The Australian Workers' Union v Alcoa Australia Rolled Products Pty Limited
[2010] FWA 5674
•8 OCTOBER 2010
Note: An appeal pursuant to s.604 (C2010/5394) was lodged against this decision - refer to Full Bench decision dated 21 December 2010 [[2010] FWAFB 9832] for result of appeal.
[2010] FWA 5674
PR999886
The attached document replaces the document previously issued with the above code on 8 October 2010.
Typographic errors in paragraphs [64]; [71]; and [121]
Punctuation errors in paragraphs [16]; [49]; [51]; [73]; and [87]
Superfluous wording in paragraph [94]
Dean Berman
Associate to Commissioner Lewin
Dated 22 October 2010
[2010] FWA 5674 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
Alcoa Australia Rolled Products Pty Limited
(B2009/10749, B2009/10750)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Alcoa Australia Rolled Products Pty Limited
(C2009/10666)
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)v
Alcoa ARP
(C2009/10669)
COMMISSIONER LEWIN | MELBOURNE, 8 OCTOBER 2010 |
Protected industrial action – dispute over application of terms of Agreement - jurisdiction- partial work bans – notices – effect on terms of enterprise agreement – proportional reductions in payments under terms of an enterprise agreement – employer to “give” an employee a notice
Background
[1] The above applications relate to reductions in wages and other payments due to employees of Alcoa Australia Rolled Products Pty Ltd (Alcoa) under the terms of the Alcoa Australia Rolled Products Point Henry Agreement 2006 (the Agreement) who are members of either the Australian Workers’ Union (the AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) or the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) who participated in protected industrial action against Alcoa in September 2009 in support of a proposed enterprise agreement.
[2] The Agreement is a collective agreement as defined in s.4 of the Workplace Relations Act 1996 (the WR Act) and is therefore a collective agreement-based transitional instrument as provided for by Schedule 3, Part 2, Item 2(5)(c)(i) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).
[3] The WR Act was repealed by the Fair Work Act 2009 (the Act) with effect from 1 July 2009. Notwithstanding the repeal of the WR Act, the Transitional Act has operation.
[4] Schedule 19, sub-item 1(1) of the Transitional Act provides that the WR Act continues to apply on or after the date of its repeal for the purpose of dealing with disputes in relation to a matter arising under a transitional instrument. By virtue of sub-item 1(2) of the Transitional Act, the WR Act applies in relation to such a dispute in the way that it applied before its repeal in relation to a like dispute.
[5] A “transitional instrument” to which the provisions of Schedule 19 apply is one defined by Item 2 of Schedule 2 of the Transitional Act. That provision defines a transitional instrument by reference to sub-items 2(3) and (4) of Schedule 3 to the Transitional Act. Item 2(1) to Schedule 3 of the Transitional Act provides that each WR Act instrument that becomes a transitional instrument continues in existence in accordance with Schedule 3 from and when it becomes a transitional instrument despite the repeal of the WR Act. Sub-item 2(2)(c) includes a workplace agreement. The accompanying Note 1 to sub-item 2(2)(c) states that a workplace agreement includes a collective agreement.
[6] The Agreement was therefore a WR Act instrument under item 2(2) of Schedule 3 to the Act. By operation of sub-item 2(3) of Schedule 3, the Agreement, being a WR Act instrument that was in operation immediately before the repeal of the WR Act on 1 July 2009, became a transitional instrument upon that repeal. Therefore, by operation of sub-item 2(1) of the Transitional Act, the Agreement continued to exist despite the repeal of the WR Act.
[7] Pursuant to item 2 of Schedule 19 of the Transitional Act the powers of the Australian Industrial Relations Commission (AIRC) to deal with a dispute as conferred under the WR Act were conferred upon Fair Work Australia to deal with a dispute over the application of a collective agreement in accordance with the terms of such an agreement where applicable.
[8] By virtue of sub-item 1(1)(a) of Schedule 19 of the Transitional Act, the WR Act continues to apply for the purposes of dealing with disputes in relation to a matter arising under the Agreement.
[9] Fair Work Australia has jurisdiction to conduct a dispute resolution process under s.170LW of the pre-reform WR Act as preserved by operation of Part 2 of Schedule 7 of the WR Act and Schedule 19 of the Transitional Act in relation to a transitional instrument.
