Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alcoa of Australia Limited T/A CEPU World Alumina Australia
[2024] FWC 804
•28 MAY 2024
| [2024] FWC 804 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Alcoa of Australia Limited T/A CEPU World Alumina Australia
(C2023/7378)
| DEPUTY PRESIDENT BINET | PERTH, 28 MAY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has filed an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application sought that the FWC deal with a dispute between the CEPU and Alcoa of Australia Limited trading as Alcoa World Alumina Australia (ALCOA) in accordance with the dispute resolution procedure contained in Clause 19 of the Alcoa of Australia WA Operations, Electrical Trades Enterprise Agreement 2021 (Agreement).
The dispute concerns the requirements for witnessing of high voltage (HV) work performed by employees of Alcoa covered by the Agreement (Employees).
On 14 December 2023 the parties participated in a conciliation, but the issues in dispute could not be resolved.
Directions for the filing of materials in advance of a hearing were issued to the parties on 22 December 2023 and amended on 10 January 2024 (Directions). The Application was listed for hearing in person in Perth on 5 April 2024 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Alcoa sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to Alcoa to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, Mr James Fox (Mr Fox) a solicitor employed by the CEPU appeared on behalf of the CEPU. Mr Mark Vallence (Mr Vallence) a paid agent of Heelan and Co Industrial Relations and Management appeared on behalf of Alcoa.
Evidence
In advance of the Hearing the CEPU filed witness statements of the following witnesses setting out their evidence in chief:
a.Mr Laurie Cross (Mr Cross) – Mr Cross has been employed by Alcoa for 40 years. He is currently employed as a Senior Electrical Instrumentation Technician at the Wagerup Refinery. He has been involved in the bargaining of the Agreement and its predecessor agreements since 2005.[2]
b.Mr Micheal Giles-Duffy (Mr Giles-Duffy) – Mr Giles-Duffy is employed by Alcoa as a Senior Electrical Instrumentation Technician at the Pinjarra Refinery. He is a Level 2 HV Operator.[3]
c.Mr Mathew Luke Jauncey (Mr Jauncey) – Mr Jauncy is employed by Alcoa as a Senior Electrical Instrumentation Technician at the Wagerup Refinery. He is the CEPU convenor for the Wagerup Refinery and was involved in the negotiation of the Agreement.[4]..
d.Mr Peter Rozentals (Mr Rozentals) – Mr Rozentals worked at Alcoa primarily as an Electrical Instrumentation Technician from 1975 until 2023. In his witness statement Mr Rozentals provided details of various electrical incidents which had occurred in the past.[5]
e.Mr Tony Bell (Mr Bell) – Mr Bell is employed by Alcoa as a Senior Electrical Instrumentation Technician at the Pinjarra Refinery.[6]
f.Mr Tony Kasper (Mr Kasper) – Mr Kasper is employed by Alcoa as a Senior Electrical Instrument Technician at the Pinjarra Refinery. He is a Level 2 HV Operator.[7]
Mr Cross, Mr Giles-Duffy, Mr Jauncey, Mr Bell and Mr Kasper were cross examined by Mr Vallence. Mr Rozentals was not required by Alcoa for cross examination.
In advance of the Hearing Alcoa filed witness statements of the following witnesses setting out their evidence in chief:
- Mr Alex Forgie (Mr Forgie) – Mr Forgie is employed by Alcoa as Global Manager – Power and Combustion Systems. He is responsible for leading Alcoa’s global team of subject matter experts for electrical engineering.[8]
- Mr Anthony Alan Dodd (Mr Dodd) – Mr Dodd is employed by Alcoa as the Senior Electrical Compliance Engineer at Pinjarra Refinery. He is responsible for ensuring Alcoa complies with safety procedures and standards related to HV work. He is qualified as a Level 3 HV Operator. He doesn’t have an electrical licence and is not an electrician.[9]
Mr Dodd and Mr Forgie gave additional oral evidence in chief and were cross examined at the Hearing by Mr Fox.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as Exhibit DCB (DCB).
Written closing submissions were filed by the CEPU on 22 April 2024 and Alcoa on 29 April 2024.
In reaching my decision I have considered all the submissions made and the evidence tendered by the parties or given by the witnesses, even if not expressly referred to in these reasons for decision.
Background
Alcoa’s Western Australian operations involve the mining and refining of bauxite to facilitate the production of alumina, which is used in the manufacture of aluminium.[10]
The Western Australian mining and refining operations are comprised of: [11]
a. The Kwinana, Pinjarra and Wagerup alumina refineries (Refineries);
b. The Huntly and Willowdale mining operations; and
c. Bunbury Port.
The Western Australian refining operations utilise energy intensive processes for the production of alumina which are supported through complex electrical systems and the operation of power generation systems that are situated on site at each of the Refineries. [12]
The electrical systems of the Refineries are supported by approximately: [13]
a.194 electrical trades employees covered by the Agreement (Employees);
b.77 Power Station employees covered by the Alcoa of Australia Limited Kwinana, Pinjarra and Wagerup Power Stations Enterprise Agreement 2020; and
c.112 staff.
