“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal,...
[2024] FWC 1496
•11 JUNE 2024
| [2024] FWC 1496 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) AND Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
CSL Limited T/A Seqirus
(C2023/5806 and C2023/6060)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 11 JUNE 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
On 28 September 2023 and 10 October 2023 respectively, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 1.7 of the Seqirus Enterprise Agreement 2021[1] (the 2021 Agreement). The Respondent in the matter is CSL Limited T/A Seqirus (Seqirus).
The AMWU and ETU (the Unions) by their dispute notifications contend that Seqirus has failed to consult in accordance with its obligations under clauses 1.8.3 and 1.8.6 of the 2021 Agreement with respect to its new Tullamarine manufacturing facility. The matters in dispute have been the subject of unsuccessful conciliation conferences before the Commission.
The background to the dispute before the Commission which I do not propose to restate was set out at in an earlier decision[2] issued on 6 February 2024 (6 February Decision). The 6 February Decision dealt with an application made by the Unions for orders restraining Seqirus from commencing bargaining for an enterprise agreement to apply at its new Tullamarine facility pending the resolution of the substantive dispute. A further decision[3] dealing with applications by the Unions for the production of documents for the purposes of my determining the present matter was issued on 18 March 2024 (18 March Decision).
Jurisdiction of the Commission
Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The 2021 Agreement contains such a term which is set out at clause 1.7 of the Agreement in the following terms;
“1.7DISPUTE RESOLUTION
In the event of a dispute in relation to a matter arising under this Agreement or in relation to the National Employment Standards, these matters shall be dealt with in accordance with the following procedure.
1.7.1 Resolving disputes at the workplace
(a)In the first instance, the parties to the dispute must genuinely try and resolve the dispute at the workplace level, by discussions between the employee(s) and the relevant manager.
(b)If the matter remains unresolved, the matter shall be discussed between the employee(s) and a more senior manager.
(c)If the matter remains unresolved, the matter shall be discussed between the employee and an appropriate company representative (for example a member of the Human Resources department).
(d)If the matter remains unresolved after (a) – (c) have been exhausted, either the employer or the employee(s) may refer the dispute to the Fair Work Commission.
1.7.2Where disputes cannot be resolved at the workplace
The Fair Work Commission may deal with the disputes in two (2) stages:
(a)The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b)If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i)Arbitrate the dispute; and
(ii)Make a determination that is binding on the parties.
(c)If arbitration is necessary, the FWC may exercise the following powers:
(i)take verbal or written evidence on oath or affirmation, in chief and by cross examination;
(ii)give a direction in the course of or for the purposes of procedural matters relating to the hearing of the dispute;
(iii)request the attendance before FWC of any witness or person whose presence FWC believes is directly relevant to the dispute and essential for the arbitration of the dispute;
(iv)require the production of documents and other material, excluding documents and materials which may be commercially sensitive or confidential, or are not directly relevant to the dispute and essential for the arbitration of the dispute;
(v)make a final decision in respect of the dispute (including dismissing a dispute);
(vi)hear and determine the dispute in the absence of a party who has been notified of the hearing;
(vii)conduct its proceedings, or any part of its proceedings, in private; and
(viii)meet with a party to the dispute separately during a conciliation with the knowledge of the other party.
(d)In exercising any of the powers detailed above FWC will:
(i)apply the principles of natural justice, ensuring that the parties to the dispute have a reasonable opportunity to be heard; and
(ii)act according to equity, good conscience and consider the merits of the case without undue regard to technicalities and legal form.
(e)A decision that the Fair Work Commissions makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009 (Cth). Therefore, an appeal may be made against the decision.”
It was not contested that the questions to be determined by the Commission, which are set out below, are capable of constituting a dispute relating to “a matter arising under” the 2021 Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution procedure (the DRP) of the 2021 Agreement. Having regard to the information in the Form F10 applications filed by the Unions and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration as provided by clause 1.7.2(b)(i) of the 2021 Agreement.
The matter was subject to conciliation before the Commission during a number of conferences conducted with the parties pursuant to clause 1.7.2(a) of the 2021 Agreement but was not resolved. The Unions subsequently requested the matter be programmed for arbitration pursuant to clause 1.7.2(b)(i) of the 2021 Agreement.
The hearing
The matter was listed for hearing before me on 25 & 26 March 2024 in advance of which the parties filed material on which they intended to rely in accordance with directions issued. At the hearing, the Unions continued to be represented by Mr Eugene White of Counsel while Seqirus continued to be represented by Mr Leigh Howard of Counsel, both of whom had been previously granted permission to appear pursuant to s 596 of the Act. Mr Howard called Seqirus’ Vice President Program Lead (Tullamarine Facility) - Mr Jonah Smith to give evidence.
Issues for determination
The following questions arise for determination by the Commission;
1.In the circumstances, has the Respondent failed to discuss and consult with the relevant employees as required by subclauses 1.8.6 and 1.8.3(d) of the Seqirus Enterprise Agreement 2021(the Agreement) by failing, in relation to the change (the move to Tullamarine):
(a) to discuss the introduction of the change
(b) to discuss the effect the change is likely to have on the employees at Parkville?
2.If the answer to Question 1 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(a) the way in which the Respondent has failed to meet its obligations; and
(b) steps by which it may remedy its failure?
3.In the circumstances, has the Respondent failed to provide in writing to the relevant employees for the purposes of the discussions required by subclause 1.8.3(d) all information required to be provided in writing by subclause 1.8.3(e)(i), (ii) and (iii), including about job opportunities at Tullamarine, about expected numbers of jobs to be available at Tullamarine for current employees at Parkville and about conditions of employment at Tullamarine, including information about how many and which of the Parkville employees will be or are expected to be employed at Tullamarine and the timetable for same?
4.If the answer to Question 3 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(a) the way in which the Respondent has failed to meet its obligations; and
(b) steps by which it may remedy its failure?
Agreement provisions
The dispute in the present matter relates to whether Seqirus has complied with the relevant consultation obligations over its new manufacturing facility at Tullamarine. The consultation obligations are set out clause 1.8.3 of the 2021 Agreement as follows;
“1.8.3Consultation obligations
(a) In the event that Seqirus:
(i)has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise and the change is likely to have a significant effect on employees covered by this Agreement; or
(ii)proposes to introduce change to the regular roster or ordinary hours of work of employees,
Seqirus must notify the relevant employees of the decision to introduce the major change.
(b) The relevant employees may appoint a representative for the purposes of consultation under this clause.
(c) If:
(i)a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(ii)the employee or employees advise Seqirus of the identity of the representative;
Seqirus must recognise the representative.
(d) As soon as practicable after making its decision (or in the case of roster change after proposing to introduce the change), Seqirus must discuss with the relevant employees:
(i)the introduction of the change; and
(ii)the effect the change is likely to have on the employees; and
(iii)measures Seqirus is taking to avert or mitigate the adverse effect of the change on the employees.
(iv)invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
(e) For the purposes of such discussions, Seqirus must provide, in writing, to the relevant employees:
(i)all relevant information about the change, including the nature of the change proposed; and
(ii)information about the expected effects of the change on the employees; and
(iii)any other matters likely to affect the employees.
(f)Seqirus is not required to disclose confidential or commercially sensitive information to the relevant employees.
(g) Seqirus must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(h)In this clause, a major change is likely to have a significant effect on employees if it results in:
(i)the termination of the employment of employees; or
(ii)major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(iii)the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(iv)the alteration of hours of work; or
(v)the need to retrain employees; or
(vi)the need to relocate employees to another workplace; or
(vii)the restructuring of jobs.
(i)In this clause, “relevant employees” means the employees who may be affected by the relevant change.”
Clause 1.8.6 specifically deals with consultation obligation in relation to Seqirus’ new Tullamarine facility;
“1.8.6Consultation on new Tullamarine facility
Seqirus has announced that it is building a new purpose-built facility at Tullamarine, which it anticipates will commence operation in 2026.
Seqirus will consult with employees in relation to the new facility in accordance with clause 1.8.3.
Seqirus may also use the Consultative Group forum as outlined in clause 1.8.4 to provide relevant updates on the new facility.”
Background and evidence
CSL Seqirus
According to Mr Smith, CSL Seqirus is a distinct business division within CSL and engages in research, development, production and distribution of various vaccines and anti-venoms throughout Australia and globally. Its manufacturing operations are primarily based at Parkville in Victoria, but it also has facilities at Broadmeadows, Victoria which is used for the manufacture of Q Fever vaccine and at Woodend, Victoria which is used for the early stage manufacture of anti-venoms[4].
Project Banksia
On 15 November 2020, CSL announced that Seqirus had decided to build a new ‘world class, next generation influenza vaccine manufacturing facility at Tullamarine, Victoria’. The project was initially called ‘Project Banksia’. The project involves the construction of the new manufacturing facility and will apply ‘innovative cell-based technologies to produce influenza vaccines as well as a range of anti-venom products.’ The new manufacturing facility is planned to become fully operational by 2026. The Parkville facility and the Broadmeadow Q-Fever facility will continue to operate until the Tullamarine facility is fully operational at which point they will cease operations. The Woodend site will continue to operate beyond 2026[5].
Consultation
As earlier stated, Seqirus announced its decision to build the new Tullamarine facility on 15 November 2020[6]. Following that announcement, various forms of communication and consultation were implemented including through; establishment and use of a dedicated Project Banksia intranet page, conduct of ‘Town Halls’ (face to face briefings of all employees), providing employees with access to recordings of Town Hall meetings, formal union notification, meetings and correspondence, emails to employees including providing anonymised responses and responding directly to questions from individual employees, providing frequently asked questions (FAQs) to employees, conduct of departmental briefings and conduct of one on one meetings with Parkville employees. A summary of the key communication and consultation events including those relevant to the Parkville maintenance employees were set out by Mr Smith[7] and are summarised below. In communicating with employees about the new Tullamarine site, Seqirus also established dedicated pages on its Intranet site on which it provided Town Hall meeting updates, business updates and enterprise agreement or bargaining updates[8].