[10] Part 3-3 of the Act deals with industrial action and, among other things, contains provisions dealing with partial work bans. Item 20 of Schedule 13 of the Transitional Act is as follows:
“20 Application of Division 9 of Part 3-3 of the Act
Division 9 of Part 3-3 of the Act applies as if:
(a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award-based transitional instrument and a Division 2B State award; and
(b) the reference in those provisions to an enterprise agreement included a reference to an agreement-based transitional instrument and a Division 2B State agreement.”
[11] The Alcoa agreement is an agreement-based transitional instrument. As such the references in paragraph 470(4)(b), subsection 471(2) and paragraph 474(2)(c) in the Act to an enterprise agreement are by the nature of sub-item 20(b) of Schedule 13, effectively references to a collective-based transitional instrument such as the Alcoa agreement. That is to say, the provisions dealing with partial work bans can apply to the Alcoa agreement.
[12] This decision concerns an alleged dispute over the application of the Alcoa Rolled Products Point Henry Agreement 2006 (the Agreement). The Agreement is a transitional instrument and contains a dispute settlement procedure as follows:
“27. Resolution Of Disputes
(a) The Company and the employees recognise the importance of uninterrupted production and supply to customers and agree that conciliation is the most satisfactory means to resolve matters. Accordingly, the Company and the employees agree to discuss issues exhaustively with the outcome being determined on the facts, logic and merit involved.
(b) Consistent with the intent of sub clause (a) hereof, the Company and the employees agree to process any grievances or other matters in dispute in accordance with the following procedure.
i) The matter will first be discussed between the employee and his or her team or immediate supervisor. At any time throughout the resolution of disputes process, an employee may chose to be represented by an employee representative of his or her choice.
ii) If not settled, the matter will be submitted by the employee or appropriate employee representative to the Departmental Manager or his or her designated representative.
iii) If not settled, the matter will be automatically referred to the HR/IR Manager who will seek its resolution through discussions with the employee and his or her designated Representatives.
iv) Where the employee has elected to be represented by an employee representative, the Company will reserve the right to discuss the matter with State and or Federal Officials of the employee representative’s organisation concerned at any stage.
v) If the matter cannot be settled through this mechanism, it will then be referred to the Australian Industrial Relations Commission for conciliation or arbitration.
vi) If the AIRC cannot hear the matter because it is outside its jurisdiction then the Company and the employee(s) agree that the matter will be referred to an impartial third party to be jointly appointed by the parties. The third party may be a member or former member of the Commission or a former Judge or other prominent person capable of providing a practical solution, or a Disputes Panel.
vii) On referral, the mediator shall endeavour to resolve the dispute between the parties, the mediator may arbitrate the matter with the agreement of the parties.
(c) Until the matter is determined in accordance with the above procedure, work will continue normally and without prejudice as to final settlement of the matter. All Parties to this Agreement will take all possible action to settle any dispute within fourteen days of its notification to the Departmental Manager pursuant to paragraph (b)(ii) above.
(d) i) In the event of an employee being given summary dismissal in accordance with paragraph 6(b)(vi) of this Agreement, the Company will notify the appropriate employee representative, if requested by the employee, as soon as possible.
ii) The Union will formally notify the HR/IR Manager if it is contended there are reasons why the dismissal is inappropriate.
In these circumstances, the employee will continue to receive normal pay and entitlements until the matter is determined in line with the processes set out in this Clause. The continuation of pay and entitlements will be on the condition that no industrial action is taken over the matter and that legitimate attempts are being made to resolve the matter expeditiously.”
[13] The applications in B2009/10749 and B2009/10750 were lodged in Fair Work Australia on 1 October 2009. These matters were listed for Hearing on 8 October 2009. The Tribunal was notified prior to 8 October that the AMWU and the CEPU intended to lodge applications in relation to similar disputes. The Hearings in matters B2009/10749 and B2009/10750 were adjourned in anticipation of the receipt of an additional two applications. The applications in C2009/10666 and C2009/10669 were lodged in Fair Work Australia. On 9 October 2009 all four applications were listed jointly at 2.30 pm the same day for hearing on 9 October 2009.
[14] At the Hearing of 9 October 2009, Mr Patrick Reilly appeared for the AWU, Mr Patrick Larkins appeared for the CEPU and Ms Elizabeth McGrath appeared for the AMWU. Mr Nicolas Ogilvie, a solicitor, appeared by permission on behalf of Alcoa.
