Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
[2022] FWC 2683
•5 OCTOBER 2022
| [2022] FWC 2683 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
v
Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
(B2022/1502)
AND
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Unions” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
(B2022/1503)
| Deputy President Clancy | MELBOURNE, 5 OCTOBER 2022 |
Proposed protected action ballot of employees – application granted – application for extension of required notice for employee claim action rejected
At 3.15pm and 3.21pm respectively on Monday 3 October 2022, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (collectively “the Unions”) both applied under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO).[1] It was convenient to deal with the applications together.
In their applications, the Unions sought orders that employees[2] of Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium (Portland Aluminium) who are represented by them and who will be covered by the proposed agreement be balloted to see if they supported the taking of protected industrial action.
It is not disputed and based on the material before me, I am satisfied that:
1. The Unions are bargaining representative for the employees;[3]
2. Both applications specify the group of employees to be balloted and the questions to be put to the employees;[4]
3. A copy of the applications was given to Portland Aluminium and the AEC within 24 hours of the making of both application;[5]
4. The applications have not been made earlier than 30 days before the nominal expiry date of the applicable Portland Aluminium (Trades) Agreement 2021 (AE511161);[6] and
5. The Unions are genuinely trying to reach agreement with Portland Aluminium.[7]
On Tuesday 4 October 2022, my Associate was advised by email that while Portland Aluminium did not oppose the making of a protected action ballot order, it sought an extended notice period of intended industrial action from 3 working days to 7 working days (in accordance with s.443(5) of the Act) with respect to where protected industrial action was to be in the form of action identified in question 3 of the draft orders. This question, number (3) of five, reads: “An unlimited number of stoppages of work for a duration of 12 hours?” In particular, Portland Aluminium’s email correspondence dated 4 October 2022 included the following:
“…stoppages of 12 hours (Section 2.3 of the application - Question 3) could have significant impact on safety and environmental outcomes as well as the overall stability of the plant. To provide additional context, stoppages for 12 hours will directly impact on the ability to respond to unplanned equipment failures which could lead to environmental or safety incidences as such we request additional notice to effectively plan and minimise environmental, health & safety risks. Having regard to this, we request it be considered that an extended notice period of 7 days’ working days be applied in relation to stoppages of 12 hours”.
The Unions responded and advised they did not consent to an extended notice period for 12-hour stoppages. The dispute is therefore whether the Commission should exercise its discretion under s.443(5) of the Act to extend the written notice referred to in s.414(2)(a) from 3 working days to the 7 working days sought by Portland Aluminium. This being the case, the matter was listed for a mention before me at 2.30pm on Tuesday 4 October 2022 at which time, both parties confirmed their respective position and I made directions for the filing of material ahead of a hearing at 2.30pm on Wednesday 5 October 2022.
Evidence of Dion Gallagher
Mr Dion Gallagher is the Maintenance, Reliability & Capital Program Manager for Portland Aluminium. He is responsible for overall responsibility for planned and unplanned mechanical and electrical maintenance and for capital projects undertaken at the Portland Aluminium Smelter (the Smelter) in support of the production of aluminium.
Mr Gallagher outlined that the production of aluminium at the Smelter takes place in the potroom, involves the use of industrial processes to convert alumina into aluminium and involves the operation of a carbon baking furnace to produce anodes used in the aluminium production process, which is a continuous process operating 24/7.
Mr Gallagher’s evidence included the following summary of the aluminium production process:
a)approximately 350 pots, which are large crucible like objects, are used to contain the molten aluminium smelting process;
b)electricity is passed through the pots to generate heat which maintains the aluminium’s molten state of the aluminium;
c)alumina is dossed into the pots through feeders and then converted into aluminium, which pools at the bottom of the pot; and
d)approximately every 36 hours, 3.6 tonnes of molten aluminium is removed from each pot and sent to the casthouse for casting into aluminium ingots which are then shipped to customers for manufacturing processes.
Mr Gallagher said the Smelter’s process must be maintained on an ongoing basis and that chemical processes undertaken as part of smelting operations can become unstable very quickly, even in a period of one hour. He detailed that in the event of a loss of power, the pots in service cool. This is known as a freeze event and if power is unable to be restored in a timely manner, each individual pot needs to be removed from service and rebuilt before returning to service, which is both costly and time-consuming.
Mr Gallagher stated, on the basis of his experience, that if there was a total power failure and the 350 pots in service went cold, it would take Portland Aluminium at least 12 months to restart the aluminium production process at a cost approximately $70 million dollars (not including the loss of revenue due to production ceasing).