Since the announcement of Project Banksia there have been at least nine Town Hall meetings of all Parkville employees conducted on the following dates;
16 November 2020, at which information was provided on the site location, project timelines and workforce plans[9];
10 December 2020, at which the scope, guiding principles and timeline for Project Banksia were covered[10];
28 October 2021, at which construction progress, scope refinement, project schedule and an outline of priorities for next six months was provided[11];
16 December 2021, at which information was provided on a range of matters including the vision for the site from a technical perspective, project schedule, contracting strategy and major milestones and objectives for the project[12];
2 November 2022, at which information was provided on various matters including project milestones, a transition roadmap, estimates on the number of dayshift employees required, and on CSL’s Holly Springs USA site[13];
March 2023, at which information was provided on various matters including project milestones, transition roadmap, construction progress, updates from other CSL sites, the Parkville Transition Hoshin Program, project roles, endorsed future departments at Tullamarine and Woodend sites and a training strategy[14];
July 2023, at which topics covered included the Parkville transition update, project update, Parkville exit plans, Tullamarine departments, training and a Q&A session[15];
19 October 2023, at which topics covered included project construction update, Parkville exit plans, education and technology[16]; and
8 February 2024, at which topics covered included project construction progress, Parkville transition plans, the People Strategy and a Q&A session[17].
Following conduct of the Townhall meetings, Seqirus routinely emailed or provided employees with access to copies of the presentations, links to recordings of Townhall briefings and updated FAQs[18].
Supplementing the Town Hall briefings were Departmental briefings, which relevantly included the briefing of Parkville maintenance department employees as follows;
provision of an ‘Engineering Functional Briefing in July 2023’ which covered topics including organisational plans for the new site, the operating model for the new site, the Engineering organisational design plans and structures, the proposed shift structure, role mapping from Parkville to Tullamarine, and a Q&A session[19]; and
provision of departmental briefings including the maintenance department in September 2023[20] during which the ‘Tullamarine - Operating Model Assumptions’ and proposed roster were covered[21].
Following announcement of Project Banksia, Seqirus notified the relevant unions of the project. Seqirus also held various consultation meetings with Parkville maintenance employees at which the Unions attended and also provided various written information to the Unions and employees within the maintenance department. A summary of these actions is set out below;
· 17 November 2020 - Mr Iser (Senior Manager – Employee Relations for Seqirus) notified Nathan Jenkins of the ETU regarding the Project Banksia announcement, provided a set of FAQs and invited the ETU to discuss the announcement[22];
· 18 November 2020 - Mr Iser emailed Alistair Thomas of the AMWU regarding the Project Banksia announcement, provided a set of FAQs and invited the AMWU to contact Mr Iser if they had any questions[23];
· 18 April 2023 – a consultation meeting was held with delegates of the Unions at which the parties discussed information about the changes and the potential impacts on employees[24];
· 27 & 28 April 2023 – in response to a question from a Parkville Instrument Technician, Mr Iser advised that while the timing of a new enterprise agreement for the Tullamarine site was still unknown, Seqirus would work to have an enterprise agreement in place as employees transition across from Parkville to Tullamarine and that any new enterprise agreement for Tullamarine would need to be ‘fit-for-purpose’[25];
· 30 August 2023 – Chris Spindler (AMWU Organiser) wrote to Travis Millen (HR Site Lead Parkville) in regard to Project Banksia, alleging that Seqirus had not met its consultation obligations under the 2021 Agreement in respect of the transition to Tullamarine and requested that a date/time be set for an initial consultation meeting[26];
· 1 September 2023 – Mr Millen replied to Ms Spindler’s correspondence of 30 August 2023, outlined steps taken to date to consult, expressed an openness to having discussions with the AMWU and proposed a meeting on 12 September 2023[27];
· 14 September 2023 – consultation meeting held with the Union representatives and included discussion on Project Banksia and enterprise agreement coverage that would apply at the Tullamarine site[28];
· 28 September 2023 - consultation meeting held with the Union representatives and included discussion on the proposed shift structure at the new site, how redundancies at Parkville might work and Seqirus confirmed that it would require 8 mechanical trades and 8 instrument trades at the new site[29];
· 6 October 2023 - consultation meeting held with the Union representatives at which the parties discussed the proposed shift structure at the Tullamarine site and Seqirus confirmed that there would be one mechanical utilities trades role at the new site that would not be required to work the proposed 12 hours shift roster[30];
· 18 October 2023 – Seqirus received a letter from Raoul Wainwright (Industrial Officer for the AMWU) posing various questions regarding the Tullamarine site including on wage rates/conditions, anticipated employee numbers at Parkville and Tullamarine sites for the years 2025-2027, redundancies and method of negotiation of an industrial instrument for the Tullamarine site[31];
· 23 October 2023 - consultation meeting held with the Union representatives at which the parties discussed a number of matters relating to the new site including continuity of service, the classification structure, hours of work, wages, rostered days off, shift structure, timing for negotiating an agreement for the Tullamarine site and Seqirus’ preference to recruit roles at the Tullamarine site from the existing workforce at Parkville[32];
· 26 October 2023 – Mr Iser responded on behalf of Seqirus to Mr Wainwright’s letter dated 18 October 2023 and in doing so answered each of the questions raised by Mr Wainwright[33];
· 30 October 2023 - consultation meeting held with the Union representatives at which the parties discussed the proposed shift structure, recruitment opportunities and terms and conditions that would apply at the new site[34];
· 8 November 2023 - Seqirus received a letter from Raoul Wainwright (Industrial Officer for the AMWU) posing sixteen questions regarding the Tullamarine site including on shift structures, rates of pay, breaks, public holidays, career development, purchased leave, salary continuance, annual leave, special leave, wellness days, allowances and redundancy[35];
· 15 November 2023 - Mr Iser responded on behalf of Seqirus to Mr Wainwright’s letter dated 8 November 2023 and in doing so answered each of the sixteen questions raised by Mr Wainwright[36];
· 15 November 2023 - consultation meeting held with the Union representatives at which the parties discussed the shift model proposed by the AMWU & ETU for the new site[37];
· 17 November 2023 – Seqirus received an email from Mark Nicholson who is an employee within the Parkville trades group who posed eleven questions including in respect of the transfer of staff to Tullamarine, the enterprise bargaining process for the new site and how employees at Parkville would be able or unable to influence the outcome of bargaining for a new enterprise agreement for the Tullamarine site[38];
· 21 November 2023 – Mr Iser responded to Mr Nicholson’s email dated 17 November 2023 and answered each of the eleven questions posed and in doing so confirmed that eligibility to participate in bargaining and vote on an enterprise agreement for the Tullamarine site would be in determined by reference to the Act’s bargaining and agreement making provisions[39];
· 22 November 2023 - consultation meeting held with the Union representatives during which a copy of a confidential Seqirus document titled ‘Banksia ER Strategy’ was produced by an AMWU delegate which drew a request from Mr Iser that any questions about the document be put in writing[40];
· 24 November 2023 – Seqirus emailed maintenance employees a copy of an ‘example contract template’ for the upcoming trades positions available at Tullamarine site[41];
· 6 December 2023 – consultation meeting held with the Union representatives during which the proposed shift structure for the Tullamarine site and the expression of interest process for the new Tullamarine roles was discussed[42];
· 11 December 2023 - consultation meeting held with the Union representatives during which the proposed shift structure for the Tullamarine site was again discussed during which Mr Smith provided Seqirus’ response to the AMWU & ETU’s alternative shift roster proposals[43];
· The ‘Tullamarine – Operating Model Assumptions’ and Seqirus’ proposed Tullamarine roster and the options put forward by the Parkville maintenance group were summarised for discussion purposes in a document prepared by Seqirus[44] and according to Mr Smith was dealt with in three consultation meetings[45];
· 13-15 December 2023 – email exchange between Ivan Dokoza (Associate Director – Talent Acquisition CSL) and Mr Nicholson regarding terms and conditions of employment at the Tullamarine site[46]; and
· 6 March 2024 – Mr Smith wrote to the Unions and provided various information on job opportunities and expected job numbers at Tullamarine, conditions of employment and how many Parkville employees are likely to be employed at Tullamarine and the timetable for same[47].
The issue of employment opportunities and transition of staff to Tullamarine was a matter variously covered in Town Hall meetings, departmental briefings and consultation meetings. A slide in the November 2022 Town Hall briefing dealt with the ‘People Transition Roadmap’[48] and identified three phases as follows and the dates by which they would be completed;
· Phase 1 – Proposal of future state design – What is needed for the Australian Operations – to be completed by December 2022;
· Phase 2 – Review of proposal and mapping the movement of positions across the future state operations – which were shared at the March 2023 Town Hall[49]; and
· Phase 3 – Sharing the outcomes from position mapping exercise – which was provided to Parkville maintenance employees in the departmental briefing conducted in July 2023[50].
Following completion of the first three phases of the People Transition Roadmap which concluded with completion of the position mapping exercise, a further 3 phases of the transition plan were identified in the July 2023 Town Hall briefing[51], those being;
· Phase 4 – Training program and delivery update – to occur in Q3 of 2023;
· Phase 5 – Individual employees to be advised of their position and timing of transition to the Tullamarine site – to occur during Q1-Q3 of 2024; and
· Phase 6 – Parkville site exit and remediation plans to be shared with employees from Q4 2024 onwards.
During the November – December 2023 period, Seqirus advertised for three maintenance roles required at the Tullamarine site. By mid-December 2023, 11 maintenance employees at Parkville had expressed interest in the advertised roles. In January 2024, Seqirus finalised the recruitment of the three advertised roles. Of the 11 Parkville maintenance employees that had originally expressed interest, 10 withdrew their expressions of interest and one Parkville maintenance employee was offered a role and transitioned to Tullamarine[52].
During the course of the above-referred consultation, the Unions pressed Seqirus in relation to whether an enterprise agreement would be negotiated for the Tullamarine site and when such negotiations would commence. As referred to above, the Unions raised the status of an internal Seqirus document tiled Banksia ER Strategy at a meeting with Seqirus on 22 November 2023. The document was also referred to in an article in the Australia newspaper titled ‘Industrial bastardry: CSL’s secret plan to cut pay, sack staff’[53] (the Australian Article). Seqirus subsequently wrote to the Union’s legal representative Gordon Legal on 30 November 2023[54] and variously refuted issues raised by the Unions and also clarified a number of matters raised in the Australian Article. Seqirus relevantly made the following points in its response to The Australian Article;
the Banksia ER Strategy document was a confidential, work-in-progress, internal document that was created in 2020 as part of a scenario planning process, was neither endorsed or supported by CSL’s leadership team and does not represent an approved strategy;
Seqirus did not intend to ‘reset the industrial landscape’ on ‘reduced terms’ with a small group of employees before applying the agreement to workers that transfer from Parkville;
the company wants a ‘fit for purpose’ agreement in place as soon as possible;
it wants the agreement to be made by a genuinely representative group of employees;
the agreement would be voted on by all employees who are employed at the Tullamarine site at the time of any ballot for the agreement;
because the onboarding of employees to Tullamarine will be phased over a number of years, Seqirus intends to propose that the initial agreement would only have a reasonably short nominal term of 18 months; and
the new Tullamarine site will operate differently to the Parkville site, for example requiring 24 hour 7 day a week roster coverage.
