"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Wilmar Sugar Pty Ltd (formerly Sucrogen Australia Pty Ltd)

[2014] FWC 160

[2014] FWC 160

FAIR WORK COMMISSION

DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Wilmar Sugar Pty Ltd (formerly Sucrogen Australia Pty Ltd)
(C2013/4543)

Sugar industry
COMMISSIONER SPENCER	BRISBANE, 21 JANUARY 2014

Alleged dispute about - facilitative provisions - proposed RDO changes - whether approval unreasonably withheld.

[1] This decision relates to an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute, the subject of this decision, relates to the application of clause 3.1 - Facilitative Provisions, of the Sucrogen Enterprise Agreement 2012 (the Agreement). Applicant is in dispute with Wilmar Sugar Pty Ltd (formerly Sucrogen Australia Pty Ltd) (the Respondent).

[2] The matter was brought before the Commission in conference, but the dispute was unable to be resolved, consequently Directions were issued, by consent, in accordance with the disputes procedure.

[3] While a formal question for arbitration was not resolved between the parties, the parties are in agreement that the question for consideration is:

Whether the Respondent has unreasonably withheld approval for employees to change RDO arrangements at the Kalamia Mill 1

[4] The exact RDO (Rostered Day Off) arrangement proposed by the Applicant varied during these proceedings. This will be discussed further below.

[5] The Applicant was represented by Ms Lisa Butler, Industrial Officer of the AMWU. The Respondent was represented by Ms Deanna McMaster, Senior Associate of Minter Ellison Lawyers.

[6] While not all of the submissions and evidence in this matter are referred to in this decision, all of such have been taken into account.

Background

[7] The parties in this matter have provided some background information, largely not in dispute, which is of assistance in understanding the nature of the dispute, and the ultimate question for consideration by the Commission.

[8] At present, employees at the site utilise RDOs once per fortnight, during the maintenance season. In the past RDOs were utilised on the Monday of the relevant fortnight but were, during the early part of the 2000s, moved to occur on Fridays. This change (from Monday to Friday) occurred to introduce consistency to the practices at the various sugar mills in the Burdekin region - of which Kalamia is one.

[9] The Applicant submitted that a clause was negotiated, to be part of the facilitative procedure, in the 2010 Agreement which read:

“3.1(b) It is agreed that each region will have common hours of work and common RDOs in place from the 2007/8 maintenance season. Any exceptions to this will be dealt with through the application of the Facilitative Process.”

[10] The Applicant stated that during the life of the 2010 Agreement the mills in the Burdekin region did not share a common RDO - at Invicta and Pioneer, the Applicant stated that RDOs were split across Monday and Friday.

[11] Subsequently, during negotiation for the current Agreement, the commonality clause (referred to above), was removed. 2

[12] Specific to the circumstances of this dispute, in around April 2013, employees at the Kalamia mill, approached the Respondent with a petition. 3 The petition, according to the Applicant, clearly indicated that a majority of employees “consented” to a change in RDO from Friday to Monday. The petition in evidence has a list of names under three headings - “MONDAY”, “DON’T CARE” and “FRIDAY”. The list under the heading “MONDAY” is longer than each other list.

[13] It is noted that the petition doesn’t indicate how it was created, how agreement was taken from each employee, or a specific indication from any individual employee. The names in each list are written in the same handwriting, it is likely that they were written by the same person. Mr Wayne Cislowski, Engineering Manager of the Respondent, stated that the petition does not account for some 98 employees covered by the Agreement who would be “directly affected” by the proposed change. 4 These 98 employees, who Mr Cislowski stated were not represented on the petition, represent more than 50% of those employees “directly affected”. The Applicant has not contended that this is incorrect.

[14] Following the initial conference in this matter, the Applicant sought the views of affected employees as to a revised proposition - splitting RDOs across Monday and Friday. This revision was made because, the Applicant says, it was hoped to alleviate some of the reasons for refusing to consent raised by the Respondent, in relation to resource sharing. This revised proposition was also rejected by the Respondent.

