Australian Workers' Union, The v Alcoa World Alumina Australia

[2017] FWC 379

[2017] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Workers' Union, The
v
Alcoa World Alumina Australia
(C2016/5298)

DEPUTY PRESIDENT BINET PERTH, 8 MARCH 2017

Application to deal with a dispute – Entitlement to Walk Time – Consultation – No extra claims – Application dismissed

[1] The Australian Workers' Union (AWU) filed an application (Application) with the Fair Work Commission (FWC) to deal with a dispute with Alcoa World Alumina Australia (Alcoa)in accordance with the dispute settlement procedure contained in clause 19 of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (Agreement).

[2] The dispute concerns the amount of ‘walk time’ the twelve Trade Assistants (TAs) employed in the Main Workshop at Alcoa’s Pinjarra refinery (Workshop) are entitled to (Dispute).

[3] ‘Walk time’ is a reference to the practise of some Agreement covered employees (including the TAs) being allowed by their Group Leaders to leave their work area (usually their crib room, where employees undertake their toolbox meetings) prior to the scheduled end of their shift in order to walk or drive to the various security gates which control entry and egress to Alcoa’s Pinjarra Refinery (Walk Time).

[4] The AWU assert that the TAs should be released from their work area twelve minutes prior to the end of their shift. Alcoa dispute this.

[5] The Application was not able to be resolved at a conciliation conference held on 12 September 2016 nor after subsequent email correspondence between the parties.

[6] Clause 19(e) of the Agreement allows for an application to be made to the FWC to be referred for arbitration within 14 days of conciliation of the application. On 17 October 2016, Mr Graham McLauchlan, Human Resources Consultant at Alcoa, (Mr McLauchlan) enlivened the arbitral powers of the FWC by advising Chambers that Alcoa considered it highly unlikely that both parties could reach a mutually acceptable resolution in relation to the Dispute, and for this reason a further conference would not be beneficial and directions should be issued to parties detailing the conduct of the matter in preparation for Hearing.

[7] The Application was listed for Hearing on 28 November 2016 for determination of the Dispute. Directions were issued to the parties on 24 October 2016 (Directions) in which the parties were directed to file with the FWC and serve on each other their outlines of submissions, witness statements, copies of authorities and any documents on which they relied.

[8] The Directions directed any party who sought to be represented by a lawyer or paid agent at the Hearing to make written submissions to Chambers to this effect addressing the provisions of section 596(2) of the Fair Work Act 2009 (Cwth) (FW Act). On 21 November 2016 Mr Warren Milward of Heelan & Co. Industrial Relations and Management sought leave of the FWC to appear for Alcoa at the Hearing. No opposition to this request for leave was made by the AWU. As a matter of fairness between the parties and to enable the matter to be dealt with more efficiently, having regard to section 596(2) of the FW Act, Alcoa was granted leave to be represented by Mr Milward.

[9] Mr Neville Wilson, an AWU Shop Steward and a TA (Mr Wilson) gave evidence on behalf of the AWU. Mr Ramon Horton, WAO Workshop & Pinjarra Stores Manager (Mr Horton), Mr McLauchlan and Ms Narelle Macfarlane, Talent Manager gave evidence on behalf of Alcoa (Ms Macfarlane).

Background

[10] There is nothing in the Agreement which explicitly permits employees to leave their work area prior to their scheduled finish time.

[11] However the parties agreed that since before the commencement of the Agreement Alcoa has permitted the TAs to leave their work area 6 minutes prior to the rostered finish time. 1 Alcoa also concede that it permits other Agreement covered employees at the Pinjarra Refinery to leave their work area twelve minutes prior to their rostered finish time.2 Despite this practise Alcoa assert it is entitled to require the Employees to remain in their designated work area from their designated start time, until their designated knock-off time. Alcoa say that they are proposing to phase out the practise of Walk Time.