In Seqirus initiating and then progressing bargaining for an enterprise agreement to apply at the new Tullamarine site, the following timeline of events is relevant;
· 26 October 2023 - Mr Iser’s letter to Mr Wainwright that addressed a number of questions relevantly stated that while no decisions had yet been made regarding the commencement of bargaining for an agreement for the Tullamarine site, Seqirus’ view was that on understanding the nature of the new operations, it would employ a cohort of employees who could bargain on and then vote on an agreement for that site;
· 20 December 2023 – Mr Iser sent an email to Shannon Crundwell (ETU Organiser) and Chris Spindler (AMWU Organiser) advising that Seqirus was in the process of finalising an internal recruitment process for a number of roles for the Tullamarine site, it expected to have approximately 40 employees working in operational roles by mid-January 2024 and anticipated being in a position to initiate bargaining for an agreement for the Tullamarine site as early as late January 2024[55];
· 30 January 2024 – Mr Iser sent an email to Mr Crundwell and Mr Spindler advising that CSL was initiating bargaining for an agreement, invited them to the first proposed bargaining meeting on 14 February 2024 for the Tullamarine site and proposed the conduct of weekly bargaining meetings thereafter[56];
· 5 February 2024 – Mr Crundwell responded to Mr Iser’s email of 30 January 2024 and requested a copy of the NERR, the company’s log of claims and details of the number of employees at Tullamarine including their current occupation/classification[57];
· 6 February 2024 – Email from Mr Smith and Simon Buensch to all staff advising that bargaining for an agreement to cover the Tullamarine site had commenced, that NERR’s had been issued to relevant employees, that the first bargaining meeting was to be held on 14 February 2024 and that all materials relating to bargaining could be accessed on the ‘Tullamarine iNet page’[58];
· 7 February 2024 – Mr Iser responded to Mr Crundwell’s email of 5 February 2024 and in doing so provided the requested information[59];
· 8 February 2024 – Mr Crundwell sent a further email to Mr Iser clarifying his earlier request to attend the Tullamarine site and hold a union meeting and also proposed an alternative date for the initial bargaining meeting[60];
· 9 February 2024 – Mr Iser relied to Mr Crundwell’s email of 8 February 2024, confirmed that Seqirus would accommodate his request for a paid union meeting on site[61];
· 12 February 2024 – Seqirus held the first bargaining meeting with the unions for the proposed Tullamarine Agreement during which a site tour and briefing was provided to union organisers[62];
· 12 February 2024 – Seqirus emailed all its employees advising that bargaining had commenced for an agreement for the Tullamarine site and in doing so attached its earlier response to The Australian Article[63];
· 13 February 2024 – Joshua Iser sent an email to the unions in which he confirmed details discussed at the first bargaining meeting, confirmed dates for the next three bargaining meetings and requested the unions to provide their log of claims at the next bargaining meeting[64];
· 14 February 2024 – Mr Crundwell sent an email responding to Mr Iser’s email of 13 February 2024 requesting various information about the employees who will be covered by the Tullamarine Agreement and also requested that a copy of Seqirus’ log of claims be provided by the next day[65];
· 15 February 2024 – Mr Iser responded to Mr Crundwell’s email of 14 February 2024 and provided information on employees then employed at the Tullamarine site that would be covered by the Tullamarine Agreement and also advised that Seqirus proposed to share its log of claims with the unions at the next meeting scheduled for 27 February 2024[66];
· 27 February 2023 – the second bargaining meeting was held between Seqirus and the three unions during which Seqirus gave a presentation[67] on the new site, its bargaining principles, and proposals, and provided the first draft of its proposed Tullamarine Agreement[68] which includes a proposed term of 18 months;
· 28 February 2024 – Mr Iser sent the three unions various documents following the 27 February 2024 bargaining meeting including a copy of the first Draft Tullamarine Agreement[69], a copy of the presentation delivered, an overview of the shift arrangements that would apply for the 12-hour shift workers and various CSL policies[70]; and
· 7 March 2023 – The Tullamarine EA Negotiating Team sent an email to all staff advising that the bargaining meeting scheduled for that day had been cancelled by the unions, no alternate meeting date had been proposed by the unions and the next scheduled bargaining meeting was 22 March 2024[71].
It is noted that on commencement of enterprise bargaining for the Tullamarine site, a site on Seqirus’ intranet was established that all relevant documents and communications were available for Parkville employees to access and review[72]. This included a copy of the Draft Tullamarine Agreement, updates on negotiations and FAQs. A copy of the Draft Tullamarine Agreement was uploaded onto the site on or about 28 February 2024.
The AWU and CEPU prepared a summary of the terms and conditions contained in the 2021 Agreement that had been ‘stripped or changed’ in the Draft Tullamarine Agreement provided to them in the second bargaining meeting on 27 February 2023. The terms and conditions comparison document, the accuracy of which was not challenged by Seqirus, revealed multiple differences between the 2021 Agreement and Draft Tullamarine Agreement. While not an exhaustive list, the terms in the Draft Tullamarine Agreement that are either excluded or modified when compared to terms in the 2021 Agreement are as follows;
· the agreement expiry term does not include an obligation to commence bargaining four months prior to the nominal expiry of the agreement;
· no obligation to consult over the use of third party labour on contractors;
· removal of all steps to accord procedural fairness in disciplinary processes;
· removal or amendment of various definitions including in respect to ‘normal hours’, ordinary hours increased from 36.75 to 38 hours, definition of salary for the purpose of redeployment and redundancy payments removed, redeployment and personal leave payments exclude shift penalties and allowances;
· removal of casual conversion right where a casual worker has worked an average of at least 15 hours per week for six months;
· removal of requirements for work patterns to be established for at least 3 months;
· removal of rostered days off (RDO) entitlement;
· removal of notice requirement for variation of rostered shift;
· removal of entitlement to average shift penalty rates over an agreed period;
· obligation imposed on Seqirus in changing shift patterns removed including taking into account family responsibilities;
· removal of various performance management processes and entitlements including removal of an entitlement to automatic 12-month performance review, removal of obligation for the employer to advise employees at first opportunity of a less than satisfactory appraisal and removal of obligation to provide formal documentation on feedback;
· removal of a range of allowances including cold room, finished product stores B, confined space, dirt money and business travel;
· overtime provisions are altered such that reasonable notice of overtime not required, the right of MET workers to be paid double time for all hours worked on Saturday is removed, the right to time off in lieu of overtime payment (TOIL) is removed and the right to be paid single time plus another day off during the week for Sunday overtime is removed;
· the annual influenza manufacturing shutdown annual leave provisions are altered such that continuous shift workers would receive 2.5 days less in annual leave entitlements, shutdown limitations removed, staff can be directed to perform other work not covered by the agreement during shutdowns and the right to access other paid leave when shutdown exceeds annual leave accrual removed;
· removal of entitlement to cash out annual leave subject to taking at least 14 days leave in a year;
· personal leave reduced from three weeks after one year of service to two weeks per the NES;
· removal of right to take two days unpaid personal leave when personal leave is exhausted;
· right to access purchased leave arrangement removed;
· redundancy pay entitlement capped at 36 weeks versus the cap of 80 weeks in the 2021 Agreement;
· payroll deductions for union dues removed; and
· the right to provide employees with TOIL for required weekend domestic or international travel removed.
Mr Smith was cross-examined at length in relation to the consultation steps undertaken by Seqirus in relation to the Tullamarine transition. He was firstly questioned on the amount of planning undertaken by Seqirus prior to and following the 15 November 2020 announcement of the new Tullamarine facility. He variously stated as follows;
a significant amount of planning work was undertaken prior to the announcement of the project[73];
his role did not include project profitability considerations and while he could not speak to those, he agreed that CSL was not a company that undertakes unprofitable projects[74];
there is a view in the company about the number of employees required to run the new facility when it is fully operational in 2026 and this was communicated to staff in July 2023[75];
planning in relation to the cost of the workforce was important but he could not recall seeing any internal analyses of the numbers, skills, and cost of the workforce[76];
Seqirus undertakes a structured workforce planning approach which includes estimates of shift patterns, penalty rates and conditions[77];
when Seqirus formed a view on the number of employees required to run the new facility, conditions of employment were not a large function of the structure[78];
workforce cost estimates, which commenced after the project announcement in November 2020, were at a high level, did not entail a comparison with Parkville costs to Mr Smith’s knowledge and did not include terms and conditions in the initial stages of planning following the project’s announcement[79]; and
the project was put on hold in January 2021 for approximately 5 months to allow for ‘rescoping’ to identify commonalities or synergies with other CSL manufacturing facilities that would enable cost reductions[80].
In terms of the development of the proposed conditions of employment for the Tullamarine site, Mr Smith stated as follows when cross-examined;
the proposed terms and conditions for the Tullamarine site came to his attention in late 2023 when Mr Iser presented a summary with reference to current Parkville conditions[81];
Mr Iser is the HR lead with day to day responsibility for workforce matters on the project and provided various reports to Mr Smith and other members of the project leadership team following the November 2020 announcement[82];
development of the proposed terms and conditions to apply at the Tullamarine site was a progressive process in which the leadership team progressively considered and accepted proposals put forward by Mr Iser[83];
while Mr Smith could not recall, he expects that some of Mr Iser’s reports referenced the cost of the Tullamarine proposals compared with labour costs at Parkville[84]; and
Mr Smith agreed that several presentations were made to the Global IR Committee on Tullamarine terms and conditions of employment on the following dates; 13 July, 30 August 2022 and 11 October, 25 October, 29 November 2023, and 18 January 2024[85] although he could not recall the detail of those proposals.