Relevant provisions of legislation and the Agreement

[15] The dispute was brought pursuant to s.739 of the Act. Section 739 provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[16] Section 738 provides:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[17] The dispute was brought pursuant to the terms of an enterprise agreement. Pursuant to the decision of Fair Work Australia, as presently constituted, of 21 December 2012, the Agreement commenced operation on 28 December 2012. 5 Clause 3.2, Grievance and Dispute Settling Procedure, of the Agreement, so far as is relevant, provides:

“3.2 Grievance and dispute settling procedure

The matters to be dealt with in this procedure shall include all grievances or disputes between an employee or groups of employees and Sucrogen in respect to any industrial matter and all other matters arising from the application or interpretation of a provision contained in this Enterprise Agreement...

3.2.5 Where the matter in dispute remains unresolved Fair Work Australia may exercise any method of dispute resolution permitted by the Act and in conjunction with the spirit and intent as outline in Part 2 - Objectives Commitment of this Agreement that it considers appropriate to ensure the settlement of the dispute in conjunction with 3.2.6...”

[18] Clause 3.1 - Facilitative Provisions of the Agreement, provides:

“3.1 Facilitative Procedure

3.1.1 (a) Facilitative Industrial agreement provisions such as hours of work – day / shift, meal breaks, 10 ordinary hours, staggered starting and finishing times, spread of working hours and working between 6.00am –6.00pm can be negotiated between management and employees who are directly affected by such proposals. Either party may initiate the discussion. (NB in the event of the parties agreeing to implement a nominal 12 hour working day, the spread of hours may be expanded by an additional hour at each end.)

3.1.2 Employees may choose to be represented by their local Industrial Organisation delegate/s and shall have the right to be represented by their local Industrial Organisation official/s.

(a) Facilitative agreement provisions can only be implemented by agreement.

(b) Facilitative provisions cannot be imposed by employers onto employees or vice versa.

(c) Agreement is defined as containing consent of greater than 50% of employees directly affected.

(d) All employees directly affected must be consulted as a group regarding the proposal, before any agreement can be reached.

(e) Any agreement reached must be documented, and must incorporate a review period. A copy of the agreement may be forwarded to the relevant Industrial Organisation delegate/s and state official/s.

(f) Approval will not be withheld unreasonably.

3.1.3 This procedure is not intended to limit the rights Sucrogen or employees have in relation to hours of work and shift arrangements under this Agreement including under clause 6 of this Agreement, or existing arrangements which are otherwise in place by consent.”

[19] Clause 6.4 provides for the RDO system. Clause 6.4 provides:

“6.4 RDO system

6.4.1 The rosters for the nominal crushing season and the nominal maintenance season will make provision for RDOs, as follows:

(a) the roster during the nominal crushing season will not provide for RDOs to be taken except with the consent of management;

(b) subject to clause 5.6.4, the roster during the nominal maintenance season, will provide for employees to be allocated one paid RDO per fortnight (on average), to be paid on the basis of a 7.6 hour day, with no accrual to the RDO bank in respect of the paid RDOs;

(c) employees will, in the ordinary course, commence the nominal crushing season with a zero RDO balance.

(d) employees, whose employment terminates when they have an accrued but untaken balance in their RDO bank will be paid out of their RDO bank at ordinary time at the rate the employee is being paid at the time of the termination;

(e) employees are responsible for managing their RDO accruals;

(f) where employees go into negative, or do not have the hours banked to have a full RDO, a discussion shall take place between the employee and their supervisor with the following options being available;

(i) Use banked RDO time and then unpaid hours (which is the default option if no other agreement is reached);

(ii) Use banked RDO time, go into negative to a maximum of 10 hours and either work the hours or reconcile with the company at the end of the nominal maintenance season;

(iii) Work the day at single time with appropriate time banked to the RDO bank.

6.4.2 Through the application of the facilitative procedure and any other consent arrangements groups of employees may be able to work a 38 hour week on a year round basis and utilise RDO’s on a year round basis, or apply any other RDO arrangement which suits the circumstances of the group and which does not disadvantage them in their employment.