These personnel are variously responsible for the installation, monitoring, maintenance and repair of electrical systems which can involve work on low voltage systems but can also involve work on complex and/or high voltage systems. [14]
The performance of work on electrical systems poses a safety risk for the persons undertaking that work and an operational risk to the business as the loss of an electrical system can have significant impacts on the production of alumina and commercial outcomes for Alcoa.[15] Examples of the safety and operational risks which have arisen in the past are set out in the witness statements of the CEPU witnesses. None appear to be as a direct consequence of the failure of a Level 2 HV Operator adequately performing their duties as a witness to a Level 3 HV switching program.
The work performed by the Employees on the electrical systems of the Refineries includes HV switching. HV switching is work performed to isolate HV electrical systems through the use of established procedures and is an important aspect in mitigating risks to the safety of Alcoa employees working on or near those electrical systems.[16]
Alcoa has developed a global standard for HV work which details the minimum HV safety requirements that must be complied with throughout the whole of Alcoa’s global operations (32.60 Standard). The 32.60 Standard does not include a specific procedure on the performance of HV switching but provides for minimum standards that are to be applied within a locally developed HV procedure.[17]
Alcoa have developed a HV procedure for its Western Australian operations AESTDO62 High Voltage Safety and Operating Procedures (HV Procedure).[18] The HV Procedure is regularly reviewed and updated on an annual basis. The HV Procedure is intended to meet or exceed the 32.60 Standard and Alcoa’s legislative obligations under the Work Health and Safety Act 2020 (WA) (WHS Act) and Work Health and Safety (Mines) Regulations 2022 (WA) (WHS Regulations).[19]
The 32.60 Standard requires the location manager to appoint a 32.60 designee (32.60 Designee) to ensure that the HV Procedure continues to comply with the minimum requirements set out in the 32.60 Standard by providing independent advice on matters regarding HV safety and providing input when changes are proposed to be made to the HV Procedure.[20]
Mr Dodd is the current 32.60 Designee at Pinjarra Refinery and has held this position since 2020.[21]
Changes to the HV Procedure occur through the following process:[22]
a.Feedback from electrical tradespersons on proposed changes is provided to the Site Electrical Lead Team through Electrical Supervisors at each site;
b.Each month, the Site Electrical Lead Team will convene and discuss feedback that has been provided, which will be recorded on a change log to be provided to the Australian Electrical Lead Team;
c.The Australian Electrical Lead Team will then typically form a subcommittee which usually consists of 32.60 designees to review the provided information and, if accepted, prepare draft wording for changes to the HV Procedure;
d.The proposed changes, together with a ‘one-page lesson’ and/or a presentation, are provided to employees through the Electrical Superintendent, for their consideration and feedback; and
e.Subject to any feedback or comments provided by employees, the subcommittee then works towards finalising proposed changes and implementing the changes within the HV Procedure.
The HV Procedure, provides for 4 levels of HV switching authorisation with HV Operators being authorised to undertake HV switching according to their level of authorisation. Relevantly:[23]
a.A person authorised to undertake Level 2 HV switching is permitted to undertake work associated with switching operations and the preparation, checking, issue and cancelling of HV permits and sanctions for testing for specified equipment where there is a single point of isolation. An authorised Level 2 HV Operator is specifically not authorised to prepare, check, issue, temporarily cancel, re-issue, cancel or extend any HV permits for which there are multiple points of isolation.
b.A person authorised to undertake Level 2H HV switching is permitted to undertake work of a Level 2 HV Operator plus the HV switching necessary within a power plant to restore power after a power outage.
c.A person authorised to undertake Level 3 HV switching is permitted to carry out work required for switching operations and the issuing of HV permits on all plant HV apparatus up to and including where there are multiple sources of supply for equipment defined within their letter of authorisation at a particular location.
Level 2 and Level 3 HV switching is performed by Employees covered by the Agreement, supervisory staff, or electrical engineers.[24]
In summary, a Level 3 HV switching operation involves:[25]
a.Identification of HV equipment that will be inspected, installed, maintained, or repaired.
b.Allocation of that work to a Level 3 HV Operator.
c.Examination of the HV equipment and its condition by the nominated Level 3 HV Operator.
d.The preparation of a written Level 3 HV Switching Program by the nominated Level 3 HV Operator, taking into consideration the operational needs of the work area.
e.A review of the written Level 3 HV Switching Program by another nominated Level 3 HV Operator who undertakes the same process as the Level 3 HV Operator who initially wrote the Level 3 HV Switching Program.
f.Both Level 3 HV Operators signing the Level 3 HV Switching Program, once they are satisfied that the program is correct.
g.A Level 3 HV Operator undertaking the work associated with the Level 3 HV Switching Program in the presence of a designated witness.
h.The calculation of an arc flash boundary (which determines the area that would be affected in the event that the HV switch explodes) outside of which the designated witness must stand.
After completion of the Level 3 switching program the Level 3 HV operator performing the switching issuing a high voltage permit.
The HV Procedure has included terms related to the witnessing of HV switching work since version 1 of the HV Procedure was issued in 2001. The role of the witness, is to ensure that the HV Operator follows the steps outlined in the switching program.[26]
Initially the HV Procedure defined a witness as:
“A competent person responsible for observing the switching operations to verify the procedure is performed as detailed on a High Voltage Switching Program.”