On the number of employees required at Tullamarine, Mr Smith confirmed that;
it was Seqirus’ intent to transition current Parkville employees to Tullamarine[86];
approximately 400 employees would be required to run the Tullamarine facility when it was fully operational which compares with 500 employees required to run the Parkville facility[87];
Tullamarine operations will require 9 mechanical fitters when fully operational, one of whom would be on day work and 8 would be required to work a rotating 24/7 roster averaging a 42hour week, which compares with the eight mechanical fitters on day shift currently required at Parkville[88];
the Tullamarine operations will require 8 electrical and instrument trades working a 24/7 continuous shift roster when fully operational which compares to 4 electrical and instrument trades on day shift currently required at Parkville[89]; and
because a sizeable number of Parkville employees would progressively accept roles and move to Tullamarine and be covered by the proposed Tullamarine Agreement, Seqirus had proposed a relatively short agreement term of 18 months[90].
In relation to the terms and conditions contained in the Draft Tullamarine Agreement Mr Smith gave the following evidence;
· he did not accept the proposition put to him that the terms and conditions in the Draft Tullamarine Agreement were different to Parkville conditions and claimed that the majority of conditions were the same[91];
· he agreed with the proposition that some different conditions of employment (to that of Parkville) are required to deal with different site operations at Tullamarine[92];
· the reasons or rationale for the Tullamarine conditions of employment proposed to Mr Smith (and others) were generally but not always included in the reports provided by Mr Iser[93];
· when invited to identify terms and conditions in the Draft Tullamarine Agreement that were driven by the different site conditions (to those of Parkville), Mr Smith pointed to the hours of work and the 24/7 shift coverage requirement that applied at Tullamarine[94]; and
· he stated that during the initial bargaining meetings held, the unions had not requested a comparison between the terms and conditions proposed to be included in the Draft Tullamarine Agreement and the terms and conditions in the 2021 Agreement that applied at Parkville[95];
Case for the Unions
The Unions contend that clause 1.8 of the 2021 Agreement makes provision for consultation and cooperation and that various obligations are created, for by example clause 1.8.3 which is titled ‘consultation obligations’. It is to the obligations found in clause 1.8.3(d) that questions 1 and 2 for determination are directed, whereas questions 3 & 4 are directed to the obligations set out in clause 1.8.3(e). The Unions contend that as clause 1.8.3(e) requires the provision of relevant information in writing for the purpose of discussions required at clause 1.8.3(d), the question as to compliance with clause 1.8.3(d) is dependent on the degree of compliance with clause 1.8.3(e).
Regarding cluse 1.8.3(d), the Unions contend that the obligation imposed is to discuss with the relevant employees the change, it’s effects, mitigative measures and invite employee views about the impact of the change ‘as soon as practicable’ after making its decision.
In relation to the requirement set out in clause 1.8.3(e), the Unions contend that Seqirus is required to provide ‘all relevant information about the change, including the nature of the change proposed’ (clause 1.8.3(e)(i)) and that there is no limitation other than the requirement that the information must be about the ‘change’ and that it must be relevant. The ‘change’ in the present dispute is that provided by sub-clause 1.8.6, being the construction and commissioning of a ‘new purpose built facility at Tullamarine’. The Unions contend that the obligation is significant and not to be limited by questions that may be asked of Seqirus or limited by internally chosen time frames.
Further, it is argued by the Unions that the change is not limited to the direct and immediate effects on the employees. That is made clear by clause 1.8.3(e)(ii) which requires Seqirus to provide in writing ‘information about the expected effects of the change on the employees’. This is said by the Unions to impose a broader obligation to include relevant information to employees including but not limited to work opportunities, terms and conditions of employment and transitional processes. The Unions argue that in respect of each of the matters set out in sub-clause 1.8.3(e) the obligation is clear that the required information is to be provided in written form.
The Unions contend that they are obliged to run an inferential case to the effect that the Respondent is in breach of its obligations as the Unions do not possess all the information held by Seqirus. They further argue that it being an inferential case, the Commission is required to examine what information is in all probability held by Seqirus compared with the information that has been provided.
While the Unions accept that Project Banksia is a significant, important, expensive, and long term project and that detail of specific matters associated with the project may change over time, they do not accept that the consultation obligations imposed by clause 1.8.3 are time limited. Specifically, information in the sense used in sub-clause 1.8.3(e) is to be provided when it becomes available. The Unions further contend that it is the type of information the Commission might infer is within Seqirus’ possession that its compliance by the provision of the documents attached to the Unions’ bundle of documents is to be measured. The Commission is further entitled to have regard to the existence of an IR strategy document referred to in correspondence from the ETU State Secretary to the Commission on 21 December 2023 which also attached a copy of the Australian Article.
Turning to compliance of Seqirus with its obligations under clause 1.8.3 of the 2021 Agreement the Unions’ fundamental contention is that Seqirus failed to provide all ‘relevant information’ in writing to the ‘relevant employees’ (i.e. Parkville employees) and their representatives and then discuss the effects of the ‘change’ as soon as practicable after the decision was made by Seqirus to build the new Tullamarine facility.
In making the above submission the Unions point to Seqirus’ decision to approve the project in November 2020 of which Parkville employees were notified in late 2020. Despite the date of the decision in 2020 and the multiple references throughout the documentation provided in these proceedings that points to Seqirus’ pursuit of a ‘fit for purpose enterprise agreement’ for the Tullamarine site, it was not until Seqirus tabled its Draft Tullamarine Agreement in late February 2024 that the effects on Parkville employees’ terms and conditions of employment (if they transferred to Tullamarine) was confirmed.
The Unions contend that the evidence reveals that the terms and conditions of employment to apply at Tullamarine, even if only at a general level, had been under consideration for a considerable period of time both prior to and following the November 2020 announcement of the project. As regards particular dates when key decisions on terms and conditions were ‘ticked off’, the Unions point to Mr Smith’s evidence that the draft Tullamarine Agreement was endorsed by Seqirus management in late 2023 and that prior to that date Mr Iser had put forward a number of papers to the leadership group that dealt with proposed conditions of employment. The progressive sign off on terms and conditions of employment and then the Draft Tullamarine Agreement in late 2023 means that Seqirus did not provide in writing or discuss with relevant employees the effects on those employees, vis a vis Tullamarine terms and conditions, as soon as practicable after the project decision was made.
The unions point to an Aide Memoir prepared by them that compares the terms of the 2021 Agreement with those contained in the Draft Tullamarine Agreement which reveals significant differences, differences that manifest in the removal of or diminished entitlements in the Draft Tullamarine Agreement. The Unions note that the vast majority of removed or diminished entitlements proposed do not appear to be changes driven by the particular operational requirements of Tullamarine. Significantly according to the Unions, there is a dearth of information in relation to those removed or diminished entitlements in the large volume of material provided by Seqirus in these proceedings said to evidence their consultation activities.
The Unions further submit that the consequence of the above-described failure to consult as required by clause 1.8.3 of the 2021 Agreement is that Parkville employees have been denied an opportunity to influence the terms and conditions that will prevail at the Tullamarine site. Moreover, the Unions contend that the approach of Seqirus is consistent with an IR strategy of negotiating the Tullamarine Agreement with a small cohort and excluding the potential influence of employees that may be affected by the negotiation of such agreement.
In answering the questions for determination, the Unions ask the Commission to answer question 3 first and that having regard to the dearth of written information on terms and conditions of employment proposed to apply at Tullamarine, the Commission should find that Seqirus has failed to provide the required information in writing to employees for the purpose of discussion. If the Commission finds that Seqirus has failed to comply with sub-clause 1.8.3(e), the Unions contend that it follows that Seqirus has also failed to comply with sub-clause 1.8.3(d).
In remedying its consultation failures, the Unions submit that the Commission should order that Seqirus provide the required information in writing to relevant employees about the proposed Tullamarine terms and conditions of employment, including the rationale for the changes (from the 2021 Agreement) and then hold discussions with those employees. Further, the unions contend that Seqirus should also withdraw the Draft Tullamarine Agreement that it has put forward in bargaining for the new agreement for the Tullamarine site. Once it has been withdrawn, then discussions conformable with clause 1.8.3 of the 2021 Agreement can proceed. As regards enterprise bargaining proceeding in respect of the Tullamarine site, the Unions contend that such bargaining can proceed concurrently with discussions taking place with Parkville employees consistent with consultation obligations under clause 1.8.3 of the 2021 Agreement.
Case for Seqirus
In answering questions 1 & 2 Seqirus submit that the Unions have failed to provide any submissions or evidence going to the operative obligation within clause 1.8.3(d), that Seqirus has failed to engage in the act of discussion with the relevant employees. In the absence of any submission or evidence Seqirus contend that the answers to questions 1 & 2 must both be ‘no’.
As regards questions 3 & 4, Seqirus contend that the Unions have sought to rely on a bundle of incomplete documents and expressed generalised criticisms about the inadequacy of the information contained in that bundle of documents. The Unions’ bundle of documents may be contrasted CSL submits with the far more voluminous material filed by it and which is set out in Mr Smith’s chronology of events, to which relevant documents are annexed.
Turning to the consultation obligations under clause 1.8.3(e) of the 2021 Agreement, Seqirus submit there are several applicable principles that apply. They are follows;
(i)The duty in clause 1.8.6 (and thus 1.8.3(e)) only began on 16 November 2021 when the 2021 Agreement commenced operation.
(ii)The duty is to provide ‘information’, not a duty to provide documents, and is not an open opportunity to agitate for the discovery of documents.
(iii)The duty is to provide ‘all relevant information’ of the kinds specified in (i) to (iii) and that the stipulation in (i) regarding ‘all relevant information’ carries through to (ii) & (iii).
(iv)There are limits to what is ‘relevant information’ in that;
a. firstly, the information must be relevant to the change, its nature and, its expected effects, or other matters that will likely affect employees and does not extend to ancillary or incidental information;
b. secondly, Seqirus is not required to disclose confidential or commercially sensitive information; and
c. thirdly, there are sensible limits that derive from the implication and the general law in that misinformation or information that is misleading or deceitful is not ‘relevant’ information.
(v)What is relevant will be a point in time question and depending on the particular information at issue, it is possible that at a point in time Seqirus may be able to provide some information but not in exhaustive detail because all information may not have crystallised.