6.4.3 Where an employee has taken paid RDOs in advance of accrual, Sucrogen may deduct an amount equivalent to the employee's negative balance at ordinary time from any payment otherwise due to the employee, or allow the employee the opportunity to work ordinary hours to negate the negative balance. If there is a positive balance that exceeds the appropriate number of RDO’s for the roster, any excess balance will be credited to the employees banked hours, or, at the employee’s request be paid out, at ordinary time. Banked hours are to be taken as part of cascading leave. This above process will be concluded at the commencement of the nominal crushing season.”

Summary of Applicant’s submissions and evidence

[20] The Applicant submitted that the words of the Agreement are clear. The Applicant stated that clause 6.4, in conjunction with clause 3.1, “enables Employees to apply an RDO arrangement which suits the circumstances of that group and which does not disadvantage them in their employment”. 6 Clause 3.1, in the Applicant’s submissions, sets out the circumstances in which employees are “deemed to have reached agreement”.

[21] The Applicant submitted that the Respondent withheld consent to the proposal asserting the desirability for “commonality” among the various mills. The Applicant also submitted that the Respondent withheld consent as to change the RDO (by either proposition) would negatively impact on resource sharing, transfer of labour and limited resources.

[22] The Applicant submitted that the starting point in relation to the interpretation of the Agreement is the words themselves. The AMWU submitted that a proper analysis of the history and intent of the clause supports the proposition that the words provide a “clear entitlement for employees to have a real opportunity to change their RDO arrangement”. 7

[23] Clause 6.4.2 (extracted above) allows Employees, through the facilitative procedure, to apply alternate RDO arrangements which suit the circumstances of the group. It follows that the Agreement contemplates alternate RDO arrangements.

[24] In this respect, the Applicant provided evidence of Mr Tom Leamon, AMWU Delegate, who was involved in bargaining for relevant agreements since around 1990. 8 Mr Leamon gives evidence that the commonality clause (discussed above) was removed by the Respondent and agreed to by the Applicant during negotiations. This change, in Mr Leamon’s view, indicated that the Respondent no longer sought commonality between RDO arrangements between mills.

[25] In any event, the Applicant submitted that commonality of RDO arrangements has not previously been applied by the Respondent, even during the currency of the commonality clause (discussed above). The Applicant stated that the Respondent has consented to changes to RDO arrangements for other employees at other mills.

[26] The Applicant submitted that the facilitative provision, clause 3.1.2, defines “agreement”. In circumstances where “agreement” had been reached (consent of greater than 50% of employees directly affected) the employees are entitled to expect that the request would not be unreasonably withheld. That is clearly so upon the words of the Agreement.

[27] The AMWU submitted that should the facilitative provisions operate as such that the Respondent has “final say”, it would be inconsistent with clause 3.1.2(b), which prohibits the unilateral imposition of the provisions.

[28] As to the actual reasons for the Respondent withholding consent to the proposal, these were initially reduced into writing by the Respondent. These written reasons are attached to the statement of Mr Leamon. 9

[29] This exhibit is a copy of a document from Mr Greg Sparks, Delegate of the AMWU, to Mr Rick Finch, Organiser of the AMWU, which stated it was “presented” to Mr Leamon by Mr Wayne Cislowski, Engineering Manager of the Respondent. The document has typed:

“Shared resources: Pays, administration, workshops, electrical engineering, accountants, training, safety, stores and HR.

Smallest site, cost pressures are forcing us to share resources where savings can be made.

Limited resources (key skills/ supervision/ert [emergency response team] /confined spare) also restricts the ability to economically support a split RDO eg Monday and Friday.

Restricts the ability to transfer labour in and out as needed.” 10

[30] The Applicant submitted that the Respondent “deliberately” deleted the reference to commonality from this document.

[31] As regards to “shared resources”, Mr Leamon stated that Kalamia Mill doesn’t typically share resources with other mills during maintenance season. The Applicant stated that it is their view that this issue is addressed by the splitting of RDOs (between Monday and Friday) as was proposed in the alternate position. This also addressed the matter raised regarding Kalamia being the smallest site, although Mr Leamon stated that he did not understand why this issue (the size of the mill) created a difficulty.

[32] As relates to transfer of labour, Mr Leamon stated that if RDOs were split then that meant employees were attending for work on both Monday and Friday, therefore being available to transfer labour if required.