Amendments to the HV Procedure were made in 2016 and 2018 to further define the minimum competency requirements for witnesses of HV switching and to remove ambiguity as to what constituted an acceptable level of competency.[27]
On 30 September 2016, the HV Procedure was modified at section 8.2 to add that:[28]
“A competent person shall immediately initial verification of each step, as it is completed.
Note: The minimum requirement for a competent person for any switching performed by a level high voltage operator shall be another level 1 high voltage operator.
The minimum requirement for a competent person for any switching performed by a level 2 (or higher) high voltage operator shall be a level 2 high voltage operator.”
The modification was made after it was identified that there was a lack of clarity regarding the competency of witnesses following an incident where a Trainee who did not hold authorisation as a HV Operator acted as a witness to a Level 3 HV Switching Program.[29]
The HV Procedure was updated in 2018 to specify that the witness for any HV switching performed by a Level 2, 2H or 3 HV Operator, must be a minimum of Level 2 HV Operator. [30]
“A competent person responsible for observing the switching operations to verify the procedure is performed as detailed on a High Voltage Switching Program.
·The witness for any switching performed by a level 1 high voltage operator shall, as a minimum, be another level 1 high voltage operator.
·The witness for any switching performed by a level 2, 2H or 3 high voltage operator shall, as a minimum, be a level 2 high voltage operator.”
Feedback was sought from Employees prior to the implementation of the 2018 amendments to the HV Procedure. The evidence is that Employees did not raise any concerns in relation to the amendments at that time.[31]
The role of the witness, is to ensure that the HV Operator follows the steps outlined in the switching program, this currently involves the following:[32]
a.The witness reading out the first step of the switching program.
b.The HV Operator, who is performing the switching, repeating the step back to the witness.
c.The witness confirming the HV Operator recited the step accurately.
d.The HV Operator performing that particular step.
e.The HV Operator confirming the step is completed.
f.The witness signing their initials to indicate that the step has been completed.
g.A repetition of the above until all the steps within the HV Switching Program have been completed.
8.7.1 of the HV Procedure provides that:
“High voltage operators shall NOT attempt to perform high voltage switching operations without a witness. Prior to performing a high voltage switching operation, the high voltage operator and witness shall use clear, “two-way” communication to:
•Confirm correct identification of equipment using applicable labels.
•Validate the status of relevant equipment using all available panel meters, pilot lights, visual observations etc.
•Account for all available information regarding circuit conditions to ensure no apparatus is operated if it is inappropriate for the duty to be performed.
•Ensure common expectations of how the status of relevant equipment will change subsequent to the switching operation.
•Establish appropriate actions necessary to manage personnel safety in accordance with the requirements of clause 8.7.2. [Personal Safety]
•Confirm it is appropriate to proceed.
During the performance of high voltage operations covered by a high
voltage switching program:•A high voltage operator shall NOT attempt to perform high voltage switching operations that are NOT associated with the current switching program.
•The witness shall immediately initial verification of each step, as it is completed.
•The time of operation shall be recorded against each step, as it is completed.
•After switching, correct operation of the apparatus shall be confirmed whenever possible.”
For safety reasons the witness must stand a distance outside the Arc Flash Boundary typically approximately 3m-8m away from the Level 3 HV Operator conducting the switching work.[33] Where appropriate a Safety Observer may also be in attendance. The Safety Observer must be trained in resuscitation and may be located within the Arc Flash Boundary.
Alcoa decided to include a Level 2 HV Operator as a competent person to witness a Level 3 HV Switching Program because Level 2 HV Operators hold HV Operator authorisation and have completed Alcoa’s internal training on HV operations allowing them to identify the different HV components listed in the Level 3 HV Switching Program.[34]
Witnesses to a Level 3 HV Switching Program are not required to prepare Level 3 HV Switching Programs, review or authorise Level 3 HV Switching Programs, check the switching performed by the Level 3 HV Operator to ensure they have completed the step correctly or participate in physically performing any switching to assist the Level 3 HV Operator. The witness is simply responsible for reading out each approved step to the Level 3 HV Operator and confirming that the Level 3 HV Operator has recited each step accurately. It is the responsibility of the Level 3 HV Operator to ensure that each step within the Level 3 HV switching program is correctly carried out.[35]
The HV switching work performed at the Refineries is regulated by the WHS Act and the WHS Regulations.[36]
The WHS Regulations at clause 6(1) of Schedule 26 provides that a HV Operator must be appointed for a mine that has high voltage installations or where high voltage electricity is used.[37]
Clause 6(2) of Schedule 26 of the WHS Regulations relevantly details that HV Operators have the following functions:[38]
a.Issuing permits to persons authorising them to work or operate any plant at the mine that is in close proximity to uninsulated high voltage conductors or components.
b.Ensuring that measures for the safe operation of the plant in close proximity to uninsulated high voltage conductors or components are:
(i)detailed on the high voltage vicinity permits to which they relate; and
(ii)are carried out.
c.Isolating high voltage equipment at the mine so that the equipment can be accessed, maintained or repaired, and re-energising the equipment.