(vi)The obligation in clause 1.8.3(e) is informed by the relevant employees’ interaction, and that where there is an obligation imposed on Seqirus, there is a corresponding obligation on employees to engage.
(vii)Employees’ engagement in consultation assists to identify what is ‘relevant information and where Seqirus has responded to queries form employees, and the queries have been exhausted, Seqirus is entitled to make a judgment that they have exhausted their duty to provide information.
(viii)An allegation that information is inadequate must be resolved by examining that information in context and that context includes placing the information within all other information exchanged to date, together with the status of the change that is the subject of consultation.
Having regard to the above principles Seqirus contend that in respect of information on job opportunities and job numbers at Tullamarine, Seqirus has provided ‘relevant information’ to Parkville maintenance employees at various stages. Seqirus also note that the Unions have not identified any particular piece of information, nor a point of time, to make good its case that Seqirus has failed to provide information about job opportunities and job numbers. Seqirus refers specifically to the following;
· In July 2023, a presentation was provided at an Engineering Functional Briefing to the Parkville maintenance employees that included information on the anticipated engineering department team structure, mapped current roles at the Parkville site to the future Tullamarine site and advised that it was expected that 8 mechanical trades and 8 instrument technicians would be required.
· On 26 October 2023, Seqirus advised in a letter to the Unions that the estimated maintenance trades numbers required at Tullamarine were estimated to be 17.
· On 15 February 2024, Seqirus sent an email to the Unions advising of the expected ramp-up of numbers at the Tullamarine site in 2024 with an additional 30 roles being required between February and the end of December 2024.
· On 6 March 2024, Seqirus sent a letter to the Unions advising that it did not anticipate recruiting any further maintenance roles at Tullamarine until the second half of 2025.
As to the provision of information on conditions of employment proposed to apply at Tullamarine, Seqirus refers to the following;
· Seqirus has answered various questions from the Unions regrading conditions of employment to apply at Tullamarine in correspondence dated 26 October, 15 & 21 November 2023.
· The template contract of employment that Seqirus would seek to apply at Tullamarine was provided to all maintenance employees on 24 November 2023.
· More recently following the commencement of enterprise bargaining for an agreement to apply at Tullamarine, Seqirus has shared information about what it seeks in a proposed enterprise agreement for the Tullamarine site.
As to the Unions’ submission that the commencement of bargaining for a Tullamarine agreement has effectively denied Parkville employees an opportunity to influence the terms and conditions of employment that will apply to them at Tullamarine, Seqirus contend that is an artificial argument. That is because Seqirus submits that it is bargaining with the very same unions that are covered by the 2021 Agreement and therefore stand in the shoes of Parkville employees. Turning to the Unions’ complaint that bargaining for the Tullamarine agreement has displaced the consultation obligation under the 2021 Agreement Seqirus point out that they have and continue to share all information in respect of bargaining for the Tullamarine agreement. In terms of the temporal aspect of when the Tullamarine terms and conditions were finalised, Seqirus point to the evidence of Mr Smith that the final Draft Tullamarine Agreement was not approved until late 2023 which was just prior to Mr Iser advising the Unions that it would shortly be in a position to commence bargaining for the Tullamarine agreement.
With respect to how many and which of the Parkville employees will be or are expected to be employed at Tullamarine and over what timetable, Seqirus submits that the Unions have not identified any particular information to test the allegation that it has failed to provide the relevant information. It also refers to the information summarised above at [45] as evidence of it providing information on job numbers and transitional arrangements in a timely manner as information details matured.
Finally, Seqirus submit that the Unions’ reference to the Banksia ER Strategy Document for the purpose of answering question 3 is misconceived. That is because that document was created in 2020, was not ‘relevant’ for the purpose of clauses 1.8.3(3), nor directly relevant for the purposes of clause 1.7.2(c)(iv), the document was a ‘work-in-progress’ that canvassed potential options, was plainly deliberative in nature, is inutile given enterprise bargaining has now commenced for a Tullamarine agreement, it is a document and not information and the document ‘may be commercially sensitive or confidential’ within the meaning of clause 1.7.2(c)(iv) of the 2021 Agreement.
Seqirus submit that the Unions have not made out a persuasive evidentiary case that Seqirus has failed to meet its consultation obligations and for the that and above reasons the answer to all questions must be ‘no’. It notes however that the Tullamarine facility will not be fully operational until 2026 (on current estimates), that consultation has some way to go and that Seqirus intends to continue to consult with employees and their representatives.
Consideration
Clause 1.8 of the 2021 Agreement deals with ‘Consultation and Cooperation’. Clause 1.8.1 states that the parties agree to a process of ongoing co-operation and consultation in respect of various matters that relevantly includes ‘Seqirus continuing requirement to implement change in light of changes to business circumstances, market needs and company structure’ (clause 1.8.1(c)). As earlier set out, the specific consultation obligations are then set out at clause 1.8.3. In the present matter, the Unions contend that Seqirus has failed to comply with its obligations under clause 1.8.3, and in particular with sub-clauses 1.8.3(d) & (e) in respect of its new manufacturing facility at Tullamarine. Before turning to the questions for determination it is necessary to consider the clause and determine the obligations that arise therein.
Clause 1.8.3(a)(i) relevantly establishes the pre-condition that gives rise to the consultation obligations set out under clause 1.8.3. The pre-condition is that Seqirus ‘has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise and the change is likely to have a significant effect on employees covered by this Agreement’. A ‘major change’ is likely to have ‘a significant effect on employees’ if it has any of the features listed in sub-clause 1.8.3((h) which relevantly includes termination of employment, alteration of hours of work and major change to the composition, operation or size of Seqirus’ workforce.
The language in clause 1.8.3(a) is clear in that a ‘definite decision to introduce a major change’ must have been made rather than a decision simply having been proposed, considered or contemplated. On a ‘definite decision’ having been made, the command is clear in that Seqirus must notify the relevant employees of the decision to introduce the major change. The ‘relevant employees’ are those employees that are likely to be affected by the major change. While the scope of clause 1.8.3 arguably extends to encompass the construction and operation of the new Tullamarine facility as a ‘major change’, clause 1.8.6 removes any potential doubt by explicitly referring to construction of the new facility and then states that Seqirus will consult with employees in relation to the new facility in accordance with clause 1.8.3.
While clause 1.8.3(a) requires that relevant employees must be ‘notified’ of the change, it does not specify the time period within which the notification must occur. It can be seen however that discussions with relevant employees pursuant to clause 1.8.3(d) are required to be held ‘as soon as practicable’ after the decision has been taken by Seqirus. To allow those discussions to occur ‘as soon as practicable’ after the decision has been taken it follows that the anterior steps of ‘notification’ of the ‘major change’ and appointment/recognition of representatives for the purpose of consultation must have also occurred in close temporal proximity to the timing of the ‘definite decision to introduce a major change’.
Sub-clauses 1.8.3(b) & (c) then deal with the rights of the ‘relevant employees’ to appoint a representative for the purpose of consultation under clause 1.8.3 and to have that appointment (if properly notified) recognised by Seqirus.
As to the obligation of Seqirus to discuss the ‘major change’ with relevant employees per clause 18.3(d), discussions must take place ‘as soon as practicable’ after the decision has been made. I accept that the language ‘as soon as practicable’ imposes an obligation on Seqirus to hold those discussions without unreasonable delay. In those discussions Seqirus must discuss the introduction of the change, the effect the change is likely to have on the employees, measures to mitigate the adverse effects of the change on employees and Seqirus must also invite employees to give their views about the impact of the change.
The obligation to undertake discussions in accordance with clause 1.8.3(d) is not in my view confined to a single point in time following a decision to introduce a major change that has significant effects on employees. That is because matters arising in relation to the introduction of a change, the effects of the change and mitigative measures being taken may by necessity be progressively developed or evolve over time. That is self-evidently more likely to be the case with a change of the type in the present matter, being the construction and operation of the new Tullamarine manufacturing facility that will ultimately replace the existing Parkville facility, and which is a project extending over several years. It follows that the obligation to hold discussions in relation to the change is an ongoing obligation in circumstances where the matters set out in sub-clauses 1.8.3(d)(i)-(iv) may change over time and/or progressively mature. That said, the initial discussion with relevant employees or any subsequent discussions held over time must still take place ‘as soon as practicable’ after the decision referred to in clause 1.8.3(a) has been made.
Turning now to clause 1.8.3(e), obligations are also imposed on Seqirus to provide to the relevant employees certain information in writing for the purposes of the discussions required pursuant to clause 1.8.3(d). For the phrase ‘for the purpose of such discussions’ to be sensibly read in the context of the clause, the relevant information in writing must be provided to employees prior to or at the time of the ‘discussions’. To construe it otherwise would defeat the apparent purpose of the obligation, that is to provide employees with written information that enables them to understand and properly engage with Seqirus over the major change. The information in writing required is that of ‘all relevant information about the change, including the nature of the change’ and ‘information about the expected effects of the change on employees’ and ‘any other matters likely to affect the employees’.
As observed above in relation to the ongoing obligation to discuss the change and its effects, the obligation to provide information in writing is also an ongoing obligation as decisions and information relating to the change progressively evolves and matures. The information required to be provided must be ‘relevant information’ in the sense that it relates to the change, its nature, expected effects and any other matters likely to affect employees. It (the obligation) does not in my view extend to ‘all possible information’ or information that is incidental or ancillary. Nor does the obligation under clause 1.8.3(e) compel Seqirus to provide specific documents that may be sought by employees although Seqirus may choose to do so to discharge its obligation to provide ‘relevant information’ at a particular point in time. It is also clear from sub-clause 1.8.3(f) that Seqirus is not required to disclose confidential or commercially sensitive information as part of its provision of ‘information in writing’ to relevant employees.
What is ‘relevant information’ at a particular point in time will depend on the circumstances. The timing and granularity of the information able to be provided in writing is likely to be dependent on the maturity of plans and/or decision making relating to the major change. It follows that Seqirus may be in full compliance with its obligations pursuant to clauses 1.8.3(d)&(e) at a particular point in time but may not be compliant at a subsequent point in time by reason of having failed to provide and discuss ‘relevant information’ related to the change with employees when particular matters related to the change have evolved or crystallised. The timely provision of ‘relevant information’ as it becomes available is certainly implicit if not explicit given Seqirus’ obligation to provide the ‘relevant information’ in writing for the purposes of discussions, where such discussions are to be held as soon as practicable after the decision to introduce the major change is made.