Mr Gallagher detailed that the aluminium production process is supported by the following (stated in approximate numbers) Portland Aluminium employees:
· 350 production employees;
· 30 mechanical trades employees;
· 30 electrical trades employees; and
· 90 administration, management and other personnel.
The mechanical and electrical trades employees are responsible for undertaking work associated with planned and unplanned maintenance at the Smelter to support and maintain continuous production of aluminium. Their work is largely undertaken pursuant to a 38-hour week, Monday to Friday roster. Employees working these hours are known as Day Work Employees and they typically undertake planned maintenance, with only some involvement in unplanned maintenance work from time to time.
Mr Gallagher also described there being a group amongst the mechanical and electrical trades employees who work on a 12 hour, 4 panel shift roster designed to ensure that there are 2 mechanical trades and 2 electrical trades employees on site 24/7. These employees are known as Shift Employees and are primarily responsible for undertaking unplanned maintenance activities to support the production process and ensure that interruptions to the production process do not result in safety and/or environmental hazards.
The Shift Employees are to provide a first response to any unplanned breakdown events which require urgent maintenance activity. Mr Gallagher said the Shift Employees are generally skilled and experienced mechanical/electrical trades employees with the knowledge to find faults and undertake required maintenance so as to ensure the continuity of the aluminium production process. He said the tasks to be performed by them are often time critical.
Mr Gallagher stated that a loss of power to all or part of a smelter is a very serious risk that it bears. He said that power interruptions can be caused by external or internal equipment failures or human error. He added that while external power supply issues are not responded to by Portland Aluminium’s mechanical and electrical trades employees, their presence on site when power is restored is critical to the safe restart of equipment. Mr Gallagher said that power interruptions caused by the failure of on-site equipment have also occurred.
Mr Gallagher said that delayed responses to power failures can result in serious safety and environmental risks and the loss of smelting pots, due to them going cold. He claimed that a loss of power to all or part of the Smelter has the potential to impact the safety of employees. He gave the example of power being lost whilst personnel were operating heavy cabin controlled gantry cranes and said that in such circumstances, the gantry cranes would be unable to move and it would cause the employees situated in those cranes to become stuck, including over the carbon baking furnaces or potlines. This then would necessitate an urgent need to restore power or undertake rescue activities to remove those persons from the gantry cranes and both the person in the gantry crane and the persons involved in any rescue would thereby be exposed to risk of injury.
Mr Gallagher also described scrubbing systems used at the Smelter to remove Hydrogen Flouride gas and Anode combustion related pollutants. He said that if the Hydrogen Flouride scrubbers cease to operate due to a mechanical or electrical breakdown, an interruption to the fresh alumina feed to the scrubber system can, after 16 hours lead to loss of Hydrogen Flouride scrubbing and a risk of Hydrogen Flouride gas emissions from the Smelter. The risks associated with such emissions, which have materialised twice in the past two years, were said to include:
· the exposure of local flora and fauna to elevated Hydrogen Flouride gas emissions;
· potential penalties for failing to meet environmental licencing requirements; and
· reputational damage sustained as a result of the emissions and the need to report such emissions to the EPA.
Mr Gallagher also said that a mechanical or electrical failure on the carbon bakes scrubber, which continuously scrubs combustion gasses from the carbon bakes furnace, can lead to the scrubber bypassing the pollution control processes. He outlined that this would result in an uncontrolled release of combustion related by-products to the atmosphere and carries a risk of:
· potential penalties for failing to meet environmental protection requirements; and
· reputational damage sustained as a result of emission, the need to report such emissions to the EPA and community concerns arising from a release of such material, which creates a thick black plume of smoke.
Mr Gallagher considers there are exceptional circumstances that would justify an extended notice period of 7 working days in the event that mechanical and electrical trades employees take industrial action for a period of 12 hours, having regard to the risks associated with the interruption to the supply of power or breakdown of critical equipment at the Smelter, which occurs from time to time.
Mr Gallagher said that during periods where employees take industrial action, Portland Aluminium will, where possible, utilise staff personnel to support operations and facilitate the required continuation of the aluminium production process. He however added that the staff personnel who will support operations, whilst qualified tradespeople, have only limited recent experience performing the work undertaken by mechanical and electrical trades personnel. Mr Gallagher apprehends that they will take longer to fault find and undertake maintenance to respond to critical unplanned breakdowns as a result.