The WHS Regulations, at clause 6(3) of Schedule 26 detail the eligibility criteria for appointment of a person as a HV Operator, which includes the site senior executive or exploration manager of the mine being satisfied that the person knows how to operate switchgear to isolate and re-energise high voltage equipment under subclause 6(2)(c).
Effective 31 March 2025, in order for a person to perform HV switching, they must also have completed a HV operator training course approved by the regulator under regulation 675ZZK(1)(d) of the WHS Regulations.[39]
There is no specific obligation within the WHS Act or the WHS Regulations that the performance of work by an appointed HV Operator be witnessed let alone witnessed by another HV Operator.[40]
Electrical work in Western Australia is also regulated by the Electricity Act 1945 (WA) (Electricity Act) and Western Australian Electricity (Licensing) Regulations 1991 (WA) (Electricity Regulations).[41] Pursuant the Electricity Regulations the WA government has issued various rules and guidelines such as the Western Australian Electrical Requirements and the Guidelines for the Safe Management of High Voltage Electrical Installations. Similarly, the Federal Government has issued materials dealing the HV electrical installations such as UETDRIS021.[42]
The parties did not identify any specific obligation within these documents that the performance of work by an appointed HV Operator be witnesses let alone witnessed by another HV Operator.
At the time the HV Procedure was last updated the Alcoa of Australia, WA Alumina and Bauxite Operations, CEPU Enterprise Agreement 2018 covered, and applied to Alcoa, the Employees and the CEPU (2018 Agreement).[43]
HV work was dealt with in Appendix B of the 2018 Agreement. Appendix B sets out a development and career path model for the Employees. Point 2 of Appendix B provided that Employees were required to obtain and maintain as a minimum HV Operator Level 2. The 2018 Agreement provided that appointment as a Level 3 HV Operator was voluntary but provided no additional payment for the obtainment of the necessary qualifications or the performance of the additional duties.[44]
“2. HV Isolation & tagging:
Perform High Voltage Isolations and Issue of High Voltage Permits as per individual's level of authority.
Minimum level 2 High Voltage switching to be obtained and maintained,·To Operate under Alcoa WAESTD062 High Voltage Safety and Operating Procedures (WAO)
·• An Appointed Person who is authorised to carry out switching operation and issuing of High Voltage Permits on Nominated Plant High Voltage apparatus.
.
Training will be provided to obtain higher levels and levels will be maintained at the trained level. Alcoa will ensure sufficient practical exposure is available to ensure competency is maintained.
Level 3 is voluntary as it has been in the past.”
In late 2021 during negotiations for the Agreement a HV Level 3 Operator allowance was introduced, providing an allowance equivalent to 2.4% of base salary for employees who volunteered to be appointed as a Level 3 HV Operator.[45]
Under the terms of the Agreement progression to Level 3 HV Operator remains voluntary. Employees wishing to progress to this level must nominate for appointment. Alcoa appoints Employees to this competency at its discretion. To achieve HV Operator Level 3 Employees are required to undertake additional training and maintain specified competencies set out in Clause 2 of Appendix B of the Agreement.[46]
“2. HV Isolation & tagging:
Perform High Voltage Isolations and Issue of High Voltage Permits as per individual’s level of authority.
Minimum level 2 High Voltage switching to be obtained and maintained,
·To Operate under Alcoa WAESTD062 High Voltage Safety and Operating Procedures (WAO)
·An Appointed Person who is authorised to carry out switching operation and issuing of High Voltage Permits on Nominated Plant High Voltage apparatus.
Training will be provided to obtain higher levels and levels will be maintained at the trained level. Alcoa will ensure sufficient practical exposure is available to ensure competency is maintained.
Level 3 remains voluntary as it has been in the past.
This is not a prerequisite for shift work.
Employees can nominate to undertake HV Level 3 Switching and successful candidates will be trained and required to maintain competence on an ongoing basis.
Competent HV Level 3 Operators will receive a letter of authorisation when they have met the minimum requirements and will be paid the HV Level 3 operator allowance [see Table in Clause 10.2] at that time. An authorised HV Level 3 Operator will provide a minimum of 6 month’s notice in writing to withdraw from providing this function.
The HV Level 3 Operator will be required to undertake activities including and not
limited to:
(a) Prepare switching programs (for a restricted area of the plant according to competency level);
(b) Perform risk assessments for switching programs (for a restricted type of switchgear and restricted area of the plant according to competency level);
(c) Prepare HV permits (Access permit, Sanction for Test and working on HV apparatus for a restricted area of the plant according to competency level);
(d) Check HV permits (Access permit and Sanction for Test for a restricted area of the plant according to competency level);
(e) Issue HV permits (Access permit and Sanction for Test for a restricted area of the plant according to competency level);
(f) Issue Vicinity permits for the whole site;
(g) Perform HV switching;
Restricted Appointed Areas include:
·Refinery substation transformers (Site specific)
· Refinery Substation HV switchboards (Site specific)
· Powerhouse generators (Site specific)
· Powerhouse transformers (Site specific)
· Cogen generators (Site specific)
· Cogen transformers (Site specific)
· Residue Substation Transformers (Site specific)
Note: areas to be defined as per authorised appointment letter”
The witnessing of Level 3 HV switching programs is not specifically listed in the duties of Level 3 HV Operators. The Agreement does not set out the duties of a Level 2 HV Operator in any detail.