As to Seqirus submission that the ‘relevant information’ to be provided in writing is informed by employees’ level of engagement, I accept that employees may through the process of consultation identify particular matters they wish to discuss or receive information on regarding the ‘change’. While employee engagement may assist Seqirus identify relevant information to be provided in writing and to hold discussions regarding same, employee engagement or the lack of it perhaps, does not in my view relieve Seqirus of an obligation to provide what is objectively assessed to be ‘relevant information’ at the appropriate time in the context of a particular major change. It follows that I do not accept that Seqirus is relieved of its ongoing obligation to provide relevant information and to hold discussions with employees about the major change pursuant to clauses 1.8.3(d) & (e) simply because it may have answered all questions posed by employees regarding the change at a particular point in time.
The Unions also contend that in order to fully discharge its obligation to discuss the ‘major change’ pursuant to clause 1.8.3(d) Seqirus must have complied with what the Unions says is an anterior step, that of providing all relevant information in writing to the relevant employees for the purposes of those consultation discussions. I do not accept that submission. It is conceivable that discussions held with the relevant employees pursuant to sub-clause 1.8.3(d) proceeded without employees having the benefit of ‘all relevant information’ having been provided in writing to them prior to or at the discussions and yet despite this all of the matters set out in sub-clauses 1.8.3(d) & (e) may be covered in such discussions. I accept however it is more likely that Seqirus will be able to discharge its obligations under sub-clause 1.8.3(d) if it is has also complied with sub-clause 1.8.3(e). That will particularly be the case in circumstances where the nature and effects of the major change are complex and evolving.
It follows from the foregoing that in order to assess whether Seqirus has complied with its consultation obligations under clauses 1.8.3 and 1.8.6 of the 2021 Agreement in relation to the new Tullamarine facility, the following matters are relevant;
has Seqirus made a ‘definite decision to introduce major change’ within the meaning of clauses 1.8.3(a)(i) and 1.8.3(h);
(ii)has Seqirus notified the relevant employees of its decision to introduce the ‘major change’;
have employees appointed representatives for the purposes of consultation and if so has Seqirus recognised those representative’s (sub-clauses 1.8.3(b) & (c));
(iv)have discussions been held with the relevant employees ‘as soon as practicable’ after Seqirus made the decision to introduce the ‘major change’ (sub-clause 1.8.3(d));
were each of the matters set out in sub-clauses 1.8.3(d)(i)-(iv) dealt with in the above-referred discussions;
(vi)has Seqirus provided to employees for the purposes of the above-referred discussions all relevant information in writing that deals with the matters set out in sub-clauses 1.8.3(e)(i)-(iii);
has Seqirus declined to provide any written information or documents sought by employees and if so, did those documents fall into the category of excluded material, that being the information that is confidential or commercially sensitive (sub-clause 1.8.3(f)); and
has Seqirus given prompt and genuine consideration to matters raised by employees about the ‘major change’ (sub-clause 1.8.3(g)).
As earlier stated, it is compliance of Seqirus with sub-clauses 1.8.3(d) & (e) of the 2021 Agreement that is in dispute and not sub-clauses 1.8.3(f) & (g) although compliance with those sub-clauses may also be relevant to determining whether Seqirus has met its obligations under clause 1.8.3. The Unions have not advanced a case and nor has Seqirus been required to answer whether sub-clauses (f) & (g) have been complied with. As such, in determining the dispute I do not intend to deal with matters that arise in relation to those sub-clauses.
Has Seqirus made a ‘definite decision to introduce major change’ within the meaning of clauses 1.8.3(a)(i) and 1.8.3(h)?
On 15 November 2020, Seqirus announced to its staff that a decision had been made to build a new ‘world class, next generation influenza vaccine manufacturing facility at Tullamarine, Victoria’. Consequences of the decision include that when the Tullamarine facility becomes fully operational in 2026, the existing Parkville manufacturing facility will cease production, resulting in a combination of the progressive transfer of a large number of existing Parkville employees to the new facility with the balance of the workforce to be made redundant. It is uncontroversial and I accept that Seqirus made a ‘definite decision’ in November 2020 to introduce a ‘major change’ that would have ‘significant effects on employees’ within the meaning of sub-clauses 1.8.3(a)(i) and 1.8.3(h).
Were the relevant employees notified of Seqirus’ decision to introduce the ‘major change’?
Staff of Seqirus, including employees at Parkville who stood to be affected by the announced ‘major change’, were notified in an email from the Chief Operating Officer Paul McKenzie on 15 November 2020 of the decision. The Unions do not contend otherwise, and I accept that Seqirus complied with its obligation to notify relevant employees of its decision to introduce a ‘major change’.
Have employees appointed representatives for the purposes of consultation and if so has Seqirus recognised those representative’s (sub-clauses 1.8.3(b) & (c))?
The relevant employees, those being Parkville employees, have been represented in consultation discussions by the unions covered by the 2021 Agreement. It is not contested, and I find that Seqirus has recognised the appointment of representatives (by Parkville employees) for the purposes of consultation.
Have discussions with the relevant employees on the matters set out at clause 1.8.3(d)(i)-(iv) been held ‘as soon as practicable’ after Seqirus made the decision to introduce the ‘major change’ (sub-clause 1.8.3(d)& (e))?
It is apparent from the background set out above that following announcement on 15 November 2020 of the decision to build the new Tullamarine facility, Seqirus conducted meetings with employees through a range of different forums. This has so far included the conduct of Town Hall meetings of employees of which there have been at least nine such meetings held between 16 November 2020 and 8 February 2024. Seqirus has supplemented the Town Hall meetings with functional and department meetings which has relevantly included meetings in July and September 2023 involving Parkville maintenance employees as well as one on one employee meetings. There have also been further direct consultation meetings involving maintenance employees and the Unions on 18 April, 14 & 29 September, 23 & 30 October, 15 & 22 November, and 6 & 11 December 2023.
The apparent focus of the Town Hall meetings has evolved over time as the project has progressed. This can be seen in the subject matter of those briefings which is summarised above at [14], with the focus initially being on the location and scope of the project. Over time as the project has progressed, milestone updates and project scope refinement were included in matters reported to staff with the focus more recently going to staff transition planning, Parkville exit planning, Tullamarine departmental structures and the people strategy. The functional/departmental meetings involving maintenance staff conducted in July and September 2023 focussed in particular on the operating model for the new site, organisational design plans and structure, role mapping from Parkville to Tullamarine and the proposed shift structure for Tullamarine.
As regards the consultation meetings, discussions have traversed a range of matters over several meetings in 2023 including the proposed Tullamarine shift structures, enterprise agreement coverage at Tullamarine, anticipated maintenance employee numbers required at Tullamarine, wage rates/conditions to apply at Tullamarine, Seqirus’ recruitment strategy for Tullamarine, the consequent employment opportunities for Parkville employees and the Banksia ER Strategy document.
Turning firstly to whether Seqirus has discussed the ‘introduction of the change’ (sub-clause 1.8.3(d)(i)) as ‘soon as practicable’ after making the ‘decision’, it is necessary to firstly observe that the first Town Hall meeting was held immediately following the project announcement in November 2020. From that point, regular Town Hall meetings were held in the period between November 2020 and February 2024, with three such meetings held in 2023. In reviewing the subject matter of those meetings, it is apparent that as the project has progressed the focus of those meetings has evolved from the ‘big picture’ to a more granular focus.
This above-referred more granular focus can be seen for example in the March 2023 meeting which, in addition to providing an update on construction progress, also dealt with the Parkville transition plan, Tullamarine department structures and the site training strategy. This more granular focus continued in July and October 2023 when the matters discussed included Parkville exit plans, training and the people strategy. It is unremarkable that the detail of Tullamarine transition arrangements and the impact on Parkville employees has been progressively developed and discussed given the length of the project which is over several years.
It is clear enough that the ‘introduction of the change’, that being the ‘building of a new purpose built facility at Tullamarine’ has been discussed with Parkville employees in various forums in a progressively more detailed and granular manner. The scope and timing of the project, updates on construction progress and the foreshadowed impact on employees in terms of transition planning, Parkville exit planning, training and the people strategy are all matters going to the ‘introduction of the change’. There is no material in evidence that persuades me that the ‘introduction of the change’ has not been discussed as ‘soon as practicable’ after the decision was announced on 15 November 2020 having regard to the scale and timeline of the project. Of course, that obligation to discuss the ‘introduction of the change’ remains live as the project progresses to its planned conclusion in 2026.
Turning to whether Seqirus has, ‘as soon as practicable’ after the project decision was made, discussed the effects the change is likely to have on employees (sub-clause 1.8.3(d)(ii)), it is necessary to identify what effects the change is likely to have on Parkville employees. While not exhaustive, it seems uncontroversial between the parties, and I accept that likely effects on Parkville employees include the potential employment opportunities for Parkville employees at Tullamarine and the terms and conditions of employment that will apply at the new facility including the roster/hours of work. What is at issue between the parties is whether those likely effects were discussed as soon as practicable after the decision to build the new facility was made in November 2020.
One of the likely effects of the change is that of the employment opportunities, or lack of, for Parkville maintenance employees at Tullamarine. The current maintenance workforce at Tullamarine consists of seven maintenance fitters and four electrical/instrument technicians who are all engaged on daywork. It is apparent from Mr Smith’s evidence and the record of the various meetings held that the number of maintenance trades required at Tullamarine was discussed at the times set out below.
At the Engineering functional briefing in July 2023, Seqirus foreshadowed that sixteen maintenance trades roles would be required at Tullamarine. At the 28 September 2023 consultation meeting the numbers required at Tullamarine were again confirmed as eight mechanical fitters (on shift) and eight electrical/instrument trades (on shift). At the following consultation meeting on 6 October 2023, Seqirus advised there would be one additional mechanical utilities trades role required that would not be required to work 12-hour shifts. At the 23 October 2023 consultation meeting, Seqirus discussed its preference for recruiting for Tullamarine roles from existing Parkville employees. Recruitment opportunities were further discussed at the 30 October 2023 consultation meeting and then at the 6 December 2023 consultation meeting an expressions of interest process (for three Tullamarine maintenance team roles advertised in November/December 2023) was discussed.