[15] In matter B2009/10749, the AWU sought an Order relating to certain partial work bans pursuant to s.472 of the Act which is set out below:
“472 Orders by FWA relating to certain partial work bans
(1) FWA may make an order varying the proportion by which an employee’s payments are reduced.
(2) FWA may make the order only if a person has applied for it under subsection (4).
(3) In considering making such an order, FWA must take into account:
(a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and
(b) fairness between the parties taking into consideration all the circumstances of the case.
(4) An employee, or the employee’s bargaining representative, may apply to FWA for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee’s payments will be reduced.”
[16] In the application B2009/10749, the AWU sought to vary the proportion of employees payments which were reduced as a result of the employees allegedly participating in protected industrial action comprising partial work bans and purported action under s.471 of the Act by Alcoa.
[17] The application in matter B2009/10750 was purportedly made under s.471 of the Act 1 (despite some mistaken recording of the nature of the application on the file).
[18] In matter B2009/10750, the AWU sought an Order that Alcoa, “cease deducting money from the wages of AWU members for partial work bans until it has complied with the notice requirements of the Fair Work Act 2009 in relation to such deductions”, and secondly, “refund all money deducted from the wages of AWU members in relation to partial work bans before the notice requirements have been complied with”.
[19] Some confusion arose concerning the order of the proceedings on the AWU applications. The AWU sought that the application in matter B2009/10750 be determined before the application in matter B2009/10749.
[20] In matter C2009/10666, the CEPU applied to Fair Work Australia to deal with a dispute pursuant to s.739 of the Act which is set out below:
“739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.”
[21] The CEPU sought an order that Alcoa firstly, “cease deducting money from the wages of CEPU members for partial work bans until it has complied with the notice requirements of the Fair Work Act 2009 in relation to such deductions”, and secondly, “refund all money deducted from the wags of CEPU members in relation to partial work bans before the notice requirements have been complied with”.
[22] In matter C2009/10669, the AMWU made an application under s.739 of the Act for Fair Work Australia to resolve a dispute. The AMWU sought firstly, “a reimbursement of wages for AMWU members that were deducted in contravention of the notice requirements of the Act”, and secondly, “An order to stop deducting the wages of our members until the notice requirements have been met”.
[23] During the Hearing, Alcoa indicated that they objected to Fair Work Australia determining the dispute under s.739 of the Act. Given the various applications and what I considered to be some confusion as between the applicants concerning the proceedings I issued Directions at the completion of the Hearing that the unions file in the Tribunal an outline of their arguments in support of their applications by 16 October 2009. The outline was to include a summary of the relevant facts and the jurisdiction, power and discretion of the Tribunal in relation to the dispute and the remedies sought. Alcoa was also directed to file submissions.
[24] On 16 October 2009, the applicant unions filed Submissions in the Tribunal addressing the issues of jurisdiction and indicating that the Tribunal should proceed to determine if the conditions precedent to making proportional reductions in payments due under the Agreement had been met pursuant to s.471 of the Act, prior to the determination of applications for orders pursuant to s.472 of the Act, as disputes concerning the proper application of the terms of the Agreement. In the circumstances I treat the AWU submissions as an application for the Tribunal to exercise the dispute settlement function assigned to it under the Agreement.
[25] The applications were relisted for Mention and Programming and to determine a jurisdictional issue on 27 November 2009. During the Hearing on 27 November 2009, I decided that Fair Work Australia has the jurisdiction to deal with the alleged dispute as a dispute over the application of the terms of the Agreement which is discussed further in detail below.
[26] Before proceeding to do so however I note that to the extent that the dispute may be dealt with accordingly, the outcome of such a determination does not encompass the issuance of an order or orders under the Act or the WR Act. The manner in which Fair Work Australia determines a dispute over the application of the terms of an Agreement in accordance with the relevant terms of the Act is dealt with in more detail below.
[27] Subsequent to the Hearing on 27 November 2009, Directions were issued in the following terms:
“1. The Tribunal hereby directs that, on or before 5.00 pm on 18 December 2009, Alcoa shall file in the Tribunal and serve upon the respondent:
witness statements and submissions in relation to the service of notices in relation to deductions from wages for the periods of industrial actions subject to the dispute in this matter.
2. The Tribunal further directs that on or before 5.00 pm on 15 January 2010, the AWU, the AMWU and the CEPU shall file in the Tribunal and serve upon the applicant:
witness statements and submissions in relation to the service of notices in relation to deductions from wages for the periods of industrial actions subject to the dispute in this matter.”