The CEPU submits that a HV Operator acting as a witness to a Level 3 HV Operator, should be as a minimum, a level 3 HV Operator. Alcoa submits that a HV Operator acting as a witness for any switching performed by Level 3 HV Operator, should be as a minimum a Level 2 HV Operator in accordance with the HV Procedure. [47]
Level 2 HV Operators have been witnessing Level 3 HV Operator switching for many years. Between 2016 and 2018 approximately 14 Level 3 HV switching programs were witnessed by a Level 2 HV Operator. [48] Mr Giles-Duffy, Mr Kasper and Mr Bell admit that they have all undertaken the task of witnessing Level 3 HV Operator switching whilst a Level 2 HV Operator in the past.[49] Under cross examination Mr Giles-Duffy admitted that he felt competent to do so[50]. Both Mr Jauncey and Mr Bell conceded that some Level 2 HV Operators were willing to witness Level 3 HV switching.[51] Neither witness expressed any concern in them doing so provided that they did so voluntarily.[52]
The HV Procedure has specifically provided since 2018 that Level 2 HV Operators may witness Level 3 HV switching programs. This predated the negotiation of the Agreement.
It is the evidence of Alcoa’s witnesses that no dispute about this practise was raised until July 2023 (the trigger for this dispute) when Mr Giles-Duffy and Mr Kasper were advised that they may be required as Level 2 HV Operators to witness a Level 3 HV switching.[53]
Despite extensive discussion and correspondence on the topic of Level 3 HV switching since the inception of this dispute the parties have been unable to resolve the dispute.[54]
It is not disputed that the CEPU complied with the provisions of the dispute resolution procedure found at clause 19 of the Agreement before filing the Application.
Consideration
The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.
The Application was made pursuant to section 739 of the FW Act.
Section 739 of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure.
The Agreement commenced operation on 10 December 2021. The nominal expiry date of the Agreement is 2 December 2025.
The Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 19. Clause 19 relevantly provides as follows:
“19. RESOLUTION OF ISSUES
19.1 Dispute Settlement
(a) Any dispute relating to matters arising under this Agreement (including in relation to the Memorandum of Understanding related to Apprentice intake as signed by the Company and the Union), other than a matter arising from subclause 19.7 below; or
(b) the National Employment Standards; will be settled in accordance with the following procedures.
19.2 Representation
An employee who is a party to the dispute may appoint a representative for the
purposes of these procedures at any or all stages.19.3 Internal Dispute Settlement Procedure
(a) Stage 1 - In the first instance, the party raising the dispute must try to resolve the dispute at the workplace level, by discussions between the employee(s) and their immediate supervision.
(b) Stage 2 - If the dispute is not resolved through (a) above within two business days (or any other agreed period), the dispute will be the subject of discussions between the employee(s) and the next level of Company authority.
(c) Stage 3 - If the dispute is not resolved through (b) above within two business days (or any other agreed period), the dispute will be the subject of discussions between the employee(s) and other appropriate Company representatives. A period of up to five business days will be allowed for this stage (or any other agreed period).
(d) Stage 4 - If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission. Such referral must occur within five business days of the end of the five-day period provided for under (c) above. If the dispute is not referred within five business days, the dispute shall be automatically deemed to be withdrawn from the dispute resolution process and the dispute shall be at an end.
19.4 Fair Work Settlement Procedure
The Fair Work Commission will deal with the dispute in two stages:
(a) the Fair Work Commission will, at first instance, attempt to resolve the dispute through conciliation (except for disputes raised pursuant to Subclause 19.7(f) below, which may be immediately referred for arbitration if the parties agree to bypass the step of conciliation); and
(b) if the Fair Work Commission is unable to resolve the dispute through conciliation, the Fair Work Commission will arbitrate the dispute and make a determination.
Subject to any right of appeal, the parties to the dispute agree to be bound by a decision made by the Fair Work Commission.”
19.8 Site Union Representatives
Such accredited representatives may, during their rostered hours of work, become involved in the following without loss of pay or entitlement:
(a) grievances/disputes at their specific location;
(b) disciplinary matters at their specific location;
(c) terminations at their specific location;
(d) meetings with Company representatives at their specific location;
(e) Fair Work Commission proceedings (as appropriate); and
(f) meetings of Site Union representatives as agreed between the parties.”
The FWC may deal with a dispute only on application by a party to the dispute.[55]
Alcoa and the Employees are parties to the Agreement. The Employees are, or are eligible to be, members of the CEPU.[56] The CEPU is covered by the Agreement.[57]
The parties are in dispute as to whether the Agreement imposes any restrictions on the witnessing requirements for Level 3 HV switching.
There is no dispute[58], and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 19 of the Agreement.
There is no dispute and I am satisfied that the CEPU has complied with the procedural steps contained in clause 19 of the Agreement.
I am satisfied that the CEPU has standing to make the Application and that I have the jurisdiction to determine the dispute.