Mr Gallagher added that the staff personnel currently undertake day work and in order to provide the required support, some would need to be able to undertake shift work as required to support Portland Aluminium’s response to critical unplanned breakdowns and other maintenance activities that would otherwise be addressed by the Shift Employees. He expressed concern that if there was only 3 days’ notice provided to such staff employees, there is a risk that they will not be properly prepared to undertake shift work. Mr Gallagher asserted that this would place their safety, and the safety of others working around them at risk because they may not be able to ensure that they are physically prepared to work shift work within 3 working days. He claimed the combination of insufficient preparation and limited recent experience in responding to critical unplanned breakdowns is likely to result in exposure to fatigue related risks that would not otherwise be present if they had sufficient time to prepare.
Mr Gallagher said the rostering of staff personnel will be critical to enable an appropriate response to any unplanned critical breakdown. He argued that given the limited number of staff personnel and the limited experience held by them, it would take time for Portland Aluminium to re-roster work schedules to ensure coverage sufficient to enable a response to critical, unplanned breakdowns to be made and the continuity of critical systems to be maintained, thereby avoiding the safety, environmental and business risks he has identified.
Under cross-examination, Mr Gallagher acknowledged that Portland Aluminium has a contract with Keppel Prince, a maintenance contractor through which Keppel Prince supplies mechanical and electrical maintenance workers to the Smelter. While Mr Gallagher said that the Keppel Prince workers were predominantly engaged Monday-Friday on a 36-hour week basis, he acknowledged they had also been engaged for work outside normal working hours in recent months, including on night shift. Mr Gallagher conceded that there was the skillset amongst Keppel Prince workers to perform unplanned maintenance work and, for example, that they had capability to perform work to respond to a power outage.
Mr Gallagher’s concern when it came to the Keppel Prince contract and workforce was that there is no contractual obligation for Keppel Prince workers to be available for work outside of the 36-hour working week. He said that he cannot assume their availability and if required to backfill for unplanned maintenance work, he would turn firstly to staff personnel and then to any available Keppel Prince resources. In the event of unplanned work arising during protected industrial action, Mr Gallagher said he would have a conversation with Keppel Prince but would not be able to rely on them solely in order to be able to respond. Ultimately, Mr Gallagher stated that the difference between 3 working days’ notice and 7 working days’ notice when it came to Keppel Prince was that more notice was likely to produce a better outcome.
Portland Aluminium’s submissions
Portland Aluminium submits that the Commission can be satisfied there are exceptional circumstances relating to the potential for a loss of power to part or all of the Smelter operations or other critical equipment breakdown and the impact that would have on the Smelter’s operations, its employees and the broader community in Portland. It says the impact of a loss of power or other critical equipment breakdown and a negatively impacted capacity to respond to that situation could reasonably have significant impact on Portland Aluminium and personnel working on site, as follows:
a)If there was the cooling of pots in the event of a total power failure and this was not able to be rectified in a timely manner, resulting in the 350 pots in service going cold, it would require Portland Aluminium to restart the aluminium production process which would take at least 12 months and cost approximately $70 million dollars (which does not include the loss of revenue due to aluminium production ceasing);
b)Health and safety implications for employees, who may become stranded in cabin operated gantry cranes they have been operating from locations above the potlines or the carbon baking furnace (and require rescue from those locations) and/or be exposed to gasses produced as a by-product of the aluminium smelting and anode production processes, in the event that scrubbing systems cease to operate; and
c)Environmental implications arising from a loss of Hydrogen Flouride scrubbing and a risk of Hydrogen Flouride gas emissions and/or an uncontrolled release of combustion gasses from the carbon baking furnace, which carry a risk of:
· · exposure of local flora and fauna to elevated toxic Hydrogen Flouride gas emissions;
· · potential penalties for Portland Aluminium for failing to meet environmental licencing requirements; and
· · reputational damage to Portland Aluminium.
Portland Aluminium argues that such circumstances can be appropriately characterised as being out of the ordinary course, unusual or special when regard is had to the nature of the risks that concern Portland Aluminium. It submits these risks are not of the same magnitude as risks that an employer would usually face in the event of employees taking protected industrial action. Further, Portland Aluminium says an incapacity to properly prepare to mitigate those risks (by allowing a longer notice period that facilitates the appropriate rostering of staff personnel with adequate preparation) amplifies the potential for such risks to manifest in the event of a loss of power or other critical equipment breakdown.
Portland Aluminium submits that the exceptional circumstances which exist would justify a longer notice period than the default notice period contemplated by s.414(2) of the Act. It argues is open to conclude that there is good reason, and it would be reasonable, for the Commission to require 7 working days’ notice of an intention to take protected industrial action in the form of a 12-hour stoppage, given:
a) the potential for a loss of power to Portland Aluminium’s operations or other critical equipment breakdown;
b) the potential manifestation of the risks of concern to Portland Aluminium (related to the potential loss of pots, implications for the safety of personnel working on site and the potential environmental impacts); and
c) the existence of an opportunity to facilitate Portland Aluminium having an improved capability to respond to critical unplanned breakdowns,
Portland Aluminium further submits that 7 working days’ notice is appropriate having regard to the need to organise the limited number of staff personnel available who hold the requisite skills to enable an appropriate response to any unplanned critical breakdown and the need for them to properly prepare for the performance of shift work as required.