[33] Following filing of the Respondent’s reply, the AMWU filed a reply and highlighted that, after considering the Respondent’s formal response contained in the materials filed in this matter, in relation to the split of RDOs between Monday and Friday (which it is recalled was a revised position of the Applicant to alleviate concerns raised by the Respondent to the original proposition), the AMWU sought to further change its position. This change was brought about, so it was said, by a failure of the Respondent to provide fulsome reasons for their refusal prior to filing their material, which the Applicant conceded did raise “at least some operational reasons which prevent the RDO from being split”. 11 The Applicant also submitted that the RDO structure had otherwise been changed since the commencement of the dispute which necessitated the AMWU revisiting its position.

[34] This revised position will be considered further below, it is beneficial to consider the Respondent’s primary response at this time.

Summary of Respondent’s submissions and evidence

[35] The Respondent does not dispute that the Agreement provides an opportunity for employees to pursue alternate RDO arrangements which suit their circumstances. 12 And further that the Agreement provides a “real opportunity” to do so, and to seek alternate RDO arrangements.

[36] However, to the extent that the Applicant asserts that the facilitative procedures at clause 3.1 of the Agreement, do not give the Respondent the ‘final say’ as to whether an alternative RDO arrangement is implemented, the Respondent submits that this approach is inconsistent with both a plain reading of the Agreement provision, as well as with the Applicant’s own submissions.

[37] It is the Respondent’s position that the implementation of an alternative RDO structure is ultimately at the Respondent’s discretion, however, approval in relation to the implementation will not be unreasonably withheld. The Respondent submitted that it has in fact given consent to some past proposals under the facilitative provisions.

[38] The Respondent advances multiple reasons for withholding approval in relation to the proposed RDO changes, based on business efficiency, productivity, safety and cost. The Respondent submits that these reasons support the conclusion that the Respondent has not unreasonably withheld its approval in relation to the proposed RDO changes.

[39] The specific reasons advanced by the Respondent in relation to why approval was withheld, are summarised as follows:

(a) Inefficiencies and safety risks in maintenance teams

A split RDO arrangement would require maintenance teams to be split, in order to accommodate employee RDO preferences, resulting in a skills gap on both the Monday and the Friday, and potentially raising supervision issues which would impact on safety, productivity and planning.

(b) Insufficient emergency response team employees

A split RDO arrangement would require the Respondent to engage new Emergency Respondent Team (ERT) employees, or require existing employees to work overtime, in order to ensure the minimum number of ERT employees are present on both Monday and Friday. The Respondent submits that this is not an affordable scenario.

(c) Misalignment with shared service RDOs

The Respondent’s current shared services arrangement with other mills in the District sees shared service employees take their RDOs on a Friday. The Respondent submits that a split RDO arrangement would result in some employees working on days when shared services (such as payroll, purchasing, and safety/equal opportunity officers) are not available, leading to a loss in productivity.

(d) Misalignment with central workshop RDOs

The Respondent intends to develop a central workshop to service mills in the District, and that employees of the Respondent at the Wilmar will form part of the “common pool” of labour for that centralised service.

(e) Planners will be forced to work in unfamiliar areas of the mill

A Planner is an employee assigned to an area of the Mill whose role is to purchase the materials necessary for maintenance jobs. Should the RDO of the planners not align with the workforce of the area in which they work it would create organisational and efficiency issues.

(f) Transport arrangements will need to be changed

The Respondent’s current transport arrangements, whereby providers do not deliver good on a Friday when the site is on an RDO, would need to be changed at a cost to the Respondent.

(g) Potential loss in workforce flexibility

The Respondent has stated that it is concerned about possible reluctance on the part of employees to approach their shift arrangements in a flexible manner should the change be approved. The Respondent suggests that it has this concern from past experience.

(h) New roster required

A new roster system would need to be developed to facilitate a split RDO arrangement which would impose a significant administrative burden.

(i) Scheduling of training courses will need to be reviewed

The Respondent submits that under the present arrangement, training is deliberately not scheduled on Mondays during the maintenance season, to allow for one uninterrupted day of work. On implementation of a split RDO arrangement, the Respondent would lose the benefit of this.

