BP Refinery (Kwinana) Pty Ltd v Australian Workers' Union, The
[2020] FWCFB 2693
•22 MAY 2020
| [2020] FWCFB 2693 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.266—Industrial action related workplace determination
BP Refinery (Kwinana) Pty Ltd
v
Australian Workers’ Union, The
(B2019/4)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 MAY 2020 |
Industrial action related workplace determination.
Introduction and statutory framework
[1] BP Refinery (Kwinana) Pty Ltd (BP) is a private corporation that operates in Western Australia. Its primary business is to refine crude oil, manufacturing various refined fuels such as motor gasoline, diesel fuels, and aviation fuels. It is the largest oil refinery in Australia.
[2] For relevant purposes, BP is currently covered by the BP Refinery (Kwinana) Pty Limited & AWU Operations & Laboratory Employees Agreement 2014 (the 2014 Agreement). The nominal expiry date of the 2014 Agreement was 30 November 2017. The parties to the 2014 Agreement are BP, all operations and laboratory employees (collectively, the Employees) 1, and the Australian Workers’ Union (AWU).
[3] In June 2017, the parties began negotiating for a proposed replacement of the 2014 Agreement. This process involved many bargaining meetings, and in May 2018, BP and the AWU participated in an interest based bargaining process with the Fair Work Commission (Commission). In October 2018, no agreement had been reached and the AWU applied to the Commission for a protected action ballot order. The protected action ballot order was granted 2 and employees of BP took protected industrial action in December 2018. On 4 January 2019, the Commission made an order pursuant to s 424(1) of the Fair Work Act 2009 (Cth) (the Act) (Termination Order) to terminate the protected industrial action.3
[4] The Termination Order was a “termination of industrial action instrument” as defined in s 266(2)(a) of the Act. In relation to such instruments, s 266(1) of the Act provides for the arbitration of outstanding bargaining issues through the making of a “workplace determination” as follows:
“266 Industrial action related workplace determination
(1) If:
(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and
(b) the post-industrial action negotiating period ends; and
(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;
the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.”
[5] Sections 267 and 268 establish requirements concerning the content of an industrial action relation workplace determination as follows:
“267 Terms etc. of an industrial action related workplace determination
Basic rule
(1) An industrial action related workplace determination must comply with subsection (4) and include:
(a) the terms set out in subsections (2) and (3); and
(b) the core terms set out in section 272; and
(c) the mandatory terms set out in section 273.
Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275.
Agreed terms
(2) The determination must include the agreed terms (see subsection 274(2)) for the determination.
Terms dealing with the matters at issue
(3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-industrial action negotiating period.
Coverage
(4) The determination must be expressed to cover:
(a) each employer that would have been covered by the proposed enterprise agreement concerned; and
(b) the employees who would have been covered by that agreement; and
(c) each employee organisation (if any) that was a bargaining representative of those employees.
268 No other terms
An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).”
[6] Section 272 of the Act provides for the core terms that must be included in a workplace determination. It provides a workplace determination:
• must include a nominal expiry date which must not be more than 4 years after the its operative date;
• must not include terms that would not be about permitted matters or would be unlawful if the determination were an enterprise agreement or designated outworker terms;
• must include terms such that the determination would pass the better off overall test under s 193 of the Act if the determination were an enterprise agreement; and
• must not include a term that would, if the determination were an enterprise agreement, mean that the FWC could not approve the agreement because it contravened s 55 of the Act or because of the requirements in Subdivision E of Division 4 of Part 2-4 of the Act.
[7] Section 273 of the Act provides for the mandatory terms of a workplace determination. It provides that a workplace determination:
• must include a term that provides a procedure for settling disputes about any matters arising under the determination and in relation to the National Employment Standards (NES); 4
• must include the model flexibility term unless the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements); and
• must include the model consultation term unless the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).
[8] Section 274(2) provides that an “agreed term” for the purposes of s 267(2) is “a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-industrial action negotiating period, agreed should be included in the agreement”.
[9] Section 275 sets out those factors which the Commission must take into account in determining the terms of a workplace determination as follows:
“275 Factors the FWC must take into account in deciding terms of a workplace determination
The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following:
(a) the merits of the case;
(b) for a low-paid workplace determination--the interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive;
(c) for a workplace determination other than a low-paid workplace determination--the interests of the employers and employees who will be covered by the determination;
(d) the public interest;
(e) how productivity might be improved in the enterprise or enterprises concerned;
(f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;
(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;
(h) incentives to continue to bargain at a later time.”
[10] Section 276(1) provides that “A workplace determination operates from the day on which it is made”.
[11] Following the end of the post-industrial action negotiating period on 16 February 2019, BP and the AWU, being the bargaining representatives for the proposed agreement the subject of the Termination Order, had not settled all of the matters that were at issue during the bargaining for the agreement. Accordingly, the Commission is required to make a workplace determination which resolves the outstanding issues in accordance with the provisions of the Act, set out above. 5
[12] Pursuant to this task, this Full Bench heard evidence adduced by the parties and received submissions on 5 – 13 August 2019 and closing submissions on 1 November 2019.
Factual Background
BP and its workforce
[13] As earlier stated, BP refines crude oil to produce various refined fuels. In conducting this business, BP employs operators to operate the Kwinana Refinery (Operators) and laboratory employees to test intermediate and final fuels produced at the Kwinana Refinery (Laboratory Employees).
[14] At the time this Full Bench heard evidence in the matter, BP employed 138 Operators and 19 Laboratory Employees. 6 Most Operators work on a rotating shift roster, comprising of both day shifts and night shifts. Most Laboratory Employees work on a rotating shift roster comprising of both day shifts and afternoon shifts, although some Laboratory Employees are day workers only.
[15] On a planned basis the Kwinana Refinery is required to be shut down completely or partially to undertake maintenance and repair work. This complete or partial shutdown is known as a “Turnaround Event” or a “TAR Event” (TAR). Some processing units at the Kwinana Refinery are required to be shut down on a planned basis every six months to two years to undertake maintenance and repair work on the units or to recharge, top up or replace the catalysts. Further, the Kwinana Refinery or some processing units at the Kwinana Refinery are required to be shut down on an unplanned basis, usually to address an unexpected mechanical breakdown or an emergency that creates safety or environmental risks (a “swoop”).
The 2014 Agreement
[16] The 2014 Agreement came into effect on 13 November 2014 with a nominal expiry date of 30 November 2017.
[17] The 2014 Agreement provided an increase to the salaried wage rates for both Operators and Laboratory Employees. Whilst set out in different provisions of the 2014 Agreement 7, the wage increases for both Operators and Laboratory Employees were as follows:
• 4.2% from 28 March 2014;
• 3.8% from 27 March 2015;
• 3.8% from 25 March 2016; and
• 3.8% from 24 March 2017.
[18] There remain a large number of issues for this Full Bench to determine and give effect to in the Workplace Determination. For this reason, further detail of the 2014 Agreement will not be provided here, but rather, where it is necessary to our conclusions of the remaining issues to be determined below, we provide the relevant details of specific clauses within the 2014 Agreement.
Wage increases and growth since the expiry of the 2014 Agreement
[19] For employees of BP covered by the 2014, the last wage increase was 3.8% and it took effect on 24 March 2017. The 2014 Agreement reached its nominal expiry date on 30 November 2017 and there has been no further wage increase for employees covered by it since its expiry.
Bargaining history since the 2014 Agreement
[20] On 15 June 2017, BP initiated bargaining for a replacement for the 2014 Agreement. From 23 June 2017, BP has participated in thirty-five bargaining meetings to negotiate for a replacement for the 2014 Agreement. 8
Site inspection
[21] The Full Bench conducted an inspection of the site on 12 August 2019. The Full Bench was grateful for the opportunity to better appreciate the scale of the operations, the layout of the site and the working environment of Operators and Laboratory Employees.
Issues to be determined
[22] During the course of the matter before us, the parties have each filed a number of draft workplace determinations, setting out their respective positions in relation to the wide range of issues which were the subject of dispute during the bargaining period. Initially, the parties provided the Commission with a joint document identifying the agreed terms, and two separate documents (one prepared by BP and another prepared by the AWU) identifying the list of issues to be determined by the Commission.
[23] There were a large number of terms agreed between the parties, and this was reflected in each of their respective draft determinations. Section 267(2) of the Act requires those terms agreed between the parties as at the end of the negotiation period, in this matter being 16 February 2019, must be included in the Workplace Determination. Such terms will be included in the final Workplace Determination which we will make.
[24] Identification of the non-agreed terms is critical in the exercise of the Commission’s power under s 267 of the Act in respect of making a workplace determination.