[12] Commencing in early 2016 Alcoa introduced a significant restructure across its operations in WA, which included varying the roster patterns of employees. 3

[13] These changes were implanted progressively across the refinery and were the subject of consultation undertaken in accordance with the consultation provisions contained in clause 21 of the Agreement. The consultation process in respect of the TAs, commenced on 23 May 2016 and concluded on 13 August 2016. Following the consultation the rosters of the TAs were changed from 10.3 hour shift work to a nine day fortnight roster. This change was implemented on 15 August 2016.

[14] The consultation process included a consultation meeting which was held with the TAs and other employees on 13 August 2016 (Consultation Meeting). 4 The Consultation Meeting was attended by Mr Ray Smith the Central Services Manager for the Pinjarra Refinery and Mr MacLauchlan and Ms MacFarlane on behalf of Alcoa and 30-40 employees including five TAs5.

[15] Mr Smith was not responsible for the TAs or the management of the Workshop. 6

[16] During the meeting an employee who was not a TA asked Mr Smith what the start and finish times would be following the roster change. Mr Smith informed him that the start time would be 7am and the finish time for all those moving to day shift would be 15:18 (equating to a 12 minute Walk Time). 7

[17] The AWU assert that this was confirmed by Mr McLauchlan. Mr McLauchlan and Ms Macfarlane deny this. Alcoa assert that, to the contrary, Mr McLauchlan and Ms Macfarlane confirmed that the Walk Time of the TAs would remain at six minutes.

[18] According to the witness statements of both the AWU and Alcoa witnesses Mr Bazil D’Monte an AWU Steward and TA (Mr D’Monte) turned to Mr McLauchlan and asked Mr McLauchlan whether the 12 minute Walk Time would apply to the TAs in the Workshop. 8

[19] Mr Wilson claimed in his written witness statement filed in advance of the hearing that as a consequence of Mr D’Monte’s questioning Mr McLaughlin consulted with Ms Macfarlane then confirmed that the 12 minute Walk Time also applied to the TAs. 9

[20] In contrast at the Hearing Mr Wilson gave two other differing explanations of how Mr McLauchlan came to consult with Ms Macfarlane. Firstly Mr Wilson claimed that Mr Smith turned to Mr McLauchlan and Ms Macfarlane after answering the question from the floor and asked them if it was correct that all employees would be entitled to 12 minute Walk Time.  10 Later in his evidence Mr Wilson claimed that Mr D’Monte asked Mr Smith if the TAs specifically would be entitled to the twelve minute Walk Time and then Mr Smith asked Mr McLauchlan whether this was the case.11 According to both Mr Wilson’s versions of events Mr McLauchlan and Ms Macfarlane answered in the affirmative.12 In all three versions of events Mr Wilson claims that Mr D’Monte asked if Mr Wilson had heard Mr McLauchlan’s reply and Mr Wilson says that he confirmed that he had.13

[21] Both Mr McLauchlan and Ms Macfarlane deny that Mr Smith asked Mr McLauchlan to confirm the accuracy of Mr Smith’s answer to the question from the floor or a question from Mr D’Monte. 14 Mr McLauchlan does agree that Mr D’Monte turned to Mr McLauchlan and asked him directly whether the twelve minute Walk Time applied to the Workshop. Mr McLauchlan says that he replied with words to the effect of “it would be as it is, there is no change”. Mr McLauchlan also says that he made a note to query whether it was necessary to clarify the finish time of the TAs.15

[22] Ms Macfarlane says that after Mr Smith made his statement, Mr Willie Hope, an AWU Sub Branch Secretary (Mr Hope) turned to her and quietly mentioned that Mr Smith’s answer was not correct. She also says that Mr D’Monte also approached her at the end of the meeting and asked whether the twelve minute Walk Time mentioned by Mr Smith applied to the TAs. Ms Macfarlane says that she said words to the effect that: “There is no change to the current arrangements, this is not a big deal, we just need to confirm with WAO Workshop employees that their finish times will not change.” 16

[23] Mr McLauchlan says that after the meeting concluded he asked Ms Macfarlane whether he needed to provide any further clarification in relation to the Workshop Walk Time. He says that Ms Macfarlane told him “No, I have spoken to Willie about that”. 17

[24] The AWU did not call Mr Hope or Mr D’Monte to give evidence, so Ms Macfarlane’s version of events is unchallenged.