(j) Payroll delays

The Respondent submits that there are potential for delays in payroll processing in the event of a split RDO arrangement, as the current procedure requires timecards to be completed by 9.00am Monday, in accordance with the Respondent’s banking arrangements.

(k) Disproportionate effect of absenteeism

The Respondent submits that any absenteeism which occurred on one of the two RDO days would have a disproportionate effect on work due to the already depleted staff numbers.

(l) Additional overtime will be required

The Respondent submitted that a change in the arrangements will lead to a higher reliance upon overtime work and therefore is not financially sustainable.

[40] Following the Applicant’s changed position, and a further opportunity being provided to the Respondent to respond to that changed position, the Respondent pressed those matters in relation to (c), (d), (j), (h) and (f). The Respondent also added additional issues as follows:

Purchasing and Stores

The Respondent submitted that this shared service will be affected by the proposed change. The change will lead to administrative lags and losses in productivity. The effect of this change cannot be managed in a cost effective or efficient manner because purchasing offers are responsible for a number of mills at any one time.

Safety/equal opportunity officer

The Mill employs a safety/equal opportunity officer. Through a job-sharing arrangement in this respect it will be difficult to maintain the benefits achieved if the RDO were implemented.

[41] The Respondent otherwise rejected the Applicant’s submissions and evidence and emphasised that the evidence provided of Mr Leamon has limited value in that whilst Mr Leamon’s role was recognised, he had not had experience in supervising and overseeing the operation of a work area, or an entire mill, and therefore could not be acutely aware of the effect of the RDO changes proposed and the impediments to operations it would cause..

Summary of Applicant’s submissions in reply

[42] The Applicant acknowledged its changed position but stated that the change in position was brought about by the Respondent’s limited response to the Applicant while the matter was in the preliminary dispute stages. The Applicant conceded however that those reasons put by the Respondent in this matter did make it impractical to accommodate the split of RDOs.

[43] The Applicant submitted that the changed position was in response to the justifications provided by the Respondent to refuse the split RDO proposal.

[44] The Applicant submitted that the single change in RDO’s, from Friday to Monday, means that any coverage or scheduling issues are eliminated. The flow on effect being that any issues relating to supervision would also be minimised by a necessary realignment of RDOs for supervisors etc.

[45] The Applicant conceded that the proposal have a “necessary consequence” on the shared services raised by the Respondent. However the Applicant submitted that the shared services are not regularly utilised.

[46] The Applicant’s submissions were summarised in relation to the Respondent’s reasons for withholding consent as amounting to difficulties which were contemplated by some level of operational adjustment and disruption to accommodation facilitative provisions.

Consideration

[47] The Applicant has implicitly accepted that any employee right that exists in clause 6.4.2, is to be done or is subject to the facilitative procedure. 13 The Commission agrees that the Agreement does provide for alternate RDO configurations; it follows in the Applicant’s submission that “commonality” alone is not a sufficient reason by which to withhold consent to an alternate RDO arrangement. There is evidence in this matter that a reference to commonality was removed during the negotiation of the current Agreement. This indicates an intention to approach RDO arrangements in a flexible manner.

[48] The Agreement however, makes clear that any such change is subject to the requirements of the facilitative procedure in clause 3.1.2.

[49] Clause 3.1.2 has not been clearly drafted. The clause refers to both “agreement” and “approval”.

[50] If the Commission accepts the Applicant’s submission that the term “agreement”, within clause 3.1, only requires “consent of greater than 50% of employees directly affected”, clause 3.1.2(f) still incorporates “approval” of the Respondent to any “agreement”. The Applicant implicitly accepts that the Respondent may withhold approval, but submits that the Respondent may not unreasonably do so.