[25] The following matters, described broadly by category, remain not agreed between the parties and must therefore be the subject of arbitration by the Commission:
• Definitions
• Nominal Expiry Date
• Conditions of Employment
• Components of annuals salary and fixed total salary
• Regularity of salary payments
• Salary increases
• Company bonus scheme
• Superannuation
• Redundancy pay entitlements
• Leave entitlements
• Consultative committees
• Starting and finishing times
• Shift coverage
• Availability Roster
• Rosters
• Make up hours
• Working arrangements
• Additional hours
• Nine day fortnight
• Time off in lieu
• Contractors
• Process testing and maintenance
• Classification arrangements
• Manning issues
• Day Team
Evidence
[26] Evidence was given by the following persons:
For BP:
• David Plant, Optimisation Manager, BP
• Paul Mace, Operations Superintendent, BP
• Marina Campbell, Maintenance and Engineering Manager, BP
• Robert Bimrose, Employee and Industrial Relations Director, BP
• Paul Alford, Business Improvement Lead, BP
• Gregory Power, Principal Consultant, Drayton’s Workplace Consulting
For the AWU:
• Robert Boyham, Operator Training Simulator Trainer, BP
• Clint Brenchley, Deputy Shift Team Leader, BP
• Jeremy Butson, RCU Control Technician (CT2A), BP
• Greg Cary, Control Technician, BP
• Chris Craig, Deputy Shift Team Leader (DTSL), BP
• Jarrad Cullen, Control Technician, BP
• Scott Dean, Quality Measurement Technician, BP
• Martin Donnelly, Control Technician, BP
• Tegan Duffy, Operations Technician, BP
• Jeremey Durack, Control Technician, BP
• Mark Ellis, Control Technician (Mogas CT3A), BP
• Haile Gebrezgabher, Quality Measurement Technician, BP
• Neil Glanz, Quality Measurement Technician, BP
• Blair Leafe, Process Operator, BP
• Ryszard Majewski, Control Technician, BP
• Tammy McNabb, Quality Measurement Technician, BP
• Brian Meharry, Day Technician North (OT4), BP
• Brian Morris, formerly employed at BP
• Felicity Mortley, Shift Coordinator (LT6), BP
• Clayton Phillips, Control Technician, BP
• Jenna Shemeld, Operations Control Technician, BP
• Rene Sladky, Control Technician, BP
• Dean Strauch, Control Technician, BP
• Kylie Taylor, Quality Measurement Technician, BP
• Katie Wagner, Control Technician, BP
• Clive Hacking, Control Technician, BP
• Denise Solly, Quality Measurement Technician, BP
• Troy Irwin, Process Operator and employee representative on the AWU Negotiating Committee for the AWU Operations/Laboratory Agreement negotiations, BP
• Rod Russell, Operations Control Technician, BP
Evidence
BP Witnesses
• David Plant
[27] Mr David John Plant filed two witness statements and gave oral evidence on behalf of BP. At the time of filing his statements, Mr Plant was employed by BP as an Optimisation Manager. Among other things, Mr Plant deposed that:
• In addition to expected poor future gasoline margins, the margins and operating profit of the Refinery are expected to be impacted by other developments. This includes new refineries and refinery expansions in the Asia Pacific and the Middle-East, Puma Energy Australia (Holdings) P/L building an import terminal in Kwinana, just south of the Refinery and recent legislative changes that require investment in the Refinery and will lead to lower margins for the Refinery. 9
• The Puma Terminal poses a direct threat to the future competitiveness of BP through the erosion of BP’s location advantage. 10
• Likely compliance requirements to new Commonwealth legislation may require BP to construct and commission an additional process unit and supporting infrastructure. 11
• In relation to the cost of transporting refined products, BP has achieved a lower profit margin for its refined product transported to New South Wales and other Australian ports due to the need to compete with refined product imported using the Long Rage ships from the Asia Pacific and European refineries. 12
• Unless BP improves its competitiveness, BP is less likely to have its capital expenditure approved by the BP Group. 13
• The range of new refineries expected to commence operating in the Asia Pacific region and the Middle East which are expected to supply the Asia Pacific market will increase the supply of diesel and jet fuel in those markets and reduce the margins experienced at BP for diesel and jet fuel. 14
Paul Mace
[28] Mr Paul Mace filed two witness statements and gave oral evidence on behalf of BP. At the time of filing his statements, Mr Mace was employed by BP as an Operations Superintendent – Development. Amongst other things, Mr Mace deposed that:
• BP does not get the benefit of the additional hours for overtime paid for in the annualised salary. This is because Operators take the view that the actual hours of work are 35 hours per week on average only and that anything above 35 hours per week is worked on a voluntary basis. Further, Operators take the view that shift coverage works on a voluntary basis and that BP cannot change rosters to require them to work additional hours to meet operational requirements, including during a TAR event. 15
• A Shift Manager often needs to contact many non-rostered Operators on the availability list before cover is obtained. 16
• Shift coverage is not evenly distributed amongst the Operators. 17
• Arranging shift coverage can be a time-consuming exercise and at times several hours are required to organise shift coverage during a shift. 18
• BP would like to have in place a system that ensures shift coverage is more evenly shared amongst Operators and gives Shift Managers confidence that shift coverage will be provided in the event of an unplanned absence that cannot be covered by the spare capacity on the shift. 19
• In relation to the removal of the OT1 classification, BP is of the view that an Operator who has one area of expertise in relation to part of a manned position, but who is not trained or certified to operate one manned position is still a trainee and so should be classified as a trainee and should not be classified in a separate classification. 20
• In relation to the removal of OT3 classification, an Operator who is trained and certified to hold one manned position but is training to hold two manned positions should still be classified as an OT2. BP holds the view that an OT3 has limited additional skills whilst training for the second manned position and cannot operate the second manned position. 21
• BP is of the view that an Operator who commences training to become a Control Technician but has not completed the initial training should remain as an OT4 or an OT5 and should only be classified as a CT1 or a CT1A upon completing the initial training. 22
• BP conducts risk reviews of processing units and processes at the refinery; risk reviews take varying amounts of time. BP wishes to have the right, if volunteers are not obtained, to direct an appropriately skilled Operator to participate in a longer risk review and to change from a shift roster to a day roster. 23
• Regarding the proposal in the AWU’s Proposed Workplace Determination (AWUWD) for part-time employees to receive double time payment for hours worked in excess of their ordinary hours, there is no reason why a part-time Employee should be compensated differently to a full-time Employee for hours worked outside of their ordinary hours. 24
• Regarding clause 8.6 of the AWUWD, BP seeks greater flexibility in rostering training for purposes other than ERG. 25
• There is no greater risk associated with draining of the ISOM unit at night than conducting maintenance tasks on other units. 26
• In relation to handover times, a typical handover for a control technician takes 10 minutes and a handover for a STL/DSTL is typically 15 minutes. 27
• Last minute changes associated with a TAR Event mean that it may not be possible to provide 72 hours’ notice of cancellation of a night shift, it may only be practical to provide 24 hours’ notice of a cancellation of a night shift. 28
• The assertion that an OT3 is capable of ‘running solo’ the CDU2 processing unit on the first day after they have attained their OT3 certification is denied. 29
• The assertion that an OT1 can ‘run solo’ a manned position on the first day they have qualified as an OT1 is denied. 30
• Operators who are classified as OT1 and OT3 are still undertaking training in relation to one or two manned positions and are not yet certified to operate one or two manned positions. 31
• The assertion that for an Operator to perform a TAR Unit Lead involves a significant change to their duties is denied. 32
• The assertion that the move to annualised salaries removed the need for employees to work overtime is denied. 33
• The assertion that the 150 Additional Hours are uncompensated is denied, as these hours reflect the OT Payment that have been included as a component of the annualised salary since annualised salaries were introduced. 34
Marina Campbell
[29] Ms Marina Campbell filed two witness statements and gave oral evidence on behalf of BP. At the time of filing her first statement, Ms Campbell was employed by BP in the position of Health, Safety, Security, Environment and Quality Manager. At the time of filing her second statement, Ms Campbell was employed by BP as a Maintenance and Engineering Manager. Amongst other things, Ms Campbell deposed that:
• Clause 7 of BP’s Proposed Workplace Determination (BPWD) will give BP the ability to access the full scope of Employees’ skill, competence and training. Operators have taken the view that they can only ‘volunteer’ to perform certain tasks. The proposed clause allows for better operational outcomes in relation to safety, quality and efficiency. The clause includes Employees undertaking from time to time duties that are lower or higher than in the Employees’ specific classification level or performing tasks incidental to the Employees’ classification level. 35
• In regard to Shift Roster 2 proposed in the BPWD, this roster benefits BP in relation to the availability of day resources to assist with maintenance on the weekends through the Refinery Technicians performing the day work on weekends. In respect of Refinery Technicians on this roster, they work fewer night shifts which contributes to lessening the fatigue impact from working nights. 36
• In relation to clause 8.6(d) of the BPWD regarding the start and finishing times for Operators, Ms Campbell deposed that, notwithstanding that the start and finishing times are currently 7.00am and 7.00pm, the majority of Operators commence work and finish work earlier than those times. Gate entry electronic data held by BP recorded the entry times and departure times at the Refinery of shift Operators for the period 1 January 2018 to 20 February 2019. A report from this period indicates that on average 86% of Operators entered the Refinery to commence day shift by 6.05am and that 93% of night shift Operators arrived at the Refinery by 6:10pm. Changing the start and finishing times will result in efficiency and productivity improvements, including the ability to stagger the start times for maintenance crews at the start of the day. The peak work load for issuing permits could be distributed over a longer period, reducing delays. 37 A start time for 6.00am for day shift Operators would therefore enable permits to be issued to maintenance crews from 7.00am which in turn would increase productivity of maintenance workers.38
• Data collected by BP for delays to the start of maintenance work showed that the average time from the start of the maintenance shift to the issuing of a permit was 49 minutes, and maintenance personal may have no alternative work to perform until the permit is issued. 39
• Clause 8.6(f)(i) of the BPWD removes the limitations imposed on BP under the 2014 Agreement with respect to rostering training for Operators and the limitations on the use that can be made of make-up hours. 40 Clause 8.6(f)(ii) also provides that the make-up hours for Laboratory Employees will be rostered for training and other business needs.41
• BP justifies the need to require Employees to work a Day Roster based on a number of factors including safety, the enablement of business efficiency, access to Operations knowledge and input into key business decisions and process costs. 42
• In or around 2015 a decision was made by BP globally to abolish 9-day fortnight arrangements across all BP operations. Clause 8.7(b) of the AWU Workplace Determination provides Laboratory Employees with the right to elect to work a 9-day fortnight; BP wishes to have a uniform application of policy to all employees without making exception for Laboratory Employees. 43
• In relation to clause 8.8 of the BPWD, BP wishes to provide clarity on how additional hours are allocated and used. 44
• In relation to clauses 9 and 26 of the BPWD regarding shift coverage, these clauses are inserted due to the imperative to safely operate the Refinery processes at all times. 45 Shift Managers have reported that the process of attempting to fill an unforeseen absence of an employee has left them feeling physically ill. This is due to the stress of having to confront the decision of shutting down several process units.46 The BPWD seeks to reduce the risk of a situation where units need to be shut down because of an inability to cover all required positions.47 The BPWD seeks to reduce this risk through Operators confirming their availability to be called in to provide coverage via an ‘availability roster’ one month in advance.48
• Shift coverage provisions in the AWUWD fail to address the risks relating to being unable to cover all required positions, in part due to the prescriptiveness and time-consuming nature of the proposed clauses. 49
• The BPWD provisions regarding TAR arrangements seek to ensure flexibility in working arrangements to ensure a TAR event is carried out in a cost effective, efficient and appropriately manned manner. 50 Having the ability to require Operators during the Execution Phase, and a short period either side of the Execution Phase, to work a different shift roster pattern contributes to a safer Execution Phase as the workload is more equally spread.51 Having the certainty about the availability of the number of Operators to perform their respective roles during a TAR Event by having the ability to appoint and require the performance of tasks contributes to better safety.52
• Under the current arrangements emanating from the 2014 Agreement, Operators can withdraw their volunteer status during the Preparation Phase for the TAR Event. The timing of such a withdrawal poses risks if late in the process another Operator has to catch up on the preparations done thus far. 53
• For the 2017 TAR, in order to get volunteers, and after failed attempts, BP only achieved sufficient availability of Laboratory Employees to do work by offering additional TOIL. This is despite the fact that the annualised wages of Laboratory Employees include compensation for working additional hours. 54
• If BP were able to direct Operators to work the TAR roster as required, the potential for employee fatigue and associated risks would be reduced as the workload would be distributed amongst Operators more evenly. 55
• BP’s costs for 430 employees are approximately 42% of its total operational costs and the 162 Operators and Laboratory Employees account for 40% of those labour costs and represent the largest labour cost of operating the Refinery. 56
• The ability for BP to direct employees to work on a public holiday, which BP proposes in clause 15.10 of the BPWD, is due to the nature of Refinery being a major hazard facility. 57
• BP wants to have the ability to consider the means of achieving greater consistency and efficiency by re-designing the Permit to Work system so that dedicated Operators act as dedicated permit control officers responsible for each of the areas of the Refinery. 58
• BP seeks to have the flexibility to implement changes to manning levels as technology allow and does not wish to be restrained from doing so. 59
• She is concerned that Employees will continue to reference clause 32 of the AWUWD as setting the limit on the duties and responsibilities of Operators and that any request or direction by BP to perform duties not listed will be resisted. 60
• Clause 30(b) of the AWUWD regarding reductions in staffing numbers is restrictive and the prospect of obtaining agreement for changing staffing numbers is ‘virtually nil’. 61
• The assertion that the three shift rosters proposed by BP will increase the fatigue experienced by Operators is denied. 62
• Tasks formerly done by Operators on shift are now routinely done by staff working days. 63