The employment opportunities for Parkville maintenance employees at Tullamarine has been the subject of discussion over several months in 2023 as Seqirus moved to commence filling a small number of roles in early 2024. It was not seriously argued in proceedings by the Unions that there was inadequate discussion about the employment opportunities for Parkville employees. The information shared in the meetings discloses Seqirus’ preference to recruit from the existing Parkville employees, that an increased number of tradespeople (compared to Parkville) will be required when Tullamarine is fully operational in 2026 and that Parkville maintenance employees are able to apply for upcoming roles through the expression of interest process. In my view, Seqirus has met its obligation (to date) under sub-clause 1.8.3(d)(i) to discuss one of the likely effects of the change, that of the employment opportunities at Tullamarine.
It is also necessary at this point to say something about the Banksia ER Strategy document, which while accessed by some employees of Seqirus, is stated by Seqirus to be a confidential document that was part of early scenario planning. It has not been provided by Seqirus to employees or the Unions and nor is it in evidence in these proceedings. The Unions point to this document which dates to 2020 as indicating that a strategy was devised and is now being rolled out by Seqirus that will have the effect of denying Parkville employees an opportunity to influence the conditions of employment they will be subject to should they transfer to Tullamarine. While it is unnecessary in the present matter for me to determine the merits of that contention, Seqirus’ unchallenged evidence is that the document in question was a discussion paper developed over three years ago and was neither endorsed, supported nor approved by Seqirus management. In these circumstances and to the extent it may be argued, I do not accept that Seqirus was required to provide to relevant employees ‘in writing’ the information contained in the Banksia ER Strategy document.
Should the Commission make a determination specifying the ways in which Seqirus has failed to meet its obligations under clause 1.8.3 and if so the steps by which those failures may be remedied?
I now turn to consider whether the Commission should make determinations in relation to any identified consultation failures and what if any steps should be taken to remedy those failures.
Before considering the specific consultation deficiencies identified above and how they may be remedied, it is necessary to say something about the context in which the ongoing consultation obligations apply. Seqirus has commenced enterprise bargaining for an agreement to apply at the Tullamarine site. It had by late January 2024 engaged approximately 40 employees at the Tullamarine site. That number will progressively grow to approximately 400 over the next 18 months as the Tullamarine facility moves towards full operations at which point the Parkville site will cease production. The employees at Tullamarine have nominated bargaining representatives in relation to bargaining for a Tullamarine agreement which relevantly includes the AMWU and ETU, those Unions also representing Parkville maintenance employees for the purpose of consultation pursuant to clause 1.8.3 and clause 1.8.6 of the 2021 Agreement. To borrow the phrase used by Seqirus, the Unions effectively ‘stand in the shoes’ of both the Parkville maintenance workforce and their members now engaged at the Tullamarine site.
The conduct of enterprise bargaining that has been initiated in relation to the Tullamarine site and the processes for the approval of an agreement if ‘made’ must be undertaken within the framework set out in Part 2-4 of the Act. Various rights and obligations established in Part 2-4 of the Act are conferred and imposed on Seqirus and its Tullamarine employees, those rights and obligations operating separately to the consultation rights and obligations that arise under the 2021 Agreement in respect of Parkville employees. The difficulty arises in my view in how those separate obligations of bargaining with Tullamarine employees (and their representatives) and also consulting Parkville employees (and their representatives) in accordance with the 2021 Agreement obligations can be met concurrently by Seqirus.
The above suggests that the interests of Parkville employees regarding the terms and conditions that will apply at Tullamarine are able to be represented by the Unions in bargaining for a Tullamarine agreement. This does weaken the force of the Unions’ argument that Parkville employees have been and continue to be denied an opportunity to influence the terms and conditions that will apply at Tullamarine. That said and as previously found, the consultation provisions of the 2021 Agreement require the new facility to be the subject of consultation, including the likely effects of the change. The obligations are clear.
As the matter before me is that of a s 739 dispute and relates to the disputed compliance of Seqirus with the consultation obligations in clauses 1.8.3 and 1.8.6 of the 2021 Agreement, it is only in relation to those consultation obligations that any determination can be made pursuant to sub-clause 1.7.2(b)(ii) in the present matter. It follows in my view that any determination made by me cannot impinge on the statutory rights of Seqirus, its Tullamarine based employees and their bargaining representatives in relation to enterprise bargaining for an agreement to apply at Tullamarine. Stated simply, I believe the Commission lacks power in this matter to make a determination that fetters the rights of the parties in bargaining for an agreement to cover the Tullamarine facility.
The above provides the context in which ongoing consultation obligations under the 2021 Agreement operate. It may as I have earlier observed raise a question as to the utility of consulting Parkville employees about Tullamarine conditions when the outcome of bargaining will ultimately settle those conditions. For their parts, the Unions contend there is not just an obligation but there is in fact utility in such consultation notwithstanding the practical reality of bargaining having commenced for a Tullamarine agreement.
The Unions further argue that consulting Parkville employees about Tullamarine conditions of employment may assist Seqirus in forming and evolving their bargaining position in respect of the Tullamarine agreement. This they say should be undertaken by Seqirus firstly withdrawing the Draft Tullamarine Agreement issued by it in late February 2024 and then engaging in genuine consultation with Parkville employees as a prelude to Tullamarine bargaining. Seqirus reject that argument and describe the Unions proposed approach as being artificial in circumstances where the Unions are involved in bargaining and where Parkville employees now have all relevant information on the state of bargaining at Tullamarine and will continue to be regularly updated on progress in those negotiations.
Turning now to the whether the Commission should make determinations specifying the way in which Seqirus has failed to meet its consultation obligations in respect to sub-clauses 1.8.3(d) & (e) and the steps by which it may remedy those failures. I have already set out above my findings regarding Seqirus’ non-compliance with its consultation obligations. Those deficiencies were in respect to holding discussions and providing information in writing for the purpose of such discussions in relation to Tullamarine conditions of employment. The identified deficiencies did not extend to the issues of Tullamarine rosters/hours of work and employment opportunities of which I have made positive findings that Seqirus has met its consultation obligations (to date). Having made the above findings it is appropriate to make determinations to that effect.
In considering steps to remedy the above-referred consultation failures I accept that the consultation obligations in the 2021 Agreement are not subject to limitation or conditioned in any way by enterprise bargaining initiated in relation to the Tullamarine facility. The required consultation cannot happen in a vacuum or be divorced from the concurrent Tullamarine bargaining process that has commenced. I accept however that independently of the bargaining process, Parkville employees ought to be progressively engaged pursuant to sub-clause 1.8.3(d) of the 2021 Agreement in relation to Tullamarine conditions of employment as bargaining for the Tullamarine agreement progresses. I do not accept however that Seqirus should be directed to withdraw its Draft Tullamarine Agreement for the simple reason that to do so would impinge on its rights in respect of bargaining and the bargaining rights of other parties in those negotiations. I decline to make such a determination.
Beyond the above specific step of withdrawing the Draft Tullamarine Agreement, the Unions did not advance detailed submissions on the manner in which consultation ‘discussions’ with Parkville employees should proceed concurrently with enterprise bargaining negotiations. It seems to me that having regard to the context described above, there would be utility in Seqirus holding periodical ‘discussions’ with Parkville maintenance employees as Tullamarine bargaining progresses. That would afford an opportunity for those employees to provide feedback to Seqirus on the matters the subject of bargaining, obtain firsthand information from Seqirus on the state of bargaining and specifically discuss particular matters of concern to Parkville employees in relation to proposed conditions of employment. While I see some utility in such discussions up to the point of a Tullamarine agreement being ‘made’ and then approved, beyond that point that I see no such utility as the opportunity of influencing the outcome beyond that point will have passed.
Regarding information in writing being provided to employees for the purpose of the above-referred discussions in respect of Tullamarine conditions of employment, I have previously observed that Seqirus has established a dedicated Tullamarine Enterprise Agreement 2024 site on its intranet on which all relevant documentation relating to bargaining is now available to employees. While the unions may contend there is additional information that ought to be provided in writing I am satisfied that the information now available to employees remedies the identified consultation failures. It is plain enough in reviewing the Draft Tullamarine Agreement that there are significant differences between the conditions proposed in that draft agreement and the existing 2021 Agreement. To the extent that there may be value in summarising those differences, Seqirus may consider whether a summary document is prepared and provided to Parkville employees. Beyond that suggestion, which Seqirus readily agreed to provide during proceedings, I am not persuaded that there is any other information in writing that ought to be provided by Seqirus to Parkville employees for the purpose of the discussions outlined above. This conclusion is reached on the basis that Seqirus continues to maintain and update the Tullamarine Enterprise Agreement 2024 site on its intranet as bargaining progresses.
Conclusion
It follows from the foregoing that the answers to the questions posed for determination are as follows;
1.In the circumstances, has the Respondent failed to discuss and consult with the relevant employees as required by subclauses 1.8.6 and 1.8.3(d) of the Seqirus Enterprise Agreement 2021(the Agreement) by failing, in relation to the change (the move to Tullamarine):
(a) to discuss the introduction of the change
(b) to discuss the effect the change is likely to have on the employees at Parkville?
The answer to 1(a) is ‘No’ and the answer to 1(b) is ‘Yes’.
2.If the answer to Question 1 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(a) the way in which the Respondent has failed to meet its obligations; and
(b) steps by which it may remedy its failure?
The answer to question 2(a) is ‘Yes’, Seqirus failed to discuss the terms and conditions (excluding rosters/hours of work) proposed to apply at the Tullamarine site with Parkville maintenance employees as soon as practicable after the decision was made to introduce the ‘major change’.
The answer to question 2(b) is ‘Yes’. Seqirus should, at appropriate points in time as enterprise bargaining progresses with respect to the Tullamarine site, hold discussions with Parkville employees in accordance with the requirements of sub-clause 1.8.3(d) including for the purpose of providing updates and seeking feedback from those employees on terms and conditions of employment proposed to apply at the Tullamarine site.
3.In the circumstances, has the Respondent failed to provide in writing to the relevant employees for the purposes of the discussions required by subclause 1.8.3(d) all information required to be provided in writing by subclause 1.8.3(e)(i), (ii) and (iii), including about job opportunities at Tullamarine, about expected numbers of jobs to be available at Tullamarine for current employees at Parkville and about conditions of employment at Tullamarine, including information about how many and which of the Parkville employees will be or are expected to be employed at Tullamarine and the timetable for same?