Portland Aluminium acknowledged that the right to take industrial action with the provision of 3 working days’ notice should not be lightly curtailed but observes that:
a)It is requesting that such longer notice period only apply in respect of the proposed 12-hour stoppages, which represent the greatest risk to Portland Aluminium and carry significantly more risk than the other forms of proposed industrial action (including the proposed 1 and 4 hour stoppages); and
b)Given the potential impacts of a critical unplanned breakdown, the imposition of an extended notice period is justified.
Portland Aluminium argues its proposal is not directed at having a greater opportunity to take defensive action to negate the bargaining power of the Applicants and their members, but is instead directed at facilitating action that will be taken in any event to allow Portland Aluminium to, as effectively as possible, mitigate against the potential for serious consequences, in the event that its operations suffer a loss of power or other critical equipment breakdown.
Portland Aluminium submits that, when regard is had for the exceptional circumstances that exist and the justification for a longer period of notice, the Commission ought conclude that it is appropriate to exercise discretion to require that the Protected Action Ballot Orders to be issued by the Commission provide for 7 working days’ notice of an intention to take protected industrial action in the form of a 12 hour stoppage.
Union Submissions
The Unions submit that Portland Aluminium’s summary of the work conducted at the relevant worksite evidences the significant, dangerous and highly-skilled nature of the work conducted by the members of the Unions but does little more than establish that the members perform important work and are entitled to engage in bargaining to negotiate their pay and conditions accordingly, including by way of protected industrial action.
They contend the Portland Aluminium submission that the ‘majority of maintenance work performed by mechanical and electrical trades employees is planned maintenance’ negates its reasons said to justify an extension of the notice period, in that, Portland Aluminium should be well-placed to ascertain any effect of protected industrial action proposed to be taken, on three days’ notice. The Unions argue that to the extent that there might be circumstances which require unplanned work, there is no evidence to show that that need would arise, nor is there any evidence to say that Portland Aluminium would be unable to attend to that need in the same way it would do in the ordinary course of business. They contend Portland Aluminium will be in a position to take ameliorative steps from on the three days’ notice provided of industrial action to be undertaken.
The Unions further argue that Portland Aluminium seeks to divide the employees who would be covered by any proposed enterprise agreement in order to suggest that the work performed by one group of employees somehow negates or diminishes the rights of all employees to take protected industrial action in accordance with the Act. They assert that to the extent that a risk of a loss of power might pose a ‘very serious risk’ for Portland Aluminium, this does not go to any industrial action to be taken by employees represented by the AMWU and to the extent that it relates to the members of the ETU, it does not evidence exceptional circumstances sufficient to justify the exercise of the discretion.
The Union submit that the requirements of s.443(1) of the Act are satisfied and the Commission should make the PABO in the terms sought.
Consideration
The only disputed issue in this application for a protected action ballot order concerns the notice requirement for engagement in the proposed employee claim action outlined in question 3 of the draft order (“An unlimited number of stoppages of work for a duration of 12 hours?”). Section 443(5) of the Act grants me a discretionary power to specify a longer period of notice than the 3 working days referred to in s.414(2)(a) if I am satisfied that there are exceptional circumstances justifying this.
The principles to be applied in relation to an extension of the notice period were outlined in decision of the Full Bench in National Tertiary Education Industry Unions v Charles Darwin University.[8] In particular, the Full Bench outlined the following:
· the right to otherwise give three working days’ written notice of industrial action “should not lightly be curtailed” by the imposition of a longer period of notice;[9]
· the meaning to be given to the expression “exceptional circumstances justifying” in s.443(5) is that which was discussed in the following terms in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions of Australia v Australian Postal Corporation:
“[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[10]
· The determination of whether the circumstances in a particular case are “exceptional” involves an evaluative judgement.[11]
· A member of the Commission must first identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances, with the phrase “exceptional circumstances” carrying its ordinary meaning.[12]
· There must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.[13]
· If the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances.[14]
These principles were endorsed by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd t/a DP World and Others,[15] and on appeal in that proceeding, the Full Court of the Federal Court said the following in relation to National Tertiary Education Industry Union v Charles Darwin University:
“The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a), being longer than 3 working days, the protected action ballot order may specify a longer period.”[16]
The exceptional circumstances said by Portland Aluminium to exist are the impact that a loss of power or a critical equipment breakdown could have on the Smelter, its employees and the broader community in Portland. The impact of such events could potentially be significant, covering the potential loss of pots and consequent impact on the production process, the safety of personnel working on site and potential environmental impacts. Having regard to the evidence before me, I am satisfied that the circumstances in relation to the proposed industrial action in the form of 12-hour stoppages are out of the ordinary course, unusual, special and uncommon. I am not however satisfied that the exceptional circumstances justify an extension of the 3 working days’ notice referred to in s.414(2)(a) of the Act for reasons I outline below.