[28] On 9 March 2010, the applications were listed for Hearing at Geelong on 22 and 23 April 2010. Mr Nicolas Ogilvie appeared for Alcoa. Mr Patrick Larkins appeared for the CEPU. Mr Patrick Reilly appeared for the AWU and Ms Elizabeth McGrath appeared for the AMWU.
[29] The following witnesses gave evidence for Alcoa: Ms Linda Craven, Mr Mark Power, Mr Glen Pasque, Mr Justin Grace, Ms Ursula Carlson, Mr John Herron, Mr David Jacobs, Mr Damien Neal, Ms Haylee Brown, Mr Ramin Shamsili, Mr Fayzal Akhter, Mr David Stones, and Mr Shane Hase.
[30] The following witnesses gave evidence for the CEPU: Mr Joseph Spitiri, Mr Sean McGrath, Mr Steven Waters, Mr Russel Taylor, Mr Andrew Fratantaro, Mr Andrew Debooy, Mr David Little, Mr Paul Cotter, Mr Neil McKenzie, Mr Peter Carty, Mr Wade Sechtig, Mr Peter Gratton, Mr Robert Martin and Mr John Fagan.
[31] The following witnesses gave evidence for the AWU: Mr Kelvin Brewer, Mr Gary Holmyard, Mr Terrence Bennet, Mr Phillip Bourke, Mr James Harper, Ms Sandra Ryan and Ms Karen Wright.
[32] The following witnesses gave evidence for the AMWU: Mr Andrew Scott, Mr Mark Ginn, Mr Travis Gannon and Mr Joshua Richardson.
[33] At the conclusion of the Hearing, I issued Directions in relation to the filing of final submissions in Fair Work Australia. Alcoa was directed to file by Thursday 27 May 2010. The three unions were directed to file by Friday 11 June 2010. The three unions requested adjournments by which to file, and on 16 June 2010, the three unions were granted an extension to file material pursuant to the Directions by the close of Business on Friday 18 June 2010.
Nature of the dispute
[34] The subject matter of the alleged dispute is the requirement to pay wages and other amounts prescribed by the Agreement where employees have engaged in protected industrial action comprised of partial work bans. Alcoa made reductions in payments due to employees under the Agreement in respect of the protected industrial action, including in respect of partial work bans.
[35] On what is before me almost 300 employees of Alcoa approved of and were authorised to take protected industrial action commencing on Wednesday 16 September 2009. In the relevant period various types of protected industrial action were apparently engaged in, including partial work bans.
[36] Alcoa made the proportional reductions in wages and other payments due to the relevant employees under the terms of the Agreement on the basis of the provisions of s.471(1) of the Act and notices Alcoa says it gave to the employees, in respect of partial work bans. The giving of the notices, Alcoa says, had the effect of varying the requirements of the Agreement to make payments of wages and other amounts prescribed by the Agreement2 to the employees for periods of protected industrial action comprised of partial work bans, in accordance with the relevant statutory provisions.
[37] The three unions submit, among other things, that Alcoa has not given the employees notices under s.471(1) of the Act, which would have the effect of reducing payments payable under the terms of the Agreement. In other words, certain payments have been reduced contrary to a proper application of the terms of the Agreement in the relevant factual circumstances. The unions say where an employee who imposes a partial work ban and the employee is not given a notice under s.471(1) of the Act the terms of the Agreement apply, without variation, to the work performed under that partial work ban.
[38] Section 470 of the Act deals with payment for periods of protected industrial action and is set out below:
“470 Payments not to be made relating to certain periods of industrial action
(1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, this section does not apply to a partial work ban.
Note: For payments relating to periods of partial work bans, see section 471.
(3) A partial work ban is industrial action that is not:
(a) a failure or refusal by an employee to attend for work; or
(b) a failure or refusal by an employee who attends for work to perform any work at all; or
(c) an overtime ban.
(4) If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:
(a) the employer requested or required the employee to work the period of overtime; and
(b) the employee refused to work the period of overtime; and
(c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.
(5) If:
(a) the industrial action is, or includes, an overtime ban; and
(b) this section applies in relation to a period of overtime to which the ban applies;
then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies.
[39] The provisions of s.471 of the Act are set out below:
“471 Payments relating to partial work bans
Employer gives notice of reduction in payments
(1) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and
(c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion specified in the notice;
then the employee’s payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5).