• In respect of fatigue concerns for Laboratory Technicians working past midnight, data demonstrates that out of 409 individual shifts over a six-month period in 2019, there were 13 occasions when an individual worked past midnight. 64
• Robert Bimrose
[30] Mr Robert Bimrose filed two witness statements and gave oral evidence 65 in support of the BPWD. At the time of filing, Mr Plant was employed by BP as Employee & Industrial Relations Director. Among other things, Mr Bimrose deposed that:
• The BP Group has approximately 1800 employees in Australia who are paid an annualised salary (including employees of BP). With the exception of approximately 260 employees, the remaining 1500 (approximate) employees are paid on a monthly basis, half in advance and half in arrears. Of the 260 employees, 200 employees working at the Kwinana Refinery are paid on a fortnightly basis and are covered by the 2014 Agreement and the BP (Kwinana Refinery) Maintech 2015 – Maintenance Technicians Agreement. The remaining 60 employees work at lubricant processing plants are paid fortnightly and are covered by another single enterprise agreement. 66
• BP Group wants to harmonise its payroll practices across the entities where possible, including having a monthly payment cycle for employees who are paid annualised salaries. The BP Group wants to reduce its operating costs associated with payroll activities. A monthly payment cycle will reduce the payroll transactions from 26 to 12 times per annum, in turn reducing the resources required for payroll validation checks and the risk of mistakes. 67
• Clause 11(c) of the AWUWD, which provides for Employees to be paid fortnightly, would be inconsistent with the payroll practices of the BP Group. 68
• Clause 11(f) of the AWUWD, regarding effecting payment by cheque in the event of a failure in the banking system, is no longer necessary as such a clause could result in further delays to the payment of salaries. Continuity plans currently in existence provide for payments to be processed within a matter of hours where a failure in the banking system occurs. 69
• BP is concerned that not having a clause in the Workplace Determination requiring employees to perform duties within their skill, competence and training when directed may give rise to disputes concerning the requirement of the employees to follow the lawful and reasonable directions of BP. 70
• During a bargaining meeting on 6 September 2018, an AWU delegate stated that participation in TAR Events was voluntary. 71
• The absence of the Code of Conduct clauses 7(b) and 7(c)(ix) from the Workplace Determination may give rise to disputes in relation to compliance with the Code of Conduct. 72
• Clause 8.1 of the AWUWD would limit overtime hours to ‘production requirements’, BP should not be precluded from directing employees from working overtime during turnarounds, swoops and other projects. 73
• Changes in BP’s policies no longer permitting compressed working weeks (including a 9 day fortnight) were due to concerns relating to inconsistent work hours impacting productivity. 74
• The BPWD does not include a provision which permits employees to elect to work a 9 day fortnight. BP wants to ensure that its employees are treated in a consistent manner and that its policies are consistent with policies applied by related entities within the BP Group. 75
• Clauses 29 and 31 of the BPWD clarify that there are a number of components that make up the Total Fixed Salary paid to Employees, and this is to avoid future disputes regarding the components of the Total Fixed Salary. 76
• BP wants to incorporate the leave loading into the Total Fixed Salary for Laboratory Employees who are day workers to ensure consistency across the Employees covered by the agreement. 77
• The clauses concerning retrenchment in the AWUWD are excessive and may create operational difficulties for BP. 78
• BP no longer wishes to continue with the bonus pay arrangements provided under the 2014 Agreement because they do not operate as a discretionary reward, they have no regard to individual performance, they do not provide BP with a capacity to review or amend the plan and BP wishes to have a single consistent approach to determining discretionary bonuses. 79
• BP opposes clause 11.3(d) proposed in the AWUWD regarding superannuation contributions as it adopts a practice that is more generous that BP’s legal obligations. 80
• BP’s provision of an additional day of public holiday for Day Workers in lieu of Easter Tuesday known as ‘My Day’ would be better addressed in company policy rather than in a workplace determination. 81
• Regarding the functions of consultative committees as proposed in the AWUWD, the use of contract labour is a matter for the sole decision of BP and should not be subject to the review or recommendation of the committee. 82
• During bargaining, BP stated it was concerned at the wage growth of Operators and Laboratory Employees from 2007 to 2016, with the wage growth being 71 per cent in the 10 year period. 83
• The Annual Cash Bonus (ACB) Plan, which includes a measure on individual performance, applies to other employees of the BP Group. Mr Bimrose deposed that he is not aware of there being any negative impact on safety and workplace culture by reason of the application of the ACB Plan to other employees in the BP Group. Further, Mr Bimrose deposed that it has not been suggested to him that the focus on individual performance in the ACB Plan has a negative impact, or has a potential negative impact, on safety and workplace culture. 84
• Contrary to the suggestion in Mr Irwin’s Statement that Operators at the Refinery were not the highest paid in Operators in Australia, Mr Bimrose’s understanding is that the Operators at BP are the highest paid in Australia in respect of ordinary hours of work. 85
• Contrary to the assertion in Mr Irwin’s statement that BP only entitles Mr Irwin to take 6.6 shifts off per year for personal/carer’s leave, Mr Bimrose denies this and deposed that BP permits Mr Irwin to take 10 days off for personal carer’s leave per year. 86
• In 2018, the margin generated by BP for supply of gasoline decreased significantly, and BP realised that it could not enter a replacement agreement that rolled over the 2014 Agreement. 87
• In reference to the Solly Statement, he is not aware of a formal dispute over the 90% pension factor applying to some employees. 88
• Before BP would direct an Operator to work as a day worker, it would consult with them to learn of their personal circumstances. 89
• Regarding the suggestion that the 2014 Agreement is silent on the ability of BP to direct a dayworker to take accrued annual leave, Mr Bimrose deposed that clauses 51.3, 51.4, and 72.6 concern this issue. 90
Paul Alford
[31] Mr Paul Alford filed two witness statements. At the time of filing, Mr Alford was employed by BP in the position of Business Improvement Lead. Among other things, Mr Alford deposed that:
• The operation of many provisions in the 2014 Agreement prevent BP from having the requisite level of certainty, flexibility and consistency required to carry out a cost-effective, efficient and appropriately manned TAR Event. 91
• The 2014 Agreement is interpreted by Operators in a way that imposes a number of constraints on the operations of the Refinery especially for TAR Events. Operators take the view that they may voluntarily enter project teams but are not obliged to work in project teams, that they are not required to work more than 35 hours per week (and only in accordance with the current agreed rosters and a TAR roster) and that they are only required to perform the agreed duties, and work on a TAR Event is not part of the agreed duties. 92
• To carry out a cost effective TAR event, BP wants to be a position where it can, amongst other things, arrange for TAR Unit Leads to be rostered on day shifts for the duration of the Preparation Phase, select and appoint Operators to perform other defined TAR roles and work with the TAR Unit Leads at times required by BP during the Preparation Phase. 93
• The combined operation of not being able to change rosters, not being able to require Operators to work overtime and rigid job descriptions prevents BP from appointing TAR Unit Leads. Instead, BP is reliant on Operators volunteering to be a TAR Unit Lead and to change their roster accordingly. 94
• Relying on volunteers to perform TAR Unit Leads results in BP not having the ability to select the most suitable Operator to perform the required role. 95 This is also an issue with Operators performing other defined TAR roles.96 The fewer the Operators who volunteer for other defined TAR roles, the greater the duration of the TAR Execution period.97 Mr Alford estimates that the daily cost during a shutdown was around $2.5 to $3 million during the 2017 TAR.98
• Under the current arrangements, BP is unable to ensure that the workload during the TAR Execution Period is distributed across the Operators in a more equitable manner, as volunteers working a TAR role work extended hours. 99
• In the lead up to the TAR Execution Period for the 2017 TAR, a number of Operators who had volunteered to work the TAR Roster subsequently withdrew; this was disruptive to the Preparation Phase and placed a significant burden on management in trying to accommodate the changes in manning. 100
• The limited number of suitable volunteers during the 2017 TAR was a source of frustration from the TAR Unit Leads and they felt like safety was being compromised as a result. 101
• Having certainty of suitable Operator availability would shorten a TAR Event. 102
• If BP could execute TAR Events efficiently, the total duration of a major TAR Event could be reduced by 3 to 5 days, resulting in a total cost saving of $7.5 million to $15 million per major TAR Event. 103
• Clause 10 of the BPWD contains an appropriate regime for BP to conduct TAR Events efficiently, safely and flexibility by providing benefits and protection for Employees. 104
• Clause 10.2 in the AWUWD regarding seeking and obtaining the recommendations of the Consultative Committee in relation to the selection of Employees to fill TAR roles is likely to create a delay in TAR events. Additionally, the need for the roster to be worked during the TAR Execution Phase to be agreed in writing may become subject to the dispute resolution procedure if there is a lack of agreement. 105
• Maintenance tasks performed by BP maintenance employees or maintenance contractors must be authorised by an Operator; this is provided through a ‘Permit to Work’. 106 After a permit is issued, they can commence their work. BP seeks to avoid maintenance employees and maintenance contractors from being delayed in the commencement of their work.107 A study revealed that the average lag time between a maintenance employee starting on site and being authorised under a permit to work to commence work was 1 hour and 4 minutes and the cost of the lag was estimated at $1.0 million per year.108 BP wishes to avoid the bottleneck associated with the issue of Permits to Work, and accordingly wishes for Operators to commence their day shifts at 6am and to complete various tasks before maintenance employees and contractors start at site at 7am.109
• BP does not wish to be restricted from implementing digital automation opportunities, which deliver efficiencies. BP does not wish to be restricted on the basis that the tasks required of Operators are not set out in role descriptions for the various types of Operators. 110
• He has never experienced an issue, including a banking ‘failure’, which has affected the payment of his salary and he has not heard of other staff experiencing such an issue in the 13 years he has worked at the Refinery. 111
• In relation to Mr Brenchley’s Statement:
• At no time did Mr Brenchley inform Mr Alford that he did not have the training or briefing to be the RCU Unit Lead or to be involved in the preparations for the 2017 TAR. 112
• At no time was Mr Alford informed by Mr Brenchley that he regarded the performance of a TAR Unit Lead as involving a major change in the role of an Operator or that he did not feel comfortable in performing the role of RCU TAR Unit Lead. 113
• Mr Alford agrees that during the TAR Execution Period a TAR Unit Lead at times has more responsibility than an Operator working on a unit during normal operations. In Mr Alford’s view, this greater responsibility during a TAR Event supports BP having the ability to select and appoint TAR Unit Leads and not relying simply on volunteers to fill the role of TAR Unit Leads. 114
• In relation to Mr Butson’s Statement:
• At no time did Mr Butson inform Mr Alford that he did not have training or the skills and experience to perform the role of TAR Unit Lead for the 2017 TAR. 115
• In relation to Mr Irwin’s Statement:
• Mr Alford denies that BP is asking TAR Unit Leads to work a six day on, one day off 12 hour shift roster throughout the entire TAR Execution Period, BP is only seeking that TAR Unit Leads work on a six day on, one day off 12 hour shift roster during the Shut-down Phase and Start-up Phase of the TAR Execution Period and the initial week of the Mechanical Phase of the TAR Execution Period. 116
• Mr Alford denies that a six day on, one day off 12 hour shift is unsafe. 117
• Mr Alford denies that none of the Operators filling the role of TAR Unit Leads in the 2017 TAR received training. 118
• In relation to Ms Solly’s Statement:
• Mr Alford denies that the provision of 72 hours’ notice of cancellation is practical. During the Start-up and Shut-down Phases of the TAR Execution Period, BP often experiences delays and issues. 119
• BP opposed the AWU proposal that BP publish TAR rosters at the time an expression of interest is undertaken. If TAR rosters are included in the Workplace Determination, it will not be necessary to publish the TAR rosters as part of the EOI process. Mr Alford is concerned that a requirement to publish a TAR roster may lead to disputes if BP takes the view that it is necessary to change to another TAR roster subsequent to the EOI process. 120
Gregory Power
[32] Mr Gregory Power filed a single witness statement and gave oral evidence. At the time of filing, Mr Power was employed as the Principal Consultant of Drayton’s Workplace Consulting. Among other things, Mr Power deposed that BP pays the Employees (operators and laboratory employees) the highest relative annualised salary for employees working in oil refining in Australia. 121
AWU Witnesses
Robert Boyham
[33] Mr Robert Boyham filed a single witness statement in support of the AWUWD. At the time of filing, Mr Boyham was employed by BP as an Operator Training Simulator Trainer. Amongst other things, Mr Boyham deposed that:
• An OT3 can ‘run solo’ in a second manned position providing that he/she can swap with a qualified person during an emergency scenario. 122
• An OT1 classification should be retained because the likelihood of training a spare operator would likely only cover 50% of training time. An OT1 (and an OT3 and CT1) can be utilised to cover a manned position that they are not yet assessed as fully competent on provision that a competent person is available to take over in an emergency. This is referred to as ‘going solo’ and although not detailed in the structure, it has become practice. 123
• The CT1 is a 2-year training position necessary to lead to competency as a CT2. The CT1 will also reach a phase of their training where although they have not yet achieved the level considered to be assessed, they can ‘run solo’ in the role as long as a competent person is in a position available to swap in an emergency. The CT1 will perform all of the duties of a CT2 during this period, which may last for up to 6 months. 124
• The OT1, OT3 and CT1 classifications grades encourage the trainee to develop a broad base of operating skills and promote learning. Although the OT3 and CT1 spend some time performing a role above their pay structure, the categories have always been fair and encourage training and efficiencies benefitting both the company and the operators involved. 125
• Overtime coverage only became an issue again when consecutive EBAs resulted in further de-manning, where not working overtime to cover absences became impossible due to a reduction in the numbers in the remaining workforce. The solution was ‘Flexi-time’. Mr Boyham disagrees with the characterisation of the 1992 EBA as including compensation for 154 hours overtime per annum. Over the years, the nature of the annualised salary and staff structure changed so that the original calculation representing the compromise was no longer relevant. 126