The evidence before me indicates that the area of concern for Portland Aluminium is its capacity to respond to a critical unplanned maintenance event/breakdown or a loss of power in the context of notice of intention to take protected industrial action in the form of a 12-hour stoppage. It is evident that Portland Aluminium Day Work Employees are only involved in unplanned maintenance work from time to time, while Shift Employees are primarily responsible for undertaking unplanned maintenance activities and ensuring that interruptions to the production process do not result in safety and/or environmental hazards.
I am also satisfied that through its contract with Keppel Prince:
· Portland Aluminium has access to mechanical and electrical maintenance workers;
· Keppel Prince routinely supplies such workers for Day Work; and
· Keppel Prince has also recently supplied labour for work outside normal hours.
Further, it is also evident that there are qualified tradespeople amongst Portland Aluminium staff personnel who could be mobilised into roles to support the Smelter operations during periods of protected industrial action. Portland Aluminium suggested this was the case even if it did suggest that the recent experience of these individuals performing work undertaken by mechanical and electrical trades personnel is limited, that this may impact on the timeliness of their work and that some would be required to transition from Day Work to Shift Work.
Having regard to this evidence, I am not satisfied that a period of notice longer than the 3 working days referred to in s.414(2)(a) is justified. Firstly, Portland Aluminium has the capacity to utilise workers from Keppel Prince. While I am prepared to accept the contract between Portland Aluminium and Keppel Prince does not “guarantee” out of hours labour, the evidence suggests this has been supplied in recent months and there is no reason why there cannot be dialogue started now about the possible future supply of labour in the event of notification of 12-hour stoppages. If the PABO is made, it will still be some time before the ballot is conducted by the Australian Electoral Commission, the results declared and notice of industrial action given. Significantly, Mr Gallagher did not rule out the possibility of making arrangements with Keppel Prince. Rather, he said that more notice than 3 working days was “likely” to produce a “better” outcome for Portland Aluminium.
Secondly, I consider there is also the opportunity for Portland Aluminium to utilise staff personnel and make arrangements for there to be sufficient cover for Shift work. I accept that a transition from Day work to Shift work will require adjustment for the individuals concerned but consider there will be sufficient time to make plans in this regard ahead of any notification and then specific arrangements once notification has occurred. I accept that re-rostering staff personal will not be without logistical considerations and that they will not be working in their usual roles, however Mr Gallagher’s evidence was not that staff personnel could not be re-rostered in the event of notification of industrial action or make a contribution towards providing cover.
Conclusion
For the reasons set out above, I am satisfied that the Unions have satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected ballot action order in respect of both applications. However, as outlined above, my evaluative judgement is that the exceptional circumstances do not show or prove that it is reasonable or necessary or that the circumstances warrant or provide good reason to require a longer period of written notice than 3 working days such that I should exercise the discretion conferred by s.443(5) of the Act. The Orders in respect of both applications will be issued separately to this decision.
DEPUTY PRESIDENT
Appearances:
T Knight for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
R Wainwright for the Australian Manufacturing Workers’ Union
M Vallence for Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
Hearing details:
2022.
By Video via Microsoft Teams:
October 5.
<PR746530>
[1] See s.437 of the Fair Work Act 2009.
[2] With the exception of those who are bound by individual agreement-based transitional instruments that have not passed their nominal expiry dates on the day the ballot order is made, unless such employees have made a conditional termination of those instruments.
[3] Fair Work Act (2009), s.437(1).
[4] Ibid, s.437(3).
[5] Ibid, s.440.
[6] Ibid, s.438(1).
[7] Ibid, s.443(1)(b).
[8] 2018] FWCFB 4011.
[9] Ibid at [20].
[10] 2018] FWCFB 4011 at [21].
[11] Ibid at [23].
[12] Ibid.
[13] Ibid at [24].
[14] Ibid at [25].
[15] [2019] FWCFB 1150 at [13]-[15].
[16] [2019] FCAFC 99 at [16].
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