(2) The employee’s payments in relation to the industrial action period are reduced:
(a) by the proportion specified in the notice; or
(b) if FWA has ordered a different proportion under section 472—by the proportion specified in the order;
and the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly.
(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.
Employer gives notice of non-payment
(4) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and
(c) the employer gives to the employee a written notice stating that, because of the ban:
(i) the employee will not be entitled to any payments; and
(ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;
then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).
(4A) If:
(a) an employer has given an employee a notice under paragraph (4)(c); and
(b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;
then:
(c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or
(d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.
The industrial action period
(5) The industrial action period is the period:
(a) starting at the later of:
(i) the start of the first day on which the employee implemented the partial work ban; or
(ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and
(b) ending at the end of the day on which the ban ceases.
Form and content of notice
(6) The regulations may prescribe requirements relating to one or both of the following:
(a) the form of a notice given under paragraph (1)(c) or (4)(c);
(b) the content of such a notice.
Manner of giving notice
(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:
(a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and
(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.
Employer does not give notice
(8) If:
(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and
(b) the industrial action is a partial work ban; and
(c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);
then the employee’s payments for the day are not to be reduced because of the ban.”
(emphasis added to s.471(2))
[40] Because of the interaction between the provisions of ss.470 and 471 of the Act in relation to the giving of notices to relevant employees; if the statutory requirements of s.471 of the Act have not been fulfilled, then the terms of the Agreement will continue to operate, without any modifying effect derived discretion therein in respect of protected industrial action comprised of a partial work ban.
A dispute about the application of the terms of the Agreement—Jurisdiction
[41] The jurisdictional issue arising in relation to the dispute can be addressed as follows: Is the dispute properly characterised as a dispute to which the dispute settlement procedures of the Agreement apply, and, having regard to the provenance of the Agreement under the WR Act and the consequences of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (the Transitional Act), one which the Tribunal can deal with under s.170LW of the WR Act
[42] Section 170LW of the WR Act is set out below:
“Section 170LW Procedures for preventing and settling disputes
170LW Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(to appoint a board of reference as described in section 131 for the purpose of settling disputes.”
[43] Alcoa submits that to determine whether or not the statutory requirements of s.471 of the Act have been met, so as to affect the operation of the terms of the Agreement in respect of an employee’s entitlement to payment as prescribed by the Agreement, is a judicial function. In essence, they submit, the dispute between the parties is not the proper application of the terms of the Agreement governing the company’s obligation to make payment of wages and other amounts to employees in the relevant circumstances. Rather, they say, the dispute concerns the rights, duties and obligations of Alcoa and its employees arising under the operation of s.471 of the Act. The determination of this dispute, it is said, is exclusively a judicial function. Alcoa therefore submits that the dispute is not subject to the dispute settlement terms of the Agreement and not a dispute arising under the Agreement concerning the application of its terms, as provided for by s.170LW of the WR Act.
[44] On 27 November 2009, I rejected this submission and proceeded to hear evidence of the circumstances under which the authorised protected industrial action occurred and what actions were taken by Alcoa to meet the statutory requirements of s.471(1) of the Act, so as to affect the operation and application of the relevant terms of the Agreement as to payment of wages and other amounts.
Reason for decision—Jurisdiction
[45] On 27 November 2009 when I announced my view that the Tribunal has Jurisdiction to deal with the dispute, I did so summarily. I stated that should that decision be challenged on appeal by Alcoa I would provide extended reasons for my conclusion as soon as possible. No appeal was filed and no request for extended reasons was received. I also stated that I would provide more extended reasons in due course when determining the dispute, which I now do in accordance with the dispute settlement provisions of the Agreement, in particular clause 27(b)(v) of the Agreement.
[46] Section 471 of the Act provides that, where certain conditions precedent are met, a modern award, enterprise agreement, or contract of employment is affected in a certain way. Namely, to authorise proportional reductions of amounts otherwise payable to employees by force of the relevant terms of, in this case, the Agreement. It seems a reasonable approach to the dispute to assume that the application of the terms of the Agreement may or may not be affected by the existence of those conditions precedent in the particular circumstances of an employee who is said to have engaged in protected industrial action, which is a partial work ban within the meaning of the Act. That will depend on a number of relevant facts.