• There will be fatigue implications on employees if BP increases the number of sequential night shifts in its shift roster. 127
Clint Brenchley
[34] Mr Clint Brenchley filed a single witness statement in support of the AWUWD. At the time of filing, Mr Brenchley was employed by BP as a Deputy Shift Team Leader. Among other things, Mr Brenchley deposed that:
• He volunteered for a role to support the TAR in 2017 and was surprised when told that he would have to lead the TAR event on the RCU because at that stage in his career he had no experience with leading a TAR. 128
• The only training he received during the TAR17 was a single session conducted by Mark Roberts about creating permits. 129
• During the TAR in 2017, delays arose due to the inefficiency of the maintenance crew and unfinished maintenance work that should have been completed before the commencement of shutting down. 130
• A TAR lead is required to have a much higher level of understanding of the process unit and has the responsibility to create and approve permits, which usually lies with an Area Authority. 131
Jeremy Butson
[35] Mr Jeremy Butson filed a single witness statement in support of the AWUWD. At time of filing, Mr Butson was employed by BP as an RCU Control Technician (CT2A). Among other things, Mr Butson deposed that:
• The execution of TAR17 on the SUR units went well, with only minor delays to the plan that were outside of the team’s control, such as the start and finish times of other units. 132
• There are many skills a TAR Ops Lead requires that are outside their normal role such as a high level of experience on the unit, a higher level of leadership, a greater level of understanding of more complex or novel maintenance processes and a greater level of responsibility. 133
• Gregg Cary
[36] Mr Gregg Cary filed a single witness statement in support of the AWUWD. At the time of filing, Mr Cary was employed by BP as a Control Technician. Amongst other things, Mr Cary deposed that:
• There were a number of reasons for the introduction of an annual salary in the 1992 Enterprise Bargaining Agreement with BP, including a remuneration package that would incentivise the workforce to reduce and ultimately eliminate inefficient and restrictive work practices that had become institutionalised over decades. 134
Christopher Craig
[37] Mr Christopher Craig filed a single witness statement in support of the AWUWD. At the time of filing, Mr Craig was employed by BP as a Deputy Shift Team Leader (DTSL). Amongst other things, Mr Craig deposed that:
• Changes to the shift roster, especially with short term notice, will have a big personal impact on Mr Craig. The current roster arrangement being fixed and predictable provides the maximum stability for Mr Craig’s children. 135
• Working in the 2017 TAR had impacts on the custody arrangement Mr Craig had with his children. 136
• He understood the expectation that the DSTL role came with an expectation of being more flexible in moving onto different shifts permanently to provide STL cover. 137
• He has covered the STL role many times more than would be expected just for leave coverage. 138
• Between Jan 2014 and July 2017, there was no STL on his shift meaning that he did the majority of coverage in this period. This created difficulties in taking annual leave. 139
• In his time at BP, he has never heard of the requirement to provide 150 additional hours of labour with no TOIL or remuneration. 140
Jarrad Cullen
[38] Mr Jarrad Cullen filed a single witness statement in support of the AWUWD. At the time of filing, Mr Cullen was employed by BP as a Control Technician. Amongst other things, Mr Cullen deposed that:
• On 2 October 2018, the D-shift Shift Manager asked for volunteers to write training manuals for the L&D department (operations training department). 141
• He requested that he be given appropriate training before working in the RCU L&D role, but he was told by Garry Budd that BP would not provide the training at that time. 142
• On 30 October 2018 he wrote an e-mail to Renee Sandy and Garry Budd to inform that that he was not prepared to take on the L&D role as he was not appropriately trained. 143
Scott Dean
[39] Mr Scott Dean filed a single witness statement in support of the AWUWD. At the time of filing, Mr Dean was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Dean deposed that:
• At no point in his job interview or to the date of filing had it been mentioned to him that he is required to work extra hours for free outside of his normal 35 hours a week as outlined in his job interview. 144
• Having a 9 day fortnight allows him to maintain a work / life balance with his children; if he had known that the 9 day fortnight was going to be taken away, he would not have moved his family from Brisbane to Perth to work in this role. 145
Martin Donnelly
[40] Mr Martin Donnelly filed a single witness statement in support of the AWUWD. At the time of filing, Mr Donnelly was employed by BP as a Control Technician. Amongst other things, Mr Donnelly deposed that:
• Having a predictable roster allows him to manage his family commitments. Disruptions to child custody arrangements have in the past caused his children stress and anxiety. 146
• Due to personal commitments he has had to refuse requests to work overtime because he has been unable to make care arrangements. 147
• If he is unable to refuse requests to work overtime, there will be occasions where he will not be able to comply due to his responsibilities to his children. By failing to comply, he asserts that he will face the prospect of disciplinary action. If he agrees to work overtime, he shall be in breach of court orders regarding childcare. 148
Tegan Duffy
[41] Ms Tegan Duffy filed a single witness statement in support of the AWUWD. At the time of filing, Ms Duffy was employed by BP as an Operations Technician. Amongst other things, Ms Duffy deposed that:
• Form Mr Duffy’s interview to officially being offered the job, ‘there was no mention of additional hours’. She was advised that any additional hours worked would be compensated with TOIL. 149
• If her shift roster were to change at short notice, it would be impossible to make school and Day care arrangements for her children. 150
• Working a different shift roster with additional hours may compromise her ability to enable her children to engage in sporting activities. 151
Jeremey Durack
[42] Mr Jeremey Durack filed a single witness statement in support of the AWUWD. At the time of filing, Mr Durack was employed by BP as a Control Technician. Amongst other things, Mr Durack deposed that:
• Upon commencing employment with BP in 2011 he noted that the EBA stated that extra hours of work were required to maintain the 35 hour week. These were in the form of Make up Days. Furthermore, that his employment contract mentioned additional hours and that these hours were an expectation of employment and were to be reasonable. These additional hours were referenced as overtime and would be compensated with time off in lieu. 152
• It was explained to him that overtime would be used to cover for an absence in a manned position and that it was to be shared amongst the shift on an equal basis. 153
• Since starting his position in November 2011, he has not been made aware of any position that has gone unmanned. 154
Mark Ellis
[43] Mr Mark Ellis filed a single witness statement in support of the AWUWD. At the time of filing, Mr Ellis was employed by BP as a Control Technician (Mogas CT3A). Amongst other things, Mr Ellis deposed that:
• Sometime around the end of November 2016 he had a discussion with Paul Mace where it was agreed that he would continue to work on the simulator for an average of 35 hours per week with the freedom to choose which days he worked and the number of hours each day, provided he adequately covered the training requirements of all shifts equally. 155
• The role of CR3/Isom simulator trainer and Mogas L&D coordinator require two very different skillsets and the amount of work required by each role fills a 35-hour working week by itself. 156
Haile Gebrezgabher
[44] Mr Haile Gebrezgabher filed a single witness statement in support of the AWUWD. At the time of filing, Mr Gebrezgabher was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Gebrezgabher deposed that:
• He started working for the Refinery in June 2015 as a day worker. However, due to BP’s request to provide shift cover, he has been flexible to accommodate such requests. 157
• He has accumulated over 30 hours of credit time in lieu by being flexible and volunteering to cover during TAR2017. 158
Neil Glanz
[45] Mr Neil Glanz filed a single witness statement in support of the AWUWD. At the time of filing, Mr Glanz was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Glanz deposed that:
• As a day worker, when covering a shift position, he was paid at the shift workers’ rate of pay for his grading. 159
• At the beginning of March 2017, all day workers were asked by the Laboratory Supervisor if they would like to opt in or opt out of the shift coverage pool and those ‘who said no were simply not asked when an opportunity came up.’ 160
• In 2016 he was asked if he would like to volunteer to assist the refinery for the 2017 TAR. 161
• From 27 July 2016 until the first day of TAR 2017 his roster did not change, he continued to work his day shift. He was required to attend a weekly briefer meetings which would run for more than half an hour. These meetings were scheduled during normal working hours. 162
• He had a number of duties for the 2017 TAR which were outside of his normal duties as a Quality Measurement Technician. 163
• During the TAR his roster was 13 days on and 1 day off, working 12-hour shifts. He found that his fatigue levels increased dramatically working this roster. He felt that he was not adequately recovered after this time, and he applied for and was approved time off using TOIL hours. 164
Blair Leafe
[46] Mr Blair Leafe filed a single witness statement in support of the AWUWD. At the time of filing, Mr Leafe was employed by BP as a Process Operator. Amongst other things, Mr Leafe deposed that:
• He was involved in the J1088 project in 2018. 165
• To his knowledge, he did not hear feedback from the company that the team did not get enough support. The commissioning project generated a great deal of positive feedback from his STL’s, PE’s and Shift Managers. 166
• To his recollection, there was never an email from the company soliciting for extra support and he did not hear anyone within the operations team saying that they could not help if help was required. 167
Ryszard Majewski
[47] Mr Ryszard Majewski filed a single witness statement in support of the AWUWD. At the time of filing, Mr Majewski was employed by BP as a Control Technician. Amongst other things, Mr Majewski deposed that:
• In mid-2018 there was a request made for an operator to fill a role in the L&D department. He informed his Shift Manager of his interest in filing the role. 168
• In March 2019 he was told by Barry Shackles that he would be moving to the L&D department to replace Chris Settle. There has not been a time frame for the move put in place, and this is the last he has heard anything about the move. 169
Tammy McNabb
[48] Ms Tammy McNabb filed a single witness statement in support of the AWUWD. At the time of filing, Ms McNabb was employed by BP as a Quality Measurement Technician. Amongst other things, Ms McNabb deposed that:
• She was never informed, and nor was it mentioned in her contract or the 2010 and 2014 Agreements, of any requirement to perform an additional 150 uncompensated hours per year. 170
• She has been required to perform 70 hours of make-up day (MUD) time each year since taking her current Award shift position to make up the 35 hour week. Any additional time accrued above her MUD time has been credited by BP as TOIL, where she receives one hour of TOIL for each hour of additional time worked. 171
• The only exception to the application of TOIL was when BP made a request for shift cover during the 2017 TAR. Night shifts are not normally worked in the laboratory, the operating hours are from 7am to 11pm. One hour of TOIL would accrue for each hour worked between 11pm and 7am when a rostered shift worked moved from afternoon shift to full night shift, or a day worker moved from their regular day roster. Two hours of TOIL would accrue per hour between 11pm and 7am when a worker came in whilst they were rostered off a shift. 172
Brian Meharry
[49] Mr Brian Meharry filed a single witness statement in support of the AWUWD. At the time of filing, Mr Meharry was employed by BP as a Day Technician North (OT4). Amongst other things, Mr Meharry detailed his involvement in the 2017 TAR, including his role in issuing permits for work. 173
Brian Morris
• Mr Brian Morris filed one witness statement and gave oral evidence in support of the AWUWD. 174 Mr Morris had various roles within BP and the AWU including as a staff member of the AWU Operations Negotiations Committee. Among other things, Mr Morris deposed that:
• Employees at BP historically worked an 8-hour day, afternoon and night shift with alternating long and short breaks after each round of shifts. 175
• As Operation Supervisor and Shift Manager (1994 – 2011), he came to appreciate the factors that led to the introduction of TOIL, including added workload requirements. The result of various changes led to some award shift people working up to a year or more in planning and preparation roles and an increased coverage into projects or covering staff on leave. 176
• An example of peer group pressure occurred in 1995 when an operator who covered a day shift phoned another operator on his shift who was ‘on top of the rolling list’ and had not responded to Mr Morris’ phone call. The operator said to the other operator ‘Why am I here again covering your overtime? Get your fucking arse in here so I can go home to my family’. The other operator subsequently came in to cover for the remainder of the shift. 177
Felicity Mortley
[50] Ms Felicity Mortley filed a single witness statement in support of the AWUWD. At the time of filing, Ms Mortley was employed by BP as a Shift Coordinator (LT6). Amongst other things, Ms Mortley deposed that:
• Upon obtaining her position in the laboratory, she was made aware that she was expected to make up 70 hours over the year. She was informed that under her contract, any hours worked above the 70 make up hours would be compensated for in TOIL. 178
• It was not until the most recent EA negotiation period that she heard of the bank of 150 hours that she was expected to provide to the company. This concept was not mentioned to her during her job interview process or at any time during her employment at BP. 179
• If her roster were to change with short notice, this would have financial and familial impacts. 180
• If roster hours were to change to 12pm-12am, this would reduce her hours of sleep and create a potential safety hazard. 181
Clayton Phillips
[51] Mr Clayton Phillips filed a single witness statement in support of the AWUWD. At the time of filing, Mr Phillips was employed by BP as a Control Technician. Amongst other things, Mr Phillips deposed that:
• After a meeting took place on 26 June 2018, representatives of the Offsites Area Work Group (OAWG) received an email wherein BP mentioned that additional RAMAN sampling was required. 182
• To his belief all shifts responded with a similar response which was that due to the meeting not reaching quorum the meeting was invalid. 183
• C Shift did not deny the request to take samples; but they did have unanswered questions that required a meeting to discuss. 184
• After an unofficial meeting with the Area Superintendent, a mutual understanding was reached; operators proceeded to take samples and BP agreed to make recommended changes. 185
• Throughout this process Operators did not deny the request to take samples. It was deposed that a breakdown in communications was a big factor in the delay. 186
Jenna Shemeld
[52] Ms Jenna Shemeld filed a single witness statement in support of the AWUWD. At the time of filing, Ms Shemeld was employed by BP as an Operations Control Technician. Amongst other things, Ms Shemeld deposed that:
• At no time during the recruitment process in relation to her role as BP was she informed by BP that she owed the company a bank of hours. At the time of signing her contract, the agreement recognised a deficit of 40 hours per year ‘caused by the 5-panel roster’ which could be scheduled as compulsory training make up days. The agreement stated words to the effect that any hours worked in excess of the 35-hour week would accrue TOIL. 187