[25] The nine day fortnight roster commenced on Monday 15 August 2016. At the pre-start meeting that morning Mr Calan Dumbrell the Group Leader at the Workshop informed the TAs that they would be permitted a six minute Walk Time. 18

[26] In his witness statement Mr Wilson says that on the same day he informed Mr Bill Turner the Group Leader that the AWU was putting the issue of Walk Time into dispute. 19 I note that at the hearing Mr Wilson’s evidence was that the Group Leader whom he notified of the dispute was Mr Bill Turner.20

[27] On Monday 15 August 2016 Mr Stuart Allen, an AWU Site Representative, advised Mr McLauchlan via email that the AWU were putting the issue of Walk Time into dispute. 21

[28] A Stage One Dispute Resolution Meeting was held on 16 August 2016 which did not resolve the matter. 22

[29] A Stage Two Dispute Resolution Meeting was held on 18 August 2016 which did not resolve the matter. 23

[30] A Stage Three Dispute Resolution Meeting was held on 25 August 2016 which did not resolve the matter. 24

[31] The AWU assert that having advised the TAs on 13 August 2016 that the Walk Time would be 12 minutes Alcoa unilaterally varied those arrangements in breach of the consultation provisions contained in clause 21 of the Agreement. AWU assert that Alcoa’s conduct in doing so is in breach of Alcoa’s obligations under clause 6.2 of the Agreement to act with honesty, mutual respect and a business like attitude and in breach of Alcoa’s obligations under clause 6.3 of the Agreement to treat employees fairly.

[32] Whilst it concedes it has permitted the TAs to leave their work area 6 minutes prior to the scheduled end of their shift, Alcoa maintains that it is entitled to require employees to remain in their work area until the scheduled completion of work. Alcoa assert that there is nothing in the Agreement which explicitly permits employees to leave their work area prior to their scheduled shift.

Consideration

[33] It was not contested and I am satisfied that the dispute resolution procedure contained in clause 19 of the Agreement was complied with by the parties and the arbitral powers of the FWC have been properly enlivened.

[34] There is nothing in the Agreement which explicitly permits employees to leave their work area prior to their scheduled finish time. However, since before the commencement of the Agreement, Alcoa has allowed the TAs to have a Walk Time of six minutes and other employees covered by the Agreement to have a Walk Time of twelve minutes.

[35] The AWU assert that based on the statement of Mr Smith at the Consultation Meeting the TAs believed that, commencing Monday 15 August 2016 as part of the restructuring process, their Walk Time would be increased from six minutes to twelve minutes.

[36] The AWU submits that, having indicated that the walking time would be 12 minutes commencing Monday 15 August 2016, Alcoa then unilaterally varied the new arrangements without discharging its consultation obligations contained in clause 21 of the Agreement.

[37] Clause 21.1 of the Agreement provides as follows.

“21. CONSULTATION CLAUSE

21.1 General

(a) From time to time, the company may wish to change aspects of its business and how it operates.

(b) Where change is considered and proposed by the Company, the Company will consult with the appropriate work groups affected by the change and their appropriate representative.

(c) Prior to making the decision to introduce a change, the Company will consult with the relevant employees regarding:

(i) The introduction of the change;
(ii) The effect the change is likely to have on the employees; and
(iii) Measures the employer will take to avert or mitigate the adverse effect of the change on the employees.

(d) Consultation on, and implementation of, change will be through;

(i) Clause 21.2, where the change will have an adverse impact on the job security and/or current income of employees; and

(ii) Clause 21.3, where the change will not have an adverse impact on the job security and/or current income of employees.”