[47] If an employee has not engaged in protected industrial action comprised of a partial work ban the terms of the Agreement will not be affected by any notice which an employee may have been given under s.471 of the Act. If the employee has engaged in protected industrial action which is a partial work ban within the meaning of the relevant statutory provisions and has not been given a notice as required by those provisions, or s.471(4)(c) of the Act the terms of the Agreement will apply unaffected by the statutory provisions.
[48] There is a difference of some significance between the nature of ss.470 and 471 of the Act. Section 470 is a statutory prohibition on making payments to an employee and is directed solely at the legal obligations of an employer in particular factual circumstances. Those provisions do not apply to protected industrial action which is a partial work ban. Section 471 of the Act is directed at effects upon the terms of an enterprise agreement (among other things) which creates reciprocal rights between an employer and an employee in relation to proportional payments for the part performance of work defined as a partial work ban.
[49] An employee who is subject to an enterprise agreement could reasonably seek to invoke the dispute settlement provisions of the Agreement in relation to disputed facts concerning; whether the employee engaged in protected industrial action on a day; whether the employee engaged in a partial work ban within the meaning of s.471 of the Act; whether the employer gave the employee a written notice; whether that notice stated that, because of the ban the employees’ payments would be reduced; whether those payments would be reduced by a proportion and/or whether the proportion was specified and, if so, in the notice given to the employee, whether the reductions were in fact the proportional reductions in payments due as specified in the notice, whether the proportional reductions were worked out in accordance with the Act as required by s.471(3) thereof. The essence of the dispute in this case is, as a matter of fact in the relevant circumstances of each employee, whether the operation of the terms of the Agreement has been affected by the actions of various employees in relation to partial work bans, the actions of Alcoa in relation to partial work bans imposed by those employees and the operation of s.471 of the Act so as to only require a proportion of the payments prescribed by the agreement for work partially performed under the Agreement.
[50] By virtue of subsection 471(3) of the Act a deduction in respect of a partial work ban is to be “worked out” in a way prescribed by the Fair Work Regulations 2009 (the Regulations). The relevant Regulation is R3.21, which is set out below:
“3.21 Payments relating to partial work bans — working out proportion of reduction of employee’s payments
For subsection 471 (3) of the Act, the proportion mentioned in paragraph 471 (2) (a) of the Act is worked out for an employee or a class of employees by carrying out the following steps.
Step 1 | Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform. |
Step 2 | Estimate the usual time that the employee or the class of employees would spend performing the work during a day. |
Step 3 | Work out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day. The solution is the proportion by which the employee’s payment will be reduced for a day.” |
[51] In this disputed situation, the steps set out in R.3.21 would seem to require some consideration having regard to the work that an employee is required to and is partially refusing to perform, the relevant terms of the Agreement prescribing payment for particular time worked by an employee and the hours and pattern of an employee’s work. In respect of a partial work ban the effect of actions taken or not taken by the employer on the terms of an Agreement, in respect of giving notices, will be dependent upon the interaction between the statutory provisions, including Regulation 3.21, the relevant facts concerning the work of the employee imposing a partial work ban and the proportion of the employee’s work not performed, as a part of the whole of an employee’s work.
[52] The entitlements of an employee imposing a partial work ban will nevertheless be those which operate by force of the Agreement, if and as modified in the particular case by the effect of the actions of the employer to give an employee a notice worked out in a proper manner.
[53] When the Tribunal deals with a matter under s.170LW of the WR Act it does so as a private arbitrator of the legal rights, duties and obligations of the parties to an enterprise agreement. In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Another, 3 the High Court of Australia said:
“There is … a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.
Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind.” 4
[54] Consistent with this decision, a Full Bench of the Australian Industrial Relations Commission in University of Western Sydney v Professor Richard Fletcher 5 said:
“[24] A dispute over the application of a provision of an agreement may involve disputed issues of fact and could raise issues of interpretation of the provision. It involves a process of ascertaining the facts and the application of the terms of the agreement to them. The dispute would necessarily relate to past events. In arbitrating such a dispute the Commission would be concerned with the actions and conduct of the parties involved in the dispute and whether the action and conduct accords with the terms of the provision of the agreement. In other words has the provision been applied according to its terms? In giving a decision in the dispute the Commission would express an opinion as to whether the actions or conduct accords with the provision of the Agreement and whether it has been applied in accordance with its terms. The parties to the dispute would be bound by the arbitrated decision.” 6
[55] When exercising an arbitral function conferred upon it by the parties under a