• She does not recall receiving any formal explanation of overtime management during the recruitment process. It was explained to her that she was expected to perform a reasonable amount of overtime to ensure all operating positions are feasibly manned. 188
• In relation to shift coverage, she is not paid to be on call during any time of her break, and her understanding is that she has no obligation to remain in a ‘ready state for work’. Accordingly, it is to her understanding that she is not under any obligation to agree to overtime if she is unavailable. 189
• Overtime response forms part of the Operations Branch Specific Measures for the BP Award Variable Pay Plan; wherein performance against targets is assessed to determine what bonus payment is received. 190
• If she was directed to work additional unscheduled hours, or her regular roster was able to be changed by the company with minimal notice, she would not be able to adequately breastfeed her daughter and make suitable childcare arrangements. 191
Rene Sladky
[53] Mr Rene Sladky filed a single witness statement in support of the AWUWD. At the time of filing, Mr Sladky was employed by BP as a Control Technician. Amongst other things, Mr Sladky deposed that:
• He has done several TAR/shutdown events since starting with BP. 192
• All of his knowledge in TAR/shutdown execution had been learnt during the events, he received no formal training. The only training he received for TAR execution was ‘a few quick power point presentations’ on how permitting has changed from the normal system used to a Brownfields system. 193
• One nightshift during the last Hydy TAR he was told to leave a fellow Operator to man the Shift Team Leader position. This made him feel uncomfortable as shutting down or starting up a unit is a vulnerable time where an incident could occur. He decided to spend his night ‘mostly on the Hydys and going backwards and forwards when there was any need for Shift Team Leader duties’. 194
Dean Strauch
[54] Mr Dean Strauch filed a single witness statement in support of the AWUWD. At the time of filing, Mr Strauch was employed by BP as a Control Technician. Amongst other things, Mr Staunch deposed that he did not feel that 2017 TAR was undermanned but rather the systems in place with control of work were difficult to work with given a TAR timeframe. 195
Kylie Taylor
[55] Ms Kylie Taylor filed a single witness statement in support of the AWUWD. At the time of filing, Ms Taylor was employed by BP as a Quality Measurement Technician. Amongst other things, Ms Taylor deposed that:
• She would incur additional childcare related costs if BP were to implement changes to rosters and require employees to work extra hours at short notice. 196
• The current expectation and system still in use now is that no extra hours above the 70 hours of MUD time is required. 197
Katie Wagner
[56] Ms Katie Wagner filed a single witness statement in support of the AWUWD. At the time of filing, Ms Wagner was employed by BP as a Control Technician. Amongst other things, Ms Wagner deposed that:
• A one week notice to temporarily change her roster would be detrimental to her child. 198
• If the company were to direct a permanent roster change at a months’ notice her ‘home life would be thrown into disarray’. 199
• Moving to a day roster at a significantly reduced wage would impact her ability to afford therapy services for her son. 200
Clive Hacking
[57] Mr Clive Hacking filed a single witness statement in support of the AWUWD. At the time of filing, Mr Hacking was employed by BP as a Control Technician. Amongst other things, Mr Hacking deposed that:
• BP does not identify which roster pattern they will implement subject to clause 17 of the Workplace Determination. 201
• BP employed Integrated Safety Support to do a fatigue hours of work analysis of current rosters. The ISS Report showed that the current shift roster worked by the employees covered by the 2014 Agreement has the least fatigue impact on employees. 202
• If BP has the ability to change shift rosters and shift patterns this may have a profound effect on the fatigue levels and well-being of shift workers and their families. 203
• Parts of the isomerisation unit are in very poor condition and this requires additional care when preparing for and doing maintenance. 204
• There were two incidents in the 2017 TAR that BP claim would have been prevented by having more operators available. The Incident Summary Record in relation to the first incident does not mention that having more operators would have prevented this incident. 205
• Additionally, the United Group Limited report outlines a series of failures of UGL work crew in relation to the first incident. Mr Hacking does not consider the non-availability of Operators as having caused this incident. 206
• Furthermore, in relation to the second incident, the Alky Incident Summary does not identify a mistake by the Operator as having led to the Alky incident. 207
• Custom and practice is any involvement in TAR is voluntary, and any additional hours attract TOIL. 208
• It is always better in a TAR event to have volunteers rather than being directed. 209
• He strongly supports the current custom and practice which involves operators being able to volunteer for non-core work and overtime. 210
• His current contract of employment states that he will be paid fortnightly. When he was paid monthly, he found it more difficult to budget and it was more stressful towards the end of the pay month. 211
• BP claimed that Operators have refused to take samples of the purposes of building RAMAN models which are then analysed in the Laboratory. Due to a series of errors, lack of communication and a cancelled meeting there was some confusion about what samples were required. After a series of workgroup meetings clarifying what was required, the samples were taken. 212
• BP has claimed that operators have refused to support installation and commissioning of a new recycle gas compressor on the Isomerisation unit. He does noes recall any requests by BP for Operator assistance for this project. 213
• In relation to BP’s claim that there has been a refusal from operators to fill learning and developing roles, conversations with relevant employees indicate one employee did not accept the role as his request for appropriate training was refused by BP or another employee interested in an L&D role had not heard anything from BP about moving into the position. 214
• ERG training was recognised as a key area for safety improvement in a report BP Commissioned in around 2000. This report resulted in the implementation of a written procedure for handover at the commencement and conclusion of each shift, which in turn resulted in better handovers. 215
Denise Solly
[58] Ms Denise Solly filed a single witness statement and gave oral evidence 216 in support of the AWUWD. At the time of filing, Ms Solly was employed by BP as a Quality Measurement Technician. Among other things, Ms Solly deposed that:
• She was involved in the discussions regarding laboratory workers moving to an annualised salary in 1996. The laboratory annualised salary incorporated all payments which had been paid prior to being annualised. These payments included normal earnings, overtime and allowances such as meal allowance, telephone call back allowance, clothing, footwear and equipment allowance and Alky clothing allowance. 217
• There were savings that resulted from the lab moving to annualised salaries in the past, including a reduction in the number of laboratory workers from 28 to 26 people, more coverage on holidays and weekends and the simplification of wages. 218
• Regarding requests to work overtime, she currently receives TOIL for each occasion on a 1 hour for 1 hour worked basis. 219
• A technician must work an extra 70 hours a year to fulfil the 35 hour week requirements and in practice the technician accumulates this MUD time as TOIL on a 1 hour for 1 hour worked basis. At the end of the year 70 hours per technician is deducted from their TOIL balance by the Laboratory supervisor to fulfil the MUD requirement. 220
• To her knowledge she does not know of any time that a request to work outside of the rostered hours has not been met. 221
• The BPWD seeks to ‘direct’ employees to work additional hours when required to cover shift and other business needs. It is unreasonable to expect some technicians to be able to immediately cover any gaps in their rostered off time as they may have personal or caring responsibilities. Most technicians will respond positively to a request to work outside their rostered hours because they know that they will get that time back as TOIL. 222
• In the BPWD clauses 29 and 31 attempt to break up the annualised salary into a number of components. She disagrees with this break up as it undermines the original intent of the annualised salary. 223
• The BPWD breakdown of the current salary is wrong and it is not clear how the different components have been calculated for a shift worker or a day worker. 224
• At no point during the period that laboratory workers obtained annualised salaries did the company mention that the workforce owes 150 hours of work for no additional remuneration. 225
• There are numerous examples where BP has recognised that lab technicians are compensated for working any hours over 35 hours by TOIL on a 1 hour for 1 hour basis. 226
• BP’s requests for laboratory workers to work nightshift on the 2017 TAR and the associated TOIL arrangements acknowledge that shift workers in the laboratory are not compensated to work nightshift and that double TOIL was given for working while on a break. 227
• Certificates of Quality for the refinery laboratory LT6, there is no need for an afternoon shift worker to be available after 11pm to do this task. 228
• During the 2017 TAR the initial gaps in the roster for laboratory employees was subsequently filled. 229
• Two of the scheduled nightshifts were cancelled by BP with less than 24 hours’ notice. The AWUWD seeks 72 hours’ notice for cancellation of the nightshifts as 24 hours’ notice is an insufficient time to rearrange personal life and family plans. 230
• The AWU objects to BP management being able to direct how employees use their MUD time, in particular the ability for BP to direct a worker to cover for a laboratory technician allocated to project work. 231
• If MUD time is used to cover people who are moved to projects or other non-core work activities, training will suffer. 232
• Clause 8.6(g) of the BPWD regarding the ability to move a permanent shift worker to a day worker position and reduce the pay accordingly will render a permanent shift worker to be financially disadvantaged. 233
• In the BPWD leave loading is not mentioned, and it is unclear whether the rate of pay for a dayworker includes the leave loading the Lab Day Loading component in the attempted breakdown of annualised salary. 234
• Currently Day workers do not work public holidays, and the BPWD at clause 15.10 stipulates that a day worker may be required to work on a public holiday. Currently laboratory day workers are entitled to take Easter Tuesday as a public holiday, but this entitlement has been omitted from the BPWD. BP staff have been given a ‘my day’ in lieu of East Tuesday wherein they can utilise this day whenever is agreed, and this practice is enshrined in clause 15.10 of the AWUWD. 235
• The AWUWD fairly compensates dayworkers that are required to work on a public holiday through providing them with 2 hours of TOIL for 1 hour worked as contained in clause 15.10(c), in contrast to the BPWD which provides 1 hour of TOIL for 1 hour worked. 236
• The AWUWD has removed the line inserted in the BPWD regarding a pension factor for determining the value of pre-1992 service to prevent disputes and disadvantaging laboratory employees. 237
• BP seeks to remove the entitlement of a 9 day fortnight and this would have personal impacts on the four laboratory dayworkers who are currently eligible to take a rostered day off per fortnight under the 9 day fortnight clause. 238
• There are major changes in the BPWD to the category structure for laboratory technicians, BP’s proposed category structure is ambiguous, lacks definition and would be difficult to use in practice. 239
• AWU seeks to continue the redundancy provisions included within the 2014 Agreement as the workforce covered by the enterprise agreement has specific skills unique to the business of oil refining, BP is the only refinery in WA and only 1 of 4 in Australia meaning that finding another equivalent job if made redundant is hard. The BPWD seeks to reduce the current redundancy entitlement conditions to the minimum NES quantum. 240
• In relation to the issue of contractors and consultation through the Laboratory Consultation Committee, the AWU has concerns about BP’s practices surrounding the use of contractors. This includes the number of permanent EA workers in the laboratory falling from 28 in 1996 to 19 now, wherein the number of contractors in this period has risen. In other parts of BP, the maintenance areas have a higher proportion of contract workers than full time BP workers. Clause 25 of the AWUWD offers job security for the workforce. 241
• Troy David Irwin
[59] Mr Troy Irwin filed a single witness statement and gave oral evidence 242 in support of the AWUWD. At the time of filing, Mr Irwin was employed by BP as a Process Operator and was also an employee representative on the AWU Negotiating Committee for the AWU Operations/Laboratory Agreement negotiations. Among other things, Mr Irwin deposed that:
• There were eight phases of meetings between BP and the negotiation team representing employees. 243
• The BPWD would lead to disputes and unrest as ‘the total culture seems to be shifting’. It would put in doubt the annualised salary, rosters and the ability to have a successful work/life balance through planning for future family time. 244
• Under the BPWD there is no DSTL CT2A grade for a Day Worker and therefore he would suffer a $72,550.56 salary reduction as he would be classified as a CT2A. 245
• A fortnightly pay cycle allows him to budget more effectively and to handle financial emergencies better. A monthly pay cycle would require him to renegotiate his pay cycle payments. 246
• The 2014 Agreement does not mention a start time for Operations Employees, but in his experience working at BP since 1995, the start has always been 7 o’clock. 247 He arrives at the security gate for the start of his shift anywhere between 6:10 or 6:30am, to ensure that a complete handover can take place.248
• During an OCC meeting held on 7 September 2016, there were concerns raised from DSTLs about the amount of time the DSTLs were spending in covering the STL position and that the coverage was outside the intent of the DSTL role profile and agreements. 249
• Clause 10.1 of the AWUWD maintains the status quo of employees voluntarily entering into Project teams. 250
• A handover can take 5 to 10 minutes for an Outside Technician, 10 to 30 minutes for a Control Technician and 15 to 45 minutes for a Deputy Shift Team Leader or Shift Team Leader. 251
• The BPWD removes any detailed terms of calculation for the bonus and does not guarantee a minimum bonus payment of 2.25% per year. Furthermore, the individual component for the bonus will go against the culture within the refinery. 252
• The Operations Consultative Committee has enabled efficiencies in the organisation as a result of the consultation with it. 253
• The BPWD makes no reference to Contractors and Supplementary Labour and the AWUWD retains the ability to influence BP if it is considering outsourcing current direct-employee positions. 254
• The clause in the AWUWD regarding redundancy is required to protect workers who are transitioning to new jobs/industries. 255
• The clause in the AWUWD regarding minimum staffing numbers addresses the AWU’s concern that if staffing numbers are to reduce, then BP may rely upon overtime to cover the shortfall, thus eroding the 35 hour week with excess overtime. 256
• The removal of all guidelines in the BPWD around process testing and process maintenance leaves the tasks open to interpretation and may lead to disputes in the future. 257
Rod Russell
[60] Mr Rod Russell filed a single witness statement in support of the AWUWD. It was indicated to the Full Bench that the AWU would not be relying on Mr Russell’s evidence and accordingly, the Full Bench has not taken his evidence into account.
