below” as a reference to only some of the job descriptions below (Alcoa says only pre-existing (clause 13.1) and altered (clause 13.2) job descriptions are covered by the Agreement, but not new job descriptions (clause 13.3)). Alternatively, the reader must treat the phrase “all the job descriptions below” as a reference to the pre-existing job descriptions (clause 13.1) altered job descriptions (clause 13.2) and the new job descriptions in clause 13.3. However, this interpretation of the meaning of clause 12 would result in Alcoa being empowered to direct employees covered by the Agreement to perform work in job descriptions both under the Agreement and outside of the Agreement.
[136] In addition, the reference to “applicable to work carried out under the job descriptions covered by this Agreement” in clause 13.3(a) is comparable to the language in clause 3.1, which defines the coverage of the agreement as extending to employees “who carry out the work in the job descriptions set out in the table in Appendix 8.” This is a further strong contextual indicator that clause 13.3, and all of the references to new job descriptions therein, refer to job descriptions to be covered by the Agreement.
[137] If clause 13.3 was only concerned with consultation about the creation of new job descriptions for employees not covered by the Agreement, the inclusion of the obligation for the new job description to be “assessed under a relevant evaluation system” in clause 13.3(a) would have been unnecessary. The inclusion of clause 13.3(d) would have also been unnecessary. The grading of employees not covered by Agreement and the co-location of job descriptions for such other employees with those of Agreement covered employees within the controlled document system is not and could also not be of any legitimate concern to Agreement covered employees.
[138] The assertion that the parties did not contemplate the introduction of new job descriptions into the Agreement can not be sustained when the evolution of the Agreement is studied.
[139] A review of industrial regulation at Willowdale reveals that the Agreement replaced a succession of prior agreements which historically contained detailed job descriptions for every agreement covered role. There was no mechanism in the prior agreements to alter these job descriptions or introduce new job descriptions. That this would create significant barriers to the efficient organisation of work during the life of an agreement is unsurprising and demonstrated by multiple disputes brought before the FWC.
[140] To address this inflexibility the Agreement removed 200 pages of job descriptions and replaced those job descriptions with a three page list of job titles that were to be covered by the agreement (See Appendix 8 of the Agreement) and inserted clause 13. The underlying job descriptions are preserved by reference into the Agreement and by inclusion in Alcoa’s controlled document system.
[141] Clause 13 provides an opportunity for Alcoa to alter job descriptions and introduce new job descriptions applicable to work carried out under the job descriptions to be covered by the Agreement, subject to a process of checks and balances involving consultation and access to the Agreement’s dispute resolution procedure.
[142] Clause 13.3 is an operational and industrial necessity because the parties retained their historical practise of defining the scope of the Agreement by reference to specific job titles. It is consistent with those terms of the Agreement which seek to have employees work according to skill and operational need rather than ‘working to rule’ as set out in the job descriptions.
[143] It is ironic that Alcoa would now seek to suffocate this operationally critical flexibility so soon after it was acquired.
[144] I do not accept that new roles could not have been foreseen and on that basis can not have been genuinely agreed to by employees at the time they voted on the Agreement.
[145] It can not be that the intention of clause 13.3 was only to allow existing duties to be reallocated between existing roles. This could be achieved by clause 13.2 in which case clause 13.3 would have no work to do. This interpretation is consistent with other provisions of the Agreement which contemplate the duties of employees covered by the Agreement being expanded during the term of the Agreement. 44
[146] The possibility of new positions being created during the life of the Agreement is unambiguously foreshadowed by clause 13.3. Employees who voted in favour of the Agreement therefore agreed that new roles could be created during the life of the Agreement.
[147] I do not accept that the inclusion of clause 13.3 in the Agreement means the scope of the Agreement is uncertain. Rather clause 13.3 clearly restricts the scope of the Agreement to new positions requiring the performance of work of the nature carried out in accordance with the job descriptions contained in the Agreement as at registration.
Conclusion
[148] There is no dispute that the content of the new job description for the Proposed Dispatch Role has been agreed between the Company and the relevant employees as represented by the AWU. 45 Nor is there any dispute that the new job description has been properly evaluated.46 There is no suggestion that it will not be properly entered on Alcoa’s controlled document system.
[149] I am satisfied that the new job description for the Proposed Dispatch Role is applicable to work carried out under the job descriptions covered by the Agreement.
[150] I am satisfied that the new job description does not undermine any job description in existence at the commencement of this Agreement.
[151] I am satisfied that a person employed in a new job description introduced pursuant to clause 13.3 of the Agreement can be covered by the Agreement having regard to the terms of the Agreement (including clauses 3.1 and 13.3 of the Agreement).
[152] I therefore find that a person employed in the Proposed Dispatch Role would be covered by the Agreement.
DEPUTY PRESIDENT
Appearances:
D Rafferty for the Applicant
M Vallence for the Responded
Hearing details:
22 June 2021
12 August 2021, 13 August 2021 and 7 October 2021
Final written submissions:
1 November 2021
Printed by authority of the Commonwealth Government Printer
<PR730880>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book, 163.
3 Digital Court Book, 163-164.
4 Digital Court Book, 173.
5 Digital Court Book, 177.
6 Digital Court Book, 164-166.
7 Digital Court Book, 165.
8 Digital Court Book, 165.
9 Digital Court Book, 165-166.
10 Digital Court Book, 145-146, 176.
11 Digital Court Book, 145, 166.
12 Digital Court Book, 169.
13 Digital Court Book, 164.
14 Digital Court Book, 169.
15 Digital Court Book, 5, 92-95.
16 S.739(3) of the Fair Work Act 2009 (Cth).
17 Ibid S.739(5).
18 Ibid S.739(6).
19 Digital Court Book, 5.
20 [2021] FWCFB 1903.
21 See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].
22 Short v FW Hercus Pty Ltd (1993) FCR 511 at 518; Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137 at [11].
23 Digital Court Book, 120.
24 Digital Court Book,179, PN1665.
25 Digital Court Book, 6-85.
26 Digital Court Book, 147-148.
27 (2002) 122 IR 387
28 Broadspectrum Limited t/a Broadspectrum v United Voice[2017] FWCFB 3202 at [31].
29 Digital Court Book, 347-348.
30 Digital Court Book, 179.
31 Digital Court Book, 363.
32 Digital Court Book, 160.
33 Digital Court Book, 168, 92; Transcript of 13 August 2021at PN1544-PN1554, PN1583-PN1596.
34 Digital Court Book, 167.
35 Digital Court Book, 168.
36 See for example Digital Court Book, 351-352.
37 Digital Court Book 166; 355. Mitchell Statement at [45.1], Digital Court Book, 139 - 140. See also Transcript of 12 August 2021at PN412-PN415; PN797-PN798; PN810-PN813; PN830-PN831 Digital Court Book 354.
38 Digital Court Book, 84.
39 Aluminium Industry Award 2010 at cl.4.3.
40 Digital Court Book, 367.
41 Digital Court Book, 179 - 180.
42 Applicants Closing Submissions filed 25 October 2021 at [59]-[95].
43 Digital Court Book, 157-158.
44 See for example clauses 4, 12 and 14 of the Agreement.
45 Digital Court Book, 120.
46 Digital Court Book,179, PN1665.
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