[38] The AWU submits that, where change is considered and proposed by Alcoa, clause 21.1(b) of the Agreement obliges Alcoa to consult with the appropriate work groups affected by the change and their appropriate representative. Further, clause 21.1(d) of the Agreement obliges Alcoa to consult on, and implement any change, through clause 21.3 of the Agreement, which provides as follows. 25

“21.3 Implementation of change which does not have an adverse impact on job security and current income of affected employees

The parties agree that change which does not have an adverse affect on job security and/or current income will be implemented in accordance with the following:

(a) If:

(i) Consultation has been undertaken in accordance with clause 21; and

(ii) There is security of employment and current income; and

[Notes: Everyone will have a job – but it may not be the same job; Shift transition arrangements to be as prescribed in this Agreement. Length of service will be used for transition when agreement can't be found in other ways (transition between shifts / roles etc)];

(iii) The change is safe and efficient; and

(iv) There is a monitoring process involving the Union Representatives;

[Notes: Metrics must be identified in the development of the business case for change & available to provide feedback on effectiveness of change; Regular review forums to ensure full involvement on key changes; Monitoring includes process / people through the change implementation as well as the outcomes; There is a clear, accepted and identified help chain that works]

Then the Union Representatives will participate in the change process through communication and expect that Management will implement it, in accordance with applicable agreements.

[Notes: Help deliver through communication where appropriate;
Management will make sure it's right (as per previous items) and then go and do it; Management support from Union Representatives means that representatives will check that it's been done as agreed (i.e. the Process) - it doesn't mean that representatives are required to implement it;

(b) Should there be any dispute in relation to the application of the above process, such dispute will be dealt with in accordance with clause 19 – Dispute Resolution Procedure.”

[39] The AWU submit that there was no consultation under clause 21.1 or 21.3 of the Agreement to ‘revert back to’ six minutes’ Walk Time after it had allegedly been changed on 13 August 2016.

[40] The AWU submit that the failure to comply with the consultation provisions constituted a breach of clause 6.2 of the Agreement in that by doing so Alcoa failed to act honestly, respectfully or in a businesslike manner and consequently treated the TAs unfairly. 26

[41] Clause 6.2 of the Agreement provides that:

"6. Employment Conditions

…

6.2 Honesty, mutual respect and a business like attitude and behaviour will prevail at

all times.”

[42] If the AWU assert that Alcoa could not alter the Walk Time to revert back to six minutes without complying with the consultation obligations in clause 21 of the Agreement then it difficult to understand how the AWU say that Alcoa could have initially increased the Walk Time to twelve minutes without complying with those same provisions.

[43] The AWU’s own witness gave clear evidence that Alcoa conducts extensive consultation before making any changes:

“And that's the manner in which Alcoa implements change, isn't it?  It talks about it a lot before it does anything?---They consult, yes.  Yes.

Yes.  If they're going to do something that impacts upon employees they consult extensively, don't they?---Yes.

Not too much happens as a surprise at Alcoa?---No.”

[44] Mr Wilson conceded that changes to Walk Time had not been discussed in any of the extensive consultations which occurred in relation to the introduction of the roster changes. 27

[45] In this context it is difficult to imagine how those TAs present at the meeting might have reasonably believed that an answer to a question from an employee from another work area without notice to a Manager not responsible for TAs might have constituted consultation for the purposes of clause 21. Certainly if Mr Smith had indicated that the Walk Time was to be reduced, it seems very unlikely that the AWU would have argued that Alcoa had discharged its consultation obligations under the Agreement and could lawfully introduce such a change.

[46] In any event I am not satisfied that the comments made by Mr Smith in the circumstances in which they were made, could reasonably be characterised as a legally binding commitment by Alcoa to permit the TAs to leave their work area twelve minutes prior to their roster finishing.

[47] The question about Walk Time was raised by an employee who was not a TA and was answered by an Alcoa manager who was not responsible for the Workshop or the TAs.