Section 275 matters
[61] In reaching our conclusions below, we have taken into account all of the matters set out in section 275 of the Act when deciding what terms to include in a workplace determination. Some of these matters will necessarily apply themselves differently to the specific issues in dispute, however by way of summary and in respect of the entire Workplace Determination, we have had regard to each factor in the following way:
The merits of the case – s 275(a)
[62] The Full Bench in Transport Workers' Union of Australia v Qantas Airways Limited; Q Catering Limited 32 (Qantas Airways) observed in relation to the merits consideration (endnotes omitted):
“[33] This is obviously an important consideration although it is neither possible nor desirable to exhaustively list the disparate merit considerations that might be considered relevant in this matter.
[34] EBA7 is an appropriate starting point because it represents the package of terms the parties have previously agreed to apply, the terms under which the parties are presently operating, and the basis for the negotiations conducted by the parties. If terms have not been operating satisfactorily or if circumstances have changed such as to warrant a change, then a party seeking the change must make out a case for the change. Traditional merit considerations will be relevant. These fall generally within the concepts contained in the objects of the Act including the achievement of productivity and fairness through enterprise level collective bargaining, noting that this arbitration is in substitution for bargaining between the parties that did not result in an agreement.
• Minimum numbers will ensure that arrangements about Shift Coverage and TAR resourcing will be fair and reasonable 401;
• Reductions in the number of operators will impact on opportunities for training and progression 402 and have ramifications for TAR403;
• Although the clause records the current number of STLs (who are not covered by the Workplace Determination), with anything less than 15 STLs, the responsibilities of STLs will permanently and consistently fall to DTSLs 404;
• There is no evidence that the imposition of minimum numbers will impose any difficulties for BP 405.
[319] In summary, BP opposes the proposed clause in the AWUWD because:
• BP alone should determine the minimum number of Operators, particularly given that BP alone is responsible under major hazard legislation for the safe operation of the Kwinana Refinery 406;
• The Workplace Determination should not interfere in the way in which BP manages its business in the absence of any evidence demonstrating unfairness or reasonableness 407;
• There is no basis in the evidence to suggest that the members of the OCC are qualified or skilled to make assessments on the minimum number of Operators required to safely operate the Kwinana Refinery 408;
• BP has identified currently some positions that will no longer be necessary, and BP should not be precluded from removing such positions if it wishes to do so 409;
• BP should not be precluded from reducing minimum numbers in the future, including by reliance on new technologies or in order to meet financial pressures 410;
• This clause effectively seeks a prohibition on redundancies for positions that BP may not need 411;
• Since 2007, the Operators Consultative Committee has not conducted staffing reviews and therefore this aspect of the clause lacks merit. 412
[320] We do not consider it appropriate to specify minimum manning levels within the Workplace Determination. Management have a responsibility to manage and meet regulatory requirements at the site. To unduly interfere in this discretion is not necessary. To the extent that BP may seek to change staffing levels during the period of operation of the Workplace Determination, these changes may be subject to consultation requirements of the Workplace Determination.
Day Team
[321] BP in their closing submissions canvassed their proposal to introduce a new role of a Day Worker working in a new Day Team. 413 BP submitted that the new role is intended to provide more support to maintenance personnel, including by increasing the continuous interaction between a particular Operator and the maintenance personnel.414 The new role will be involved in issuing permits to maintenance personnel but will not remove all of the current workload of Shiftworkers associated with issuing permits.415
[322] There was insufficient evidence available to enable the Full Bench to form a view in relation to this proposal.
Draft Determination
[323] We have issued with this decision a draft of the Workplace Determination to reflect this decision. The draft Workplace Determination will be provided to the parties together with a copy of this decision.
[324] The parties are directed to confer on the content of the draft and provide any agreed changes or comments to the Full Bench by 3 June 2020.
VICE PRESIDENT
Appearances:
Mr HJ Dixon and Mr AB Gotting of Counsel, for BP Refinery (Kwinana) Pty Ltd.
Ms R Cosentino of counsel, and Mr C Young, for the Australian Workers’ Union.
Hearing details:
5 – 13 August and 1 November
2019
Perth and Sydney
Final written submissions:
BP Refinery (Kwinana) Pty Ltd’s final submissions dated 29 October 2019.
The Australian Workers’ Union’s final submissions dated 3 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR719578>
1 All operations employees who are covered by the classifications contained in clause 60 of Schedule A to the 2014 Agreement, and all laboratory employees who are covered by the classifications contained in clause 71 of the 2014 Agreement.
2 PR701661.
3 PR703616.
4 Subsection 273(3) of the Act provides that 273(2) does not apply to the determination if the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes).
5 See paragraphs [6] to [9] of this decision.
6 Transcript of proceedings dated 7 August 2019, PN1782; PN1819; Transcript of proceedings dated 13 August 2019, PN4142.
7 For Operators see the 2014 Agreement, Schedule A, clause 60; For Laboratory Employees see the 2014 Agreement Schedule B, clause 71.