[51] It is therefore not necessary for this Commission to resolve finally what the term “agreement” in clause 3.1 requires. However, upon reading clause 3.1.2 as a whole, the reasonable view on the wording is that “agreement” is agreement of both the “employees directly affected” and the Respondent. This is because clause 3.1.2(b) expressly provides that any facilitative provision “cannot be imposed by employers onto employees or vice versa”. Clause 3.1.2(b) explicitly states that employees cannot impose any facilitative provision onto the Respondent. The Applicant’s contention that allowing the clause to operate such as to allow the Respondent to have “final say” is inconsistent with clause 3.1.2(b) may be correct, but also works in the reverse. To limit the Respondent’s ability to consider any proposal, and to reasonably withhold consent, would be an impermissible imposition of the facilitative provisions upon the Respondent, by employees, and inconsistent with clause 3.1.2(b).

[52] Further, clause 3.1.3 states that the facilitative provisions procedure “is not intended to limit the rights Sucrogen or employees have in relation to hours of work and shift arrangements...including under clause 6 of this Agreement”. To hold that employees were able to unilaterally reach “agreement” in relation to a proposed RDO change would “limit the rights Sucrogen...[has] in relation to hours of work and shift arrangements...including under clause 6” of the Agreement.

[53] In addition in considering the rights of employees, it has been taken into account that the Applicant relies upon a petition of employees. Mr Cislowski gave evidence that the petition provided to him did not account for all employees who would be “directly affected” by the proposed change and who were covered by the Agreement. Mr Cislowski’s evidence is that some 98 employees were not accounted for on the petition. The petition includes 64 employees. The petition only represents 39.5% of employees, the percentage becomes less when those employees who “don’t care” or would prefer that arrangements remain at “Friday” are taken into account. Even on the Applicant’s case, “agreement” has not been reached, in that the Commission has not been presented with evidence that the consent of “greater than 50% of employees directly affected” has been achieved. The evidence of Mr Cislowski on this point was not challenged. The Respondent also made specific submissions in this regard which have not been challenged by the Applicant. 14 The application would alternatively be dismissed on this ground.

[54] For the purposes of this dispute, in considering the terms of the facilitative provisions, in addition to taking into account the above petition material, it is also sufficient to decide if the Respondent has “unreasonably” withheld approval of the proposal regarding RDO’s. On the operational material presented it cannot be reasonably concluded that the Respondent has unreasonably withheld consent. The Applicant conceded, following the filing of the Respondent’s material in reply in this matter that operational grounds existed prohibiting the split of RDOs between the Friday and Monday.

[55] While I accept the Applicant’s submissions that some amount of disruption is contemplated by the facilitative provision the reasons presented by the Respondent for withholding consent are reasonable having regard to the business efficiency, productivity and cost which is within the Respondent’s business planning and knowledge. In particular the shared services arrangements of the Respondent’s enterprise are grounds for such consent being withheld. The Applicant’s witnesses accepted that these services are used, however rarely, but that concession indicates that the proposed change will amount to a cost and efficiency imposition for the Respondent. It is not for this Commission, or the Applicant, to interpose itself into the shoes of the Respondent and make a finding as to what cost or efficiency imposition is “reasonable”. The test is as provided for by the facilitative provision: that the Respondent must not unreasonably withhold consent. The Respondent’s reasoning in relation to this matter provides a number of matters considered by the Respondent in assessing the proposal. These reasons do not form an unreasonable basis for withholding consent to the proposal.

[56] For the aforementioned reasons the application is dismissed.

[57] I Order accordingly.

COMMISSIONER

 1   Outline of Applicant’s submissions at paragraph 4; Outline of Respondent’s submissions at paragraph 9.

 2   Statement of Tom Leamon at paragraph 20 to 23.

 3   Statement of Tom Leamon at TL3.

 4   Statement of Wayne Cislowski at paragraph 8.

 5   Sucrogen Australia Pty Ltd [2012] FWAA 10815 at [7].

 6   Outline of Applicant’s submissions at paragraph 7.

 7   Outline of Applicant’s submissions at paragraph 18.

 8   Statement of Tom Leamon at paragraph 6.

 9   Statement of Tom Leamon at TL4.

 10   Ibid..

 11   Email from Ms L Butler, dated Friday, 8 November 2013.

 12   Outline of Respondent’s Submissions at paragraph 5(d).

 13   Outline of Applicant’s submissions at paragraph 20.

 14   Outline of Respondent’s Submissions at paragraph 13-17.

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