The answer to question 3 is ‘Yes’.
4.If the answer to Question 3 is “Yes”, should the Commission make a determination within the meaning of subclause 1.7.2(b) of the Agreement specifying:
(a) the way in which the Respondent has failed to meet its obligations; and
(b) steps by which it may remedy its failure?
The answer to question 4(a) is ‘Yes’. Seqirus failed to comply with sub-clause 1.8.3(e), but only insofar as it failed to provide ‘information in writing’ on terms and conditions of employment proposed to apply at the Tullamarine site prior to 28 February 2024, from which point all relevant information relating to Tullamarine enterprise bargaining and proposed terms and conditions of employment has been provided to employees via the Tullamarine Enterprise Agreement 2024 portal on Seqirus’ intranet site.
The answer to question 4(b) is ‘No’.
The matter is determined accordingly.
DEPUTY PRESIDENT
Appearances:
E White of Counsel for the Applicants.
L Howard of Counsel for the Respondent.
Hearing details:
2024.
Melbourne:
March 25, 26.
[1]AE513821.
[2] [2024] FWC 305.
[3] [2024] FWC 671.
[4] Exhibit R5, Witness Statement of Jonah Smith, dated 7 March 2024, at [4]-[5]
[5] Ibid at [7]-[9]
[6] Email from CEO to Seqirus employees, dated 15 November 2020, at Court Book p.445
[7] Exhibit R5, Annexure JS-1 Chronology of Consultation Events and Documents Bundle, at Court Book p.344
[8] Exhibit R1, Seqirus Intranet site snapshots
[9] 16 November 2020 Town Hall Presentation, at Court Book p.448
[10] 10 December 2020 Town Hall Presentation, at Court Book p.478
[11] 28 October 2021 Town Hall Presentation, at Court Book p.505
[12] 16 December 2021 Town Hall Presentation, at Court Book p.533
[13] November 2022 Town Hall Presentation, at Court Book p.560
[14] March 2023 Town Hall Presentation, at Court Book p.584
[15] July 2023 Town Hall Presentation, at Court Book p.744
[16] 19 October 2023 Town Hall Presentation, at p.814
[17] 8 February 2024 Town Hall Presentation, at Court Book p.900
[18] See for example; ‘Project Banksia town hall replay now available’, dated 16 November 2020, at Court Book p.464, ‘Parkville Announcement: Townhall questions answered’, dated 17 December 2020, at Court Book p.500, ‘Project Banksia update’, dated 28 October 2021, at Court Book p.531, ‘Australian Operations Transition Town Hall – March 2023 Parkville Transition Principles’, dated 4 April 2023, at Court Book p.607
[19] ‘Engineering Functional Briefing July 2023’ pack, at Court Book p.619
[20] ‘Australian Operations Departmental Briefings September 2023’ at Court Book p.783
[21] Ibid at pp.787-790
[22] Email from Joshua Iser to Nathan Jenkins, dated 17 November 2020. Titled ‘Employee Communications – FAQs Final.pdf’, at Court Book p.466
[23] Email from Joshua Iser to Alistair Thomas, dated 18 November 2020, titled ‘Employee Communications – FAQs Final.pdf’, at Court Book p.471
[24] Exhibit R5, Annexure JS-1, at Court Book p.348
[25] Email from Joshua Iser to Peter Foreman, dated 28 April 2024, titled ‘Re: Tullamarine Transition and EBA’, at Court Book p.615
[26] Letter from Chris Spindler to Travis Millen, dated 30 August 2023, titled ‘Re: Failure to Consult about a Major Change’, at Court Book p.780
[27] Letter from Travis Millen to Chris Spindler, dated 1 September 2023, at Court Book p. 782
[28] Exhibit R5, Annexure JS-1, at Court Book p.351
[29] Ibid
[30] Ibid
[31] Letter from Raoul Wainwright to Travis Millen, dated 18 October 2023, titled ‘Re: Matter number C2023/5806’, at Court Book p.812
[32] Exhibit R5, Annexure JS-1, at Court Book p.353
[33] Letter from Joshua Iser to Raoul Wainwright, dated 26 October 2023, titled ‘Re: Matter number C2023/5806’, at Court Book p.843
[34] Exhibit R5, Annexure JS-1, at Court Book p.353
[35] Letter from Raoul Wainwright to Joshua Iser, dated 8 November 2023, titled ‘Re: C2023/5806’, at Court Book p.853
[36] Letter from Joshua Iser to Raoul Wainwright, dated 15 November 2023, titled ‘Re: Matter number C2023/5806’, at Court Book p.855
[37] Exhibit R5, Annexure JS-1, at Court Book p.354
[38] Email from Mark Nicholson to Joshua Iser, dated 17 November 2023, titled ‘Questions from the trades group’, at Court Book at p.861-862
[39] Email from Joshua Iser to Mark Nicholson, dated 21 November 2023, titled ‘Re: Questions from the trades group’, at Court Book p.859-861
[40] Exhibit R5, Annexure JS-1, at Court Book p.355
[41] Email from Anthony Wrzesinski to Parkville maintenance trades staff, dated 24 November 2023, titled ‘Template Contract (Tullamarine) Level 1-4’, at Court Book p.864
[42] Exhibit R5, Annexure JS-1, at Court Book p.356
[43] Ibid
[44] Exhibit R2, Tullamarine – Operating Model Assumptions and roster options
[45] Transcript at PN139
[46] Email exchange between Ivan Dokoza and Mark Nicholson, dated 13-15 December 2024, titled ‘Follow up discussion around interview for Tullamarine, at Court Book p. 886
[47] Letter from Jonah Smith to Mr Crundwell and Mr Spindler, dated 6 March 2024, titled ‘Re: Consultation – Tullamarine’, at Court Book p.1093
[48] November 2022 Australian Operations Town Hall, at Court Book p.569
[49] March 2023 Australian Operations Town Hall, at Court Book p.597
[50] July 2023 Engineering Functional Briefing, at Court Book pp.625-628
[51] July 2023 Australian Operations Town Hall, at Court Book p.770
[52] Exhibit R5, Annexure JS-1, at Court Book p.357
[53] The Australian Article, dated 27 November 2023, titled ‘Industrial bastardry: CSL’s secret plan to cut pay, sack staff’, at Court Book p.35
[54] Letter from Marcus de Alwis (General Counsel CSL Seqirus) to Gordon Legal, dated 30 November 2023, titled ‘CSL Seqirus Response to Article in The Australia’, at Court Book p.881
[55] Email from Joshua Iser to Chris Spindler and Shannon Crundwell, dated 20 December 2023, titled ‘Seqirus Tullamarine Update’, at Court Book p. 894
[56] Email from Joshua Iser to Chris Spindler and Shannon Crundwell, dated 30 January 2023, titled ‘Initiation of Bargaining – CSL Seqirus (Tullamarine), at Court Book p. 898
[57] Email from Shannon Crundwell to Joshua Iser, dated 5 February 2024, titled ‘Re: ‘Initiation of Bargaining – CSL Seqirus (Tullamarine), at Court Book p. 896
[58] Exhibit R3, Email from Jonah Smith and Simon Buensch to staff, dated 6 February 2024, titled ‘Tullamarine Enterprise Agreement’
[59] Email from Joshua Iser to Mr Crundwell, dated 7 February 2024, titled ‘Initiation of Bargaining – CSL Seqirus (Tullamarine), at Court Book p. 896
[60] Email from Shannon Crundwell to Joshua Iser, dated 8 February 2024, titled ‘Re: ‘Initiation of Bargaining – CSL Seqirus (Tullamarine), at Court Book p. 895
[61] Email from Joshua Iser to Mr Crundwell, dated 9 February 2024, titled ‘Initiation of Bargaining – CSL Seqirus (Tullamarine), at Court Book p. 895
[62] Exhibit R5, Annexure JS-1, at Court Book p.359
[63] Email from ‘Tullamarine EA Negotiating Team’ to staff, dated 12 February 2024, titled ‘EA Today #2; Bargaining Commences’, at Court Book p. 936
[64] Email from Joshua Iser to AMWU, ETU and UWU organisers, dated 13 February 2024, titled ‘Re: CSL Seqirus – Bargaining Meetings’, at Court Book p. 940
[65] Email from Shannon Crundwell to Joshua Iser, dated 14 February 2024, titled ‘Re: CSL Seqirus – Bargaining Meetings’, at Court Book p. 939
[66] Email from Joshua Iser to AMWU, ETU and UWU organisers, dated 15 February 2024, titled ‘Re: CSL Seqirus – Bargaining Meetings’, at Court Book p. 938
[67] Bargaining Meeting #2 Tullamarine Enterprise Bargaining presentation, at Court Book p.944
[68] Exhibit R5, Annexure JS-1, at Court Book p.360
[69] Draft ‘CSL Seqirus Tullamarine Enterprise Agreement 2024’, at Court Book 955
[70] Email from Joshua Iser to AMWU, ETU and UWU organisers, dated 28 February 2024, titled ‘Action Items: Seqirus Bargaining #2’ at Court Book p.942
[71] Exhibit R4, Email from Tullamarine EA Negotiating Team to staff, dated 7 March 2024, titled ‘EA Today #4 – Update on Negotiations’
[72] Exhibit R2, Tullamarine Enterprise Agreement 2024 intranet site
[73] Transcript at PN180
[74] Ibid at PN184-PN185
[75] Ibid at PN197
[76] Ibid at PN199-PN200
[77] Ibid at PN202 & PN 210
[78] Ibid at PN213
[79] Ibid at PN213, PN215, PN221, PN225, PN227
[80] Ibid at PN759-PN774
[81] Ibid at PN247-PN249
[82] Ibid at PN352
[83] Ibid at PN356
[84] Ibid at PN366
[85] Ibid at PN456, PN466-PN467
[86] Ibid at PN469
[87] Ibid at PN470
[88] Ibid at PN747-PN753
[89] Ibid at PN753
[90] Ibid at PN473-PN474
[91] Ibid at PN518-PN522
[92] Ibid at PN527-PN528
[93] Ibid at PN542-PN545
[94] Ibid at PN630
[95] Ibid at PN718
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