[48] On their own evidence the TAs were unclear whether Mr Smith’s statement applied to them and therefore sought confirmation from Mr McLauchlan. If the TAs genuinely believed that Mr Smith had the authority to change their Walk Time practices and intended to do so there would have been no need for them to seek to have this confirmed by Mr McLauchlan.

[49] To the extent that any confusion existed in relation to Mr Smith’s statement I am satisfied that this was contemporaneously corrected by Mr McLauchlan and/or Ms Macfarlane. In this regard I prefer the evidence of Mr McLauchlan and Ms Macfarlane because of the number of inconsistencies in Mr Wilson’s written and oral evidence.

[50] The situation was also clarified by the Group Leader of the TAs at the commencement of the first shift following the Consultation Meeting.

[51] In the alternative, the AWU submit that contrary to clause 6 of the Agreement the TAs have not been treated fairly or equitably as compared to other employees who are permitted a twelve minute Walk Time. 28

[52] Alcoa assert that a claim that the TAs are entitled to an additional six minutes’ Walk Time as a matter of fairness or equity is properly characterised as an ‘extra claim’ in breach of clause 25 of the Agreement. Clause 25 of the Agreement provides as follows:

“25. NO EXTRA CLAIMS

As in the making of this Agreement the parties have contemplated all aspects of the employment relationship and determined that the terms and conditions specified herein shall govern it, they expressly agree that:

25.1 The terms and conditions of employment prescribed in this Agreement and the documents referred to it form a complete and total description of the entitlements of employees for the life of this Agreement; and

25.2 In circumstances where a party considers that any provision of this Agreement has not been properly or accurately applied, that matter may be referred by either party for resolution or determination in accordance with the Dispute Resolution Procedure prescribed by this Agreement; and

25.3 No further claims relating to terms and conditions of employment shall be made for the life of this Agreement by the Australian Workers Union and/or any employee covered by it.”

[53] In the absence of any reference to Walk Time in the Agreement and a custom and practise of providing no more than six minutes’ Walk Time for the TAs existing prior to the commencement of the Agreement, I am satisfied that a claim for an additional six minutes’ Walk Time is a matter which goes outside the Agreement and is properly characterised as an ‘extra claim’ in breach of clause 25 of the Agreement. 29

[54] The AWU has failed to make out a case that the TAs are entitled to twelve minutes Walk Time. The Application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

C Young for the Applicant.

W Milward of Heelan & Co. Industrial Relations and Management for the Respondent.

Hearing details:

2016.

Perth:

November 28.

Final written submissions:

Applicant, 7 November 2016

Respondent, 21 November 2016

 1   Exhibit R1 at [8]

 2   Ibid at [10]

 3   Exhibit A2 at [7]

 4   Ibid at [8], Exhibit A1

 5   Transcript at [66]-[68]

 6   Exhibit R3 at [21]

 7   Exhibit A1

 8   Exhibit A1 and Exhibit R2 at [34]

 9   Exhibit A1

 10   Transcript PN72

 11   Transcript at PN95

 12   Transcript at PN98

 13   Transcript at PN117

 14   Transcript at PN559 and PN794

 15   Exhibit R2 at [35]

 16   Exhibit R3 at [26]

 17   Exhibit R2 at [42]-[43]

 18   Exhibit A1 and Exhibit R1 at [39], Transcript PN121

 19   Exhibit A1

 20   Exhibit A1 and Transcript at PN122

 21   Exhibit R2 at [57]

 22   Exhibit A3 and R2 at [58]

 23   Exhibit A4 and R2 at [59]

 24   Exhibit A4 and R2 at [61]

 25   Exhibit A2 at [16]-[18].

 26   Exhibit A2 at [21]-[26]

 27   Transcript PN202-243

 28   Exhibit A2 at [26]

 29   Melbourne Fire and Emergency Services Board v United Firefighters Union of Australia [Print 950883] at [27]

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