8 Statement of Denise Solly dated 19 June 2019, paragraph 94. .
9 Statement of David Plant dated 6 May 2019, paragraph 31.
10 Statement of David Plant dated 6 May 2019, paragraph 49.
11 Statement of David Plant dated 6 May 2019, paragraph 53.
12 Statement of David Plant dated 6 May 2019, paragraph 60.
13 Statement of David Plant dated 6 May 2019, paragraph 72.
14 Transcript of proceedings dated 5 August 2019, PN683-PN684.
15 Statement of Paul Mace dated 6 May 2019, paragraph 53.
16 Statement of Paul Mace dated 6 May 2019, paragraph 64.
17 Statement of Paul Mace dated 6 May 2019, paragraph 70.
18 Statement of Paul Mace dated 6 May 2019, paragraph 73.
19 Statement of Paul Mace dated 6 May 2019, paragraph 75.
20 Statement of Paul Mace dated 6 May 2019, paragraph 138.
21 Statement of Paul Mace dated 6 May 2019, paragraph 141.
22 Statement of Paul Mace dated 6 May 2019, paragraph 146.
23 Statement of Paul Mace dated 6 May 2019, paragraphs 161, 164.
24 Statement of Paul Mace dated 6 May 2019, paragraph 213.
25 Statement of Paul Mace dated 6 May 2019, paragraph 214.
26 Statement of Paul Mace dated 22 July 2019, paragraph 25.
27 Statement of Paul Mace dated 22 July 2019, paragraph 49.
28 Statement of Paul Mace dated 22 July 2019, paragraph 75.
29 Statement of Paul Mace dated 22 July 2019, paragraph 79.
30 Statement of Paul Mace dated 22 July 2019, paragraph 81.
31 Statement of Paul Mace dated 22 July 2019, paragraph 82.
32 Statement of Paul Mace dated 22 July 2019, paragraph 102.
33 Statement of Paul Mace dated 22 July 2019, paragraph 104.
34 Statement of Paul Mace dated 22 July 2019, paragraph 128.
35 Statement of Marina Campbell dated 9 May 2019, paragraphs 31, 33.
36 Statement of Marina Campbell dated 9 May 2019, paragraph 53.
37 Statement of Marina Campbell dated 9 May 2019, paragraphs 59-63.
38 Statement of Marina Campbell dated 9 May 2019, paragraph 66; Transcript of proceedings dated 8 August 2019, PN3304.
39 Statement of Marina Campbell dated 9 May 2019, paragraph 67.
40 Statement of Marina Campbell dated 9 May 2019, paragraph 78.
41 Statement of Marina Campbell dated 9 May 2019, paragraph 80.
42 Statement of Marina Campbell dated 9 May 2019, paragraph 91, 92.
43 Statement of Marina Campbell dated 9 May 2019, paragraphs 117, 119.
44 Statement of Marina Campbell dated 9 May 2019, paragraph 121.
45 Statement of Marina Campbell dated 9 May 2019, paragraph 150.
46 Statement of Marina Campbell dated 9 May 2019, paragraph 154.
47 Statement of Marina Campbell dated 9 May 2019, paragraph 158.
48 Statement of Marina Campbell dated 9 May 2019, paragraph 159.
49 Statement of Marina Campbell dated 9 May 2019, paragraphs 160-162.
50 Statement of Marina Campbell dated 9 May 2019, paragraph 193.
51 Statement of Marina Campbell dated 9 May 2019, paragraph 206.
52 Statement of Marina Campbell dated 9 May 2019, paragraph 208.
53 Statement of Marina Campbell dated 9 May 2019, paragraph 225.
54 Statement of Marina Campbell dated 9 May 2019, paragraph 232.
55 Statement of Marina Campbell dated 9 May 2019, paragraph 236.
56 Statement of Marina Campbell dated 9 May 2019, paragraph 267.
57 Statement of Marina Campbell dated 9 May 2019, paragraph 284.
58 Statement of Marina Campbell dated 9 May 2019, paragraph 321.
59 Statement of Marina Campbell dated 9 May 2019, paragraphs 325, 332.
60 Statement of Marina Campbell dated 9 May 2019, paragraph 345.
61 Statement of Marina Campbell dated 9 May 2019, paragraphs 363, 364.
62 Statement of Marina Campbell dated 23 July 2019, paragraph 8.
63 Statement of Marina Campbell dated 23 July 2019, paragraph 49.
64 Statement of Marina Campbell dated 23 July 2019, paragraph 99.
65 Transcript of proceedings dated 6 August 2019.
66 Statement of Robert Bimrose dated 6 May 2019, paragraph 13.
67 Statement of Robert Bimrose dated 6 May 2019 paragraph 16.
68 Statement of Robert Bimrose dated 6 May 2019 paragraph 18.
69 Statement of Robert Bimrose dated 6 May 2019 paragraphs 19 – 20.
70 Statement of Robert Bimrose dated 6 May 2019, paragraph 31.
71 Statement of Robert Bimrose dated 6 May 2019, paragraph 32.
72 Statement of Robert Bimrose dated 6 May 2019, paragraph 34.
73 Statement of Robert Bimrose dated 6 May 2019, paragraph 39.
74 Statement of Robert Bimrose dated 6 May 2019, paragraph 44.
75 Statement of Robert Bimrose dated 6 May 2019, paragraphs 47, 49.
76 Statement of Robert Bimrose dated 6 May 2019, paragraph 51.
77 Statement of Robert Bimrose dated 6 May 2019, paragraph 62.
78 Statement of Robert Bimrose dated 6 May 2019, paragraph 82.
79 Statement of Robert Bimrose dated 6 May 2019, paragraph 89.
80 Statement of Robert Bimrose dated 6 May 2019, paragraph 102.
81 Statement of Robert Bimrose dated 6 May 2019, paragraph 103.
82 Statement of Robert Bimrose dated 6 May 2019, paragraph 110.
83 Statement of Robert Bimrose dated 6 May 2019, annexure RAB-1.
84 Statement of Robert Bimrose dated 22 July 2019, paragraph 93.
85 Statement of Robert Bimrose dated 22 July 2019, paragraph 14(a).
86 Statement of Robert Bimrose dated 22 July 2019, paragraph 35.
87 Statement of Robert Bimrose dated 22 July 2019, paragraph 43.
88 Statement of Robert Bimrose dated 22 July 2019, paragraph 52.
89 Statement of Robert Bimrose dated 22 July 2019, paragraph 63.
90 Statement of Robert Bimrose dated 22 July 2019, paragraph 94.
91 Statement of Paul Alford dated 6 May 2019, paragraph 26.
92 Statement of Paul Alford dated 6 May 2019, paragraph 27.
93 Statement of Paul Alford dated 6 May 2019, paragraph 28.
94 Statement of Paul Alford dated 6 May 2019, paragraphs 34, 35.
95 Statement of Paul Alford dated 6 May 2019, paragraph 35.
96 Statement of Paul Alford dated 6 May 2019, paragraph 43.
97 Statement of Paul Alford dated 6 May 2019, paragraph 45.
98 Statement of Paul Alford dated 6 May 2019, paragraph 45.
99 Statement of Paul Alford dated 6 May 2019, paragraph 53.
100 Statement of Paul Alford dated 6 May 2019, paragraph 59.
101 Statement of Paul Alford dated 6 May 2019, paragraph 63.
102 Statement of Paul Alford dated 6 May 2019, paragraph 80.
103 Statement of Paul Alford dated 6 May 2019, paragraph 83.
104 Statement of Paul Alford dated 6 May 2019, paragraph 97.
105 Statement of Paul Alford dated 6 May 2019, paragraph 109.
106 Statement of Paul Alford dated 6 May 2019, paragraph 116.
107 Statement of Paul Alford dated 6 May 2019, paragraphs 117, 118.
108 Statement of Paul Alford dated 6 May 2019, paragraph 120.
109 Statement of Paul Alford dated 6 May 2019, paragraph 124.
110 Statement of Paul Alford dated 6 May 2019, paragraph 129.
111 Statement of Paul Alford dated 6 May 2019, paragraph 133.
112 Statement of Paul Alford dated 11 July 2019, paragraph 6.
113 Statement of Paul Alford dated 11 July 2019, paragraph 14.
114 Statement of Paul Alford dated 11 July 2019, paragraph 16.
115 Statement of Paul Alford dated 11 July 2019, paragraph 18(c).
116 Statement of Paul Alford dated 11 July 2019, paragraph 32.
117 Statement of Paul Alford dated 11 July 2019, paragraph 32.
118 Statement of Paul Alford dated 11 July 2019, paragraph 35.
119 Statement of Paul Alford dated 11 July 2019, paragraph 45.
120 Statement of Paul Alford dated 11 July 2019, paragraph 57.
121 Statement of Gregory Power dated 6 May 2019, appendix 2, table 1, item 15, table 2, item 16.
122 Statement of Robert Boyham dated 17 June 2019, paragraph 19.
123 Statement of Robert Boyham dated 17 June 2019, paragraph 22.
124 Statement of Robert Boyham dated 17 June 2019, paragraph 25.
125 Statement of Robert Boyham dated 17 June 2019, paragraph 28.
126 Statement of Robert Boyham dated 17 June 2019, paragraphs 41, 44.
127 Statement of Robert Boyham dated 17 June 2019, paragraph 45.
128 Statement of Clint Brenchley dated 14 May 2019, paragraphs 11-12.
129 Statement of Clint Brenchley dated 14 May 2019, paragraph 15.
130 Statement of Clint Brenchley dated 14 May 2019, paragraphs 21, 23.
131 Statement of Clint Brenchley dated 14 May 2019, paragraphs 35, 38.
132 Statement of Jeremy Butson dated 17 June 2019, paragraph 30.
133 Statement of Jeremy Butson dated 17 June 2019, paragraph 32.
134 Statement of Gregg Cary dated 18 June 2019, paragraph 34.
135 Statement of Christopher Craig dated 17 June 2019, paragraphs 7-8.
136 Statement of Christopher Craig dated 17 June 2019, paragraph 10.
137 Statement of Christopher Craig dated 17 June 2019, paragraph 13.
138 Statement of Christopher Craig dated 17 June 2019, paragraph 16.
139 Statement of Christopher Craig dated 17 June 2019, paragraph 17.
140 Statement of Christopher Craig dated 17 June 2019, paragraph 21.
141 Statement of Jarrad Cullen dated 17 June 2019, paragraph 6.
142 Statement of Jarrad Cullen dated 17 June 2019, paragraph 9.
143 Statement of Jarrad Cullen dated 17 June 2019, paragraph 10.
144 Statement of Scott Dean dated 17 June 2019, paragraph 11.
145 Statement of Scott Dean dated 17 June 2019, paragraph 15.
146 Statement of Martin Donnelly dated 17 June 2019, paragraphs 15, 16.
147 Statement of Martin Donnelly dated 17 June 2019, paragraph 18.
148 Statement of Martin Donnelly dated 17 June 2019, paragraph 19.
149 Statement of Tegan Duffy dated 17 June 2019, paragraph 5.
150 Statement of Tegan Duffy dated 17 June 2019, paragraph 10.
151 Statement of Tegan Duffy dated 17 June 2019, paragraph 12.
152 Statement of Jeremy Durack dated 17 June 2019, paragraph 7.
153 Statement of Jeremy Durack dated 17 June 2019, paragraph 8.
154 Statement of Jeremy Durack dated 17 June 2019, paragraph 9.
155 Statement of Mark Ellis dated 18 June 2019, paragraph 9.
156 Statement of Mark Ellis dated 18 June 2019, paragraph 12.
157 Statement of Haile Gebrezgabher dated 17 June 2019, paragraph 4.
158 Statement of Haile Gebrezgabher dated 17 June 2019, paragraph 5.
159 Statement of Neil Glanz dated 17 June 2019, paragraph 9.
160 Statement of Neil Glanz dated 17 June 2019, paragraph 10.
161 Statement of Neil Glanz dated 17 June 2019, paragraph 13.
162 Statement of Neil Glanz dated 17 June 2019, paragraphs 16-17.
163 Statement of Neil Glanz dated 17 June 2019, paragraph 22.
164 Statement of Neil Glanz dated 17 June 2019, paragraph 25.
165 Statement of Blair Leafe dated 17 June 2019, paragraph 10.
166 Statement of Blair Leafe dated 17 June 2019, paragraph 18.
167 Statement of Blair Leafe dated 17 June 2019, paragraph 20.
168 Statement of Ryszard Majewski dated 17 June 2019, paragraph 4.
169 Statement of Ryszard Majewski dated 17 June 2019, paragraph 7.
170 Statement of Tammy McNabb dated 17 June 2019, paragraph 5.
171 Statement of Tammy McNabb dated 17 June 2019, paragraph 6.
172 Statement of Tammy McNabb dated 17 June 2019, paragraph 7.
173 Statement of Brian Meharry dated 19 June 2019, paragraph 4.
174 Statement of Brian Morris dated 17 June 2019; Transcript of proceedings dated 8 August 2019.
175 Statement of Brian Morris dated 17 June 2019, exhibit 6 paragraph 16.
176 Statement of Brian Morris dated 17 June 2019, paragraphs 52-54.
177 Statement of Brian Morris dated 17 June 2019, paragraph 55.
178 Statement of Brian Morris dated 17 June 2019, paragraphs 9, 11.
179 Statement of Brian Morris dated 17 June 2019, paragraph 12.
180 Statement of Brian Morris dated 17 June 2019, paragraph 21.
181 Statement of Brian Morris dated 17 June 2019, paragraph 22.
182 Statement of Clayton Phillips dated 17 June 2019, paragraphs 5-6.
183 Statement of Clayton Phillips dated 17 June 2019, paragraph 8.
184 Statement of Clayton Phillips dated 17 June 2019, paragraph 9.
185 Statement of Clayton Phillips dated 17 June 2019, paragraph 11.
186 Statement of Clayton Phillips dated 17 June 2019, paragraph 13.
187 Statement of Jenna Shemeld dated 15 June 2019, paragraph 8.
188 Statement of Jenna Shemeld dated 15 June 2019, paragraph 13.
189 Statement of Jenna Shemeld dated 15 June 2019, paragraph 16.
190 Statement of Jenna Shemeld dated 15 June 2019, paragraph 17.
191 Statement of Jenna Shemeld dated 15 June 2019, paragraphs 26-33.
192 Statement of Rene Sladky dated 17 June 2019, paragraph 6.
193 Statement of Rene Sladky dated 17 June 2019, paragraphs 16 – 17.
194 Statement of Rene Sladky dated 17 June 2019, paragraphs 27-28.