In dealing with the dispute the FWC can not exercise powers limited by the term.[59] If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.[60]
When arbitrating a dispute under the dispute settlement procedure the FWC is not exercising judicial power, but a power of private arbitration.[61] As a private arbitrator the FWC is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[62]
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [63] the Full Federal Court said at [70] to [71] that the powers and functions of the FWC identified in sections 577, 578, 590, 593, 595, 677 and 678 of the FW Act are available to the FWC when conducting a private arbitration.
Relevantly sections 577 and 578 of the FW Act provide as follows:
“s.577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
“s.578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; …”
The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union[64] at [15] and [16] of its decision, recently confirmed the principles of interpretation of enterprise agreements as follows:
“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”
It is justifiable to read an agreement to give effect to its evident purpose, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal should not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.[65]
The Agreement was the product of interest based bargaining facilitated by the FWC. It was conducted on a confidential and without prejudice basis. Notwithstanding what each of the large number of individuals involved in the bargaining may have hoped might be achieved in the Agreement ultimately the parties are bound by the terms eventually put to the ballot and approved by the workforce.
There is no evidence of any of the explanatory materials provided in the course of the approval process currently before me.
The terms approved by the workforce to the extent that they differed from the 2018 Agreement in relation to HV work provide for the payment of an allowance for the performance of Level 3 switching programs and specify the duties a Level 3 HV Operator is required to perform.
It is clear on the face of the Agreement that for the purposes of the Agreement a Level 3 HV Operator is an Employee who:
a.has volunteered for appointment;
b.has been selected for appointment by Alcoa;
c.has obtained competencies in excess or in addition to those required for a Level 2 HV Operator;
d.performs the range of HV related duties specified in Point 2 of Appendix B; and
e.is entitled to payment of an allowance.
The specified duties of a Level 3 HV Operator do not include the witnessing of the Level 3 HV Switching work.
The CEPU submit that performance of the role of a witness to Level 3 HV switching work in accordance with the HV Procedure is in fact the performance of Level 3 HV Operator work because:
a.Historically the HV Procedure implied that the witness was a more senior operator than the employee performing the switching work as the earliest versions of the HV procedure provided that ‘normally a witness will be the Recipient in Charge’ .
b.The role of the witness is to verify the switching program is followed and that an employee who is not able to perform a task can not verify it.
c.A requirement to participate in ‘two way’ communication contemplates communication on an equal footing.
d.The performance of the task of witnessing is an intrinsic and inseverable part of the performance of the entire task of performing Level 3 HV switching.
However, the HV Procedure has clearly contemplated that the witness be a lower level than the HV Operator undertaking the switching work since at least 2016. There is no evidence of any employee, union or regulatory body objecting to this arrangement until this dispute.
It is not uncommon or unreasonable for a process to provide for verification that a process has been undertaken without the witness performing the task themselves or having the qualification or competency to perform the task themselves.
The HV Procedure does not require the witness to physically perform any part of the Level 3 HV Switching program.
The Agreement provides a specific process and competency requirements for the appointment to and performance of Level 3 HV Operator duties. Simply performing the task of witnessing the performance of Level 3 HV switching does not require appointment or completion of those particular competency requirements.
A level 2 HV Operator who merely observes or witnesses an Employee (who has been nominated, been appointed and undertaken training) perform the duties specified in point 2 of Appendix B of the Agreement and does not perform any of those duties can not reasonably be said to be a Level 3 HV Operator or performing Level 3 Operator duties for the purposes of the Agreement.
Appendix B must be read and interpreted in its industrial context. Namely that the witnessing by a Level 2 HV Operator of a Level 3 HV Operator undertaking Level 3 HV switching has been company procedure and an established work practise for many years.
Notwithstanding that significant changes to Appendix B where made in the course of negotiating the Agreement those changes did not include:
a.Incorporating witnessing Level 3 HV switching as a specified duty of Level 3 HV Operators ; or
b.Excluding witnessing of Level 3 HV switching from the scope of duties which a Level 2 HV Operator can perform.
Rather, the Agreement remains silent in relation to the performance of witnessing duties.
This stands in stark contrast to the task of electrical and instrument isolations in Clause 1 of Appendix B which expressly provides that the physical act of tagging and the auditing of that tagging by an E/I person must be a person of the same authorisation level.
By remaining silent it appears that the workforce who approved the Agreement saw fit not change or otherwise regulate the existing company procedures and work practices in relation to the performance of witnessing duties via the Agreement.
Notwithstanding its assertion that the witnessing of Level 3 HV switching work by Level 2 HV Operators is the performance of Level 3 HV Operator work the CEPU also attempt to characterise the request in July 2023 that Mr Giles-Duffy and Mr Kasper witness the performance of Level 3 HV switching work as a change which constitutes an extra claim for the purposes of the Agreement. [66]
Factually such a characterisation is not open. Level 2 HV Operators have been witnessing Level 3 HV Operator switching for many years. Between 2016 and 2018 approximately 14 Level 3 HV switching programs were witnessed by a Level 2 HV Operator. The HV Procedure has specifically provided since 2018 that Level 2 HV Operators may witness Level 3 HV switching programs.
Alcoa submit that the requirements it has established for the witnessing of Level 3 HV switching is a matter of managerial prerogative.
