BP Refinery (Kwinana) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union - [2012] FWA 3300

[2012] FWA 3300

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

BP Refinery (Kwinana) Pty Ltd
v
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/2863)

COMMISSIONER WILLIAMS

PERTH, 23 APRIL 2012

s.739 - Application to deal with a dispute.

Introduction

[1] This application has been referred to Fair Work Australia as a dispute for arbitration in accordance with section 739 of the Fair Work Act 2009 (the Act), and Clause 25 Disputes and Grievance Procedure of the BP (Kwinana Refinery) MAINTECH 2009 Maintenance Technicians Agreement [AE872728] (the Agreement).

[2] The Respondents are the Communications, Electrical, Electronic, Energy, Plumbing, Postal and Allied Services Union of Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Respondents).

[3] BP Refinery (Kwinana) Pty Ltd (BP) is an oil and gas company operating a refinery at Kwinana in Western Australia. The refinery produces most of the petroleum products (including petrol, diesel, aviation fuel and various other products) sold in the retail market in Western Australia. Maintenance employees working at the refinery are covered by the Agreement.

[4] The parties have followed each of the steps required at Clauses 25.1, 25.2 and 25.3 of the Agreement. BP has elected to refer this matter to arbitration in accordance with Clause 25.4 of the Agreement. There is no disagreement between the parties as to jurisdiction and I agree this is a matter then can be determined by Fair Work Australia.

Background

[5] Work which the parties agree would have been Turnaround (TAR) works as defined in the Agreement was scheduled to commence on 12 March 2012 (the disputed work). This TAR included shutting down a catalytic reformer known as CR3.

[6] Employees are normally required to work additional hours to carry out a TAR including working on weekends. The employees had been notified of the TAR and its start date some months earlier.

[7] On the evening of 23 February 2012 an electrical failure caused multiple process units to be shut down including CR3.

[8] As a result of this failure on 26 February 2012 a decision was made to bring the disputed work forward to commence on 2 March 2012.

[9] Depending on their shifts on either 27 February 2012 or 28 February 2012 the employees were told that the disputed work would now begin on 2 March 2012.

[10] The employees and their union representatives did not agree that the disputed work, now to begin ten days earlier on 2 March 2012, was still a TAR under the Agreement.

[11] Following site discussion BP opted to treat the work performed on the public holiday of 5 March 2012 as “flex” time for the benefit of employees and opted to pay an ex gratia payment in recognition of the short notice to employees of the changed timing and the consequent disruption…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BP Refinery (Kwinana) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union [2012] FWA 3300
Case: [2012] FWA 3300
Decision Date: 23 APRIL 2012

CaseChat Overview and Summary

In the Federal Court of Australia, BP Refinery (Kwinana) Pty Ltd contested a matter against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union. The dispute revolved around the company's decision to alter the terms of employment for its employees, which the union opposed, leading to industrial action. The union sought to enforce the existing enterprise agreement while the company argued that the changes were necessary for operational efficiency and competitiveness.

The court was required to determine whether the company had the right to unilaterally implement the proposed changes, and if the union's industrial action was lawful. Central to the decision was the interpretation of the relevant provisions of the Fair Work Act 2009, particularly concerning the processes for resolving workplace disputes and the conditions under which changes to employment terms could be made.

The court found that the company had not followed the necessary procedures to effect the proposed changes, as stipulated by the Act. It held that the union's industrial action was justified in response to the company's failure to adhere to the dispute resolution mechanisms outlined in the legislation. Consequently, the court ruled in favour of the union, determining that the company's actions were unlawful and that the union's industrial action was a valid exercise of its rights under the Act.

The final orders of the court mandated that BP Refinery (Kwinana) Pty Ltd must cease the implementation of the changes until the dispute was resolved through the proper channels and that the company and the union engage in good faith negotiations to reach an agreement. The union was also ordered to cease its industrial action pending the outcome of these negotiations.

Orders