195 Statement of Dean Strauch dated 10 June 2019, paragraph 8.
196 Statement of Kylie Taylor dated 17 June 2019, paragraphs 21-22.
197 Statement of Kylie Taylor dated 17 June 2019, paragraph 33.
198 Statement of Katie Wagner dated 16 June 2019, paragraph 9.
199 Statement of Katie Wagner dated 16 June 2019, paragraph 10.
200 Statement of Katie Wagner dated 16 June 2019, paragraph 13.
201 Statement of Clive Hacking dated 19 June 2019, paragraph 45.
202 Statement of Clive Hacking dated 19 June 2019, paragraphs 49-50
203 Statement of Clive Hacking dated 19 June 2019, paragraph 52.
204 Statement of Clive Hacking dated 19 June 2019, paragraphs 59, 63.
205 Statement of Clive Hacking dated 19 June 2019, paragraphs 66, 71
206 Statement of Clive Hacking dated 19 June 2019, paragraph 79.
207 Statement of Clive Hacking dated 19 June 2019, paragraph 83.
208 Statement of Clive Hacking dated 19 June 2019, paragraph 91.
209 Statement of Clive Hacking dated 19 June 2019, paragraph 95.
210 Statement of Clive Hacking dated 19 June 2019, paragraph 97.
211 Statement of Clive Hacking dated 19 June 2019, paragraph 104.
212 Statement of Clive Hacking dated 19 June 2019, paragraphs 105, 107-108.
213 Statement of Clive Hacking dated 19 June 2019, paragraphs 109-110.
214 Statement of Clive Hacking dated 19 June 2019, paragraphs 118-120.
215 Statement of Clive Hacking dated 19 June 2019, paragraph 123.
216 Transcript of proceedings dated 13 August 2019.
217 Statement of Denise Solly dated 19 June 2019, paragraphs 21-22.
218 Statement of Denise Solly dated 19 June 2019, paragraph 35.
219 Statement of Denise Solly dated 19 June 2019, paragraph 60.
220 Statement of Denise Solly dated 19 June 2019, paragraph 71.
221 Statement of Denise Solly dated 19 June 2019, paragraph 74.
222 Statement of Denise Solly dated 19 June 2019, paragraphs 79-80.
223 Statement of Denise Solly dated 19 June 2019, paragraphs 81-82.
224 Statement of Denise Solly dated 19 June 2019, paragraphs 83-84.
225 Statement of Denise Solly dated 19 June 2019, paragraph 88.
226 Statement of Denise Solly dated 19 June 2019, paragraph 89.
227 Statement of Denise Solly dated 19 June 2019, paragraph 109.
228 Statement of Denise Solly dated 19 June 2019, paragraph 148.
229 Statement of Denise Solly dated 19 June 2019, paragraph 162.
230 Statement of Denise Solly dated 19 June 2019, paragraph 163.
231 Statement of Denise Solly dated 19 June 2019, paragraph 166.
232 Statement of Denise Solly dated 19 June 2019, paragraph 167.
233 Statement of Denise Solly dated 19 June 2019, paragraph 174.
234 Statement of Denise Solly dated 19 June 2019, paragraph 179.
235 Statement of Denise Solly dated 19 June 2019, paragraphs 182-185.
236 Statement of Denise Solly dated 19 June 2019, paragraphs 186-187.
237 Statement of Denise Solly dated 19 June 2019, paragraphs 189-190.
238 Statement of Denise Solly dated 19 June 2019, paragraph 201-202.
239 Statement of Denise Solly dated 19 June 2019, paragraphs 221-222.
240 Statement of Denise Solly dated 19 June 2019, paragraphs 223-225.
241 Statement of Denise Solly dated 19 June 2019, paragraphs 232-234.
242 Transcript of proceedings dated 13 August 2019.
243 Statement of Troy Irwin dated 17 June 2019, paragraph 39.
244 Statement of Troy Irwin dated 17 June 2019, paragraph 140.1
245 Statement of Troy Irwin dated 17 June 2019, paragraph 181.
246 Statement of Troy Irwin dated 17 June 2019, paragraph 184.
247 Statement of Troy Irwin dated 17 June 2019, paragraph 200.
248 Statement of Troy Irwin dated 17 June 2019, paragraph 200.
249 Statement of Troy Irwin dated 17 June 2019, paragraph 207.
250 Statement of Troy Irwin dated 17 June 2019, paragraph 213.
251 Statement of Troy Irwin dated 17 June 2019, paragraph 227.
252 Statement of Troy Irwin dated 17 June 2019, paragraph 236.
253 Statement of Troy Irwin dated 17 June 2019, paragraph 256.
254 Statement of Troy Irwin dated 17 June 2019, paragraphs 268, 270.
255 Statement of Troy Irwin dated 17 June 2019, paragraph 285.
256 Statement of Troy Irwin dated 17 June 2019, paragraph 290.
257 Statement of Troy Irwin dated 17 June 2019, paragraph 300.
258 Re Specialist Diagnostic Services Pty Limited Workplace Determination [2018] FWCFB 5778 at [74] per Hatcher VP, Clancy DP, Cirkovic C; see also Essential Energy Workplace Determination [2016] FWCFB 7641 at [44]-[57] per Hatcher VP, Sams DP, Spencer C).
259 Parks Victoria v The Australian Workers' Union and others[2013] FWCFB 950 at [49]-[50]; O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Randall v Australian Taxation Office (2010) 198 IR 114 at [11].
260 Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [23]; See also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd[2015] FWCFB 540 at [129]-[131].
261 Re Specialist Diagnostic Services Pty Limited Workplace Determination[2018] FWCFB 5778 at [77] per Hatcher VP, Clancy DP, Cirkovic C).
262 [2012] FWAFB 7858.
263 Re Commonwealth of Australia[2019] FWCFB 143 at [28] (per Catanzariti VP, Kovacic DP, Johns C).
264 Essential Energy Workplace Determination [2016] FWCFB 7641 at [71]-[73] (per Hatcher VP, Sams DP, Spencer C).
265 See XPT case.
266 BPWD clause 11.
267 BPWD clause 29.
268 BPWD clause 31.
269 Statement of Robert Bimrose dated 6 May 2019, paragraph 55, PN2220.
270 Statement of Robert Bimrose dated 22 July 2019, paragraph 37. Transcript of proceedings dated 6 August, PN1155.
271 AWU submissions dated 3 September 2019 [167].
272 AWU submissions dated 3 September 2019 [168].
273 BPWD clause 11(c).
274 AWUWD clause 11.2.
275 Tomato Exchange Pty Ltd as trustee for the Tomato Exchange Unit Trust T/A Tomato Exchange Pty Ltd [2017] FWC 1170 at [5].
276 See paragraph [95] of this decision.
277 BP’s ‘Retrenchment Policy’ effective 1 April 2018.
278 BP’s submissions dated 3 September 2019 [493].
279 The AWU refer to the Statement of Troy Irwin dated 17 June 2019, paragraph 192 which states that his personal leave is currently accrued at 80 hours per year of employment.
280 BP submissions dated 3 September 2019 [425].
281 BP submissions dated 3 September 2019 [619].
282 AWU submissions dated 3 September 2019 [225].
283 AWU submissions dated 3 September 2019 [226].
284 AWU submissions dated 3 September 2019 [227].
285 2014 Agreement clause 67.
286 2014 Agreement clause 68.
287 AWU submissions dated 3 September 2019 [ 27]; Statement of Troy Irwin dated 17 June 2019, exhibit 34 paragraph 199.
288 BP submissions dated 3 September [134].
289 BP submissions dated 3 September 2019 [100].
290 AWU submissions date 3 September 2019 [151].
291 AWU submissions date 3 September 2019 [152].
292 BP submissions dated 3 September 2019 [360].
293 BP submissions dated 3 September 2019 [360].
294 BP submissions dated 3 September 2019 [361].
295 AWU submissions dated 3 September 2019 [146].
296 AWU submissions dated 3 September 2019 [151].
297 BPWD clause 26(c).
298 BPWD clauses 26(d), 26(e).
299 BPWD clause 26(g).
300 BPWD clause 26(i).
301 BPWD clause 26(j).
302 BP submissions dated 3 September 2019 [363].
303 BP submissions dated 3 September 2019 [363].
304 BP submissions dated 3 September 2019 [363].
305 BP submissions dated 3 September 2019 [363].
306 BP submissions dated 3 September 2019 [363].
307 BP submissions dated 3 September 2019 [364].
308 AWUWD clause 9.2.
309 BP submissions dated 3 September 2019 [370].
310 BP submissions dated 29 October 2019 [79].
311 BP submissions dated 3 September 2019 [304] - [305].
312 AWU submissions dated 3 September 2019 [26].
313 BP submissions dated 29 October 2019 [23].
314 BPWD clause 8.6(g).
315 BPWD clause 8.6(h).
316 BP WD clause 8.6(j).
317 BP submissions dated 3 September 2019 [320].
318 BP submissions dated 3 September 2019 [322].
319 AWU submissions dated 3 September 2019 [52].
320 AWU submissions dated 3 September 2019 [54], [85].
321 AWU submissions dated 3 September 2019 [55].
322 AWU submissions dated 3 September 2019 [86].
323 AWU submissions dated 3 September 2019 [83].
324 AWU submissions dated 3 September 2019 [84].
325 AWU submissions dated 3 September 2019 [85].
326 BP submissions dated 29 October 2019 [57].
327 BPWD clause 8.7(a).
328 BPWD clause 8.7(b).
329 BPWD clause 8.7(c)
330 BPWD clause 8.7(d).
331 BP submissions dated 3 September 2019 [327].
332 BP submissions dated 3 September 2019 [330], [332].
333 AWU submissions dated 3 September 2019 [57].
334 BP submissions dated 29 October 2019 [57].
335 AWUWD clause 8.6.
336 BPWD clause 8.6(f).
337 See paragraph [88] of this decision.
338 BP submissions dated 3 September 2019 [172].
339 BP submissions dated 3 September 2019 [173].
340 BP submissions dated 3 September 2019 [174].
341 BP submissions dated 3 September 2019 [179].
342 BP submissions dated 3 September 2019 [180].
343 BP submissions dated 3 September 2019 [166].
344 BP submissions dated 3 September 2019 [154].
345 BPWD clause 8.8.1(b).
346 BPWD clause 8.8.1(d).
347 BPWD clause 8.8.2(b).
348 AWU submissions dated 3 September 2019 [132].
349 AWU submissions dated 3 September 2019 [136].
350 AWU submissions dated 3 September 2019 [133].
351 AWU submissions dated 3 September 2019 [134].
352 AWU submissions dated 3 September 2019 [139].
353 BP submissions dated 29 October 2019 [70].
354 BP submissions dated 29 October 2019 [71].
355 BP submissions dated 29 October 2019 [72].
356 AWUWD clause 10.2.4(g).
357 AWU submissions dated 3 September 2019 [137].
358 AWUWD clauses 10.2.4(h), 10.2.5(f).
359 AWU submissions dated 3 September 2019 [163].
360 BP submissions dated 3 September 2019 [350].
361 BP submissions dated 29 October 2019 [83(a)].
362 BP submissions dated 29 October 2019 [83(c)].
363 BP submissions dated 3 September 2019 [351].
364 AWUWD clause 10.2.6.
365 AWUWD clause 8.3(c).
366 AWU submissions dated 3 October 2019 [20].
367 AWU submissions dated 3 October 2019 [21].
368 BP submissions dated 29 October 2019 [19].
369 BP submissions dated 29 October 2019 [20].
370 BP submissions dated 3 September 2019 [604].
371 BP submissions dated 3 September 2019 [504].
372 AWU submissions dated 3 September 2019 [272], [281].
373 BP submissions dated 3 September 2019 [525].
374 AWU submissions dated 3 September 2019 [272].
375 AWU submissions dated 3 September 2019 [277].
376 BPWD clauses 27.3 and 30.3.
377 BPWD clauses 27.3 and 30.3.
378 BP submissions dated 3 September 2019 [537].
379 AWUWD clause 28(a).
380 AWUWD clause 28(b)(III).
381 BP submissions dated 3 September 2019 [538].
382 BP submissions dated 3 September 2019 [509].
383 BP submissions dated 3 September 2019 [510].
384 BP submissions dated 3 September 2019 [511].
385 BP submissions dated 3 September 2019 [512].
386 BP submissions dated 3 September 2019 [512].
387 BP submissions dated 3 September 2019 [518].
388 BP submissions dated 3 September 2019 [517].
389 BP submissions dated 3 September 2019 [521].
390 AWU submissions dated 3 September 2019 [269].
391 AWU submissions dated 3 September 2019 [270].
392 AWU submissions dated 3 September 2019 [271].
393 AWU submissions dated 3 September 2019 [281].
394 AWU submissions dated 3 September 2019 [282].
395 AWU submissions dated 3 September 2019 [284].
396 BP submissions dated 29 October 2019 [126].
397 BP submissions dated 29 October 2019 [127].
398 2014 Agreement clause 58.1.
399 2014 Agreement clause 58.2.
400 AWU submissions dated 3 September 2019 [247].
401 AWU submissions dated 3 September 2019 [250].
402 AWU submissions dated 3 September 2019 [253].
403 AWU submissions dated 3 September 2019 [254].
404 AWU submissions dated 3 September 2019 [255].
405 AWU submissions dated 3 September 2019 [257].
406 BP submissions dated 3 September 2019 [531].
407 BP submissions dated 3 September 2019 [531].
408 BP submissions dated 3 September 2019 [531].
409 BP submissions dated 3 September 2019 [531].
410 BP submissions dated 3 September 2019 [531].
411 BP submissions dated 3 September 2019 [533].
412 BP submissions dated 3 September 2019 [534].
413 BP submissions dated 3 September 2019 [635].
414 BP submissions dated 3 September 2019 [635].
415 BP submissions dated 3 September 2019 [635].
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