Deputy President Sams in Bruce Steenstra v J.J. Richards & Sons Pty Ltd[67] confirmed the principles for managerial prerogative set out in Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW)[68] and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd[69], that the employer has a right to conduct and manage its business, as it sees fit, and without external interference.
Vice President Lawler in Construction, Forestry, Mining and Energy Union v HWE
Mining Pty Ltd[70], made clear that managerial prerogative is subject to legal constraints (such as by statute, terms of an award, terms of a contract of employment or a statutory agreement) however where no legal constraints, exist the FWC should not interfere with the right of an employer to lawfully manage its own business unless upon examination of all the facts it was deemed that the exercise of such managerial prerogative would be unjust or unreasonable to the employees. Vice President Lawler, clarified that:
“… an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.”
Alcoa submits that the exercise of its managerial prerogative to allow Level 2 HV Operators to witness Level 3 HV switching is not subject to any legal constraint. More specifically Alcoa submits that:
a. the WHS Act and the WHS Regulations;
b. Guidelines for the safe management of high voltage electrical installations;
c. Western Australia Electricity (Licencing) Regulations 1991 (WA);d. UETDRIS021 Co-ordinate and direct switching programs; and
e. the Agreement;
do not specifically require a witness for the purposes of HV switching.
The CEPU have not identified any specific legal constraint to a Level 2 HV Operator witnessing a Level 3 HV Operator undertaking a Level 3 switching program.
The CEPU cite the following excerpt from Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales: [71]
“The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”
However, the CEPU’s evidentiary case does not establish that the witnessing by a Level 2 HV Operator of a Level 3 HV operator performing level 3 HV switching is unsafe or might damage the health of the Level 2 HV operator. The evidence is that the witness is required to stand outside the danger zone falling within the Arc Flash Boundary. The evidence of the CEPUs own witnesses is that Level 2 HV Operators have safely and competently for many years witnessed Level 3 HV Operators perform Level 3 HV switching work. The CEPU have not identified, in the various health and safety legislation or guidance materials which it has produced, an obligation for the work of a HV Operator to be witnessed by another HV Operator of the same or higher level. If the performance of level 3 HV switching was unsafe without a Level 3 HV Operator witnessing such work one would expect this to be dealt with in the relevant legislation and/or guidance material.
The Full Bench in Briggs v AWH Pty Ltd[72] explained that reasonableness does not require an employer to demonstrate that “the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.”
Alcoa submits that the decision to allow, as a minimum, a level 2 HV Operator to witness Level 3 HV Switching Program being carried out is not unreasonable or unjust when regard is had for the role and responsibilities of the witness and the Level 3 HV operator undertaking the Level 3 HV Switching Program. This is consistent with the evidence that:
a.it is the responsibility of the Level 3 HV Operator to develop the Level 3 HV Switching Program in conjunction with another authorised Level 3 HV Operator.
b.The witness is not required to prepare, review or authorise the Level 3 switching program.
c.The witness is not required to physically perform or assist the Level 3 Operator undertake the switching program.
d.The role of the witness is to read each step of the level 3 switching program to the Level 3 Operator undertaking the level 3 switching program and confirm that the Level 3 Operator recites the step accurately.
e.The witness is not required to check the work performed by the Level 3 Operator undertaking the switching program in fact the witness must stand a distance typically ranging from 3 – 8m away from the location in which the Level 3 Operator undertakes the Level 3 Switching program.
The CEPU attempt to characterise the request in July 2023 that Mr Giles-Duffy and Mr Kasper witness the performance of Level 3 HV switching work as a change and argue that such a change is unreasonable exercise of managerial prerogative because it resulted in a diminution in a safety control. [73]
Factually such a characterisation is not open. The evidence is that level 2 HV Operators have been witnessing Level 3 HV Operator switching for many years. Between 2016 and 2018 approximately 14 Level 3 HV switching programs were witnessed by a Level 2 HV Operator. The HV Procedure has specifically provided since 2018 that Level 2 HV Operators may witness Level 3 HV switching programs. Rather than a diminution in safety control, the amendments to the HV Procedure in 2018 constitute an enhancement by requiring the witness to be an authorised HV Operator.
The CEPU also argue that the HV Procedure is unreasonable and unjust because as a company procedure it is a document created and amended at the company’s discretion. Contrary to the submissions of the CEPU the evidence is that HV work practices are not determined by Alcoa in a vacuum without reference to the prevailing statutory regime or specialist knowledge. Rather the evidence suggests that HV work practices at Alcoa are the subject of an extensive review, consultation and feedback process which incorporates the skill knowledge and expertise of Alcoa staff and the Employees as well as global learnings and local statutory requirements.
The CEPU argue that it is unreasonable and unjust that Employees can elect whether or not they perform Level 3 HV Operator duties but Level 2 HV Operators can be required to witness the performance of Level 3 HV Operator duties.
The duties performed by Level 3 HV Operators involves additional training, complexity and physical risk. It is not unsurprising that historically when these duties did not attract an additional payment that Employees insisted that performance of these duties was voluntary. It is not unsurprising that Employees have insisted that the performance of these duties remain voluntary in circumstances where the additional payment which it now attracts is quite modest.
There is no evidence that Level 2 HV Operators can not perform the task of witnessing Level 3 HV switching work legally, safely, or competently. Performance of this task does not require additional training or physical risk. It is a task which has for many years been one which has been performed by Level 2 HV Operators within the scope of their normal duties.
In these circumstances it is not unreasonable or unjust that Employees are not compelled to become Level 3 HV operators, but Level 2 HV Operators may be directed to witness Level 3 HV Operators perform HV Level 3 Switching in the manner contemplated in the HV Procedure.
Conclusion
While no doubt a sensible practise, there are no legislative or other requirements outside of Alcoa’s own policies which require a witness be present whilst HV switching is being performed.
The HV Procedure has been developed to meet or exceed state and federal legislative requirements as well as Alcoa’s own global safety protocols.
The practice of a Level 2 HV Operator witnessing a Level 3 HV Operator performing a Level 3 HV Switching Program has been ongoing work procedure and practice within Alcoa’s business, since at least 2016.
The minimum requirement to allow Level 2 HV Operators to witness a Level 3 HV Switching Program is not unreasonable, unsafe and has not been implemented in a manner which is inconsistent with Alcoa’s obligations.
Such a practise is not prohibited by the Agreement nor is it inconsistent with the Agreement.
The task of witnessing the performance of Level 3 Switching as contemplated by the HV Procedure does not amount to the performance of Level 3 HV Operator work for the purposes of the Agreement.
The duties performed by Level 3 HV Operators involves additional training, complexity and physical risk while the task of witnessing Level 3 HV switching work can, and has been, for many years safely and competently performed by Level 2 HV Operators without additional training or risk it is not unreasonable or unjust that the appointment to Level 3 HV Operator is voluntary while a Level 2 HV operator may be directed to perform the role of a witness in accordance with the HV Procedure.
Both the statutory work health and safety regime and Alcoa’s internal polices provide mechanisms for employees who feel that they are not competent to safely perform a task to raise this and have it addressed if any Level 2 HV Operator in any particular circumstance feels unsafe.
In conclusion there is nothing within the terms of the Agreement:
a.which require that a witness, as contemplated by the HV Switching Procedure be, when witnessing a Level 3 HV Switching Program, a person authorised to undertake HV Switching at Level 3; or
b.prevents Alcoa directing an Employee covered by the Agreement to undertake witnessing subject to that person meeting the criteria for a witness as defined by the HV Switching Procedure.
DEPUTY PRESIDENT
Appearances:
Mr J Fox for the Applicant.
Mr M Vallence for the Respondent.
Hearing details:
2024
PERTH
5 April
Final written submissions:
Applicant’s final written submissions filed 22 April 2024
Respondent’s final written submissions filed 29 April 2024
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 221.
[3] Ibid 222.
[4] Ibid 223-224
[5] Ibid 225-229.
[6] Ibid 230-232.
[7] Ibid 233-238
[8] Ibid 1989-2610.
[9] Ibid 2611-2785.
[10] Ibid 1990.
[11] Ibid 1990.
[12] Ibid 1990.
[13] Ibid 1990.
[14] Ibid 1990.
[15] Ibid 1991.
[16] Ibid 1991.
[17] Ibid 1993.
[18] Ibid 387 – 1960.
[19] Ibid 1993.
[20] Ibid 199.
[21] Ibid 2611.
[22] Ibid 1974.
[23] Ibid 1992.
[24] Ibid 223.
[25] Ibid 2612.
[26] Ibid 1994.
[27] Ibid 210.
[28] Ibid 1994, 1995.
[29] Ibid 1994.
[30] Ibid 210, 1996.
[31] Ibid 1997.
[32] Ibid 1995, 2612-2613.
[33] Ibid 2613.
[34] Ibid 1995.
[35] Ibid 1995.
[36] Ibid 211, 1991.
[37] Ibid 1991.
[38] Ibid 1991.
[39] Ibid 211.
[40] Ibid 1981.
[41] Ibid 211, 1991.
[42] Ibid 386.
[43] Ibid 210.
[44] Ibid 223-224.
[45] Ibid 211.
[46] Ibid 1992-3, 2858-2859.
[47] Ibid 211.
[48] Ibid 1998.
[49] Ibid 222.
[50] Transcript at PN94.
[51] Ibid at PN269 and 340 respectively.
[52] DCB n 2, 230-231.
[53] Ibid 1998.
[54] Ibid 211.
[55] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).
[56] DCB (n 2) 211.
[57] Ibid 211.
[58] Ibid 211.
[59] FW Act (n 55) S.739(3).
[60] Ibid S.739(5).
[61] Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [75] to [79]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].
[62] CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU (n 23) at [19]-[24]; AMWU v ALS Industrial Australia (n 23).
[63] [2015] FCAFC 123; 235 FCR 305.
[64] [2021] FWCFB 1903.
[65] See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].
[66] DCB (n 2) 1998.
[67] [2015] FWC 7918 at [186].
[68] (1984) 295 CAR 188.
[69] (1987) CLR 117.
[70] [2011] FWA 8288 at [10].
[71] (1984) 295 CAR 188.
[72] [2013] FWCFB 3316 at [8].
[73] DCB (n 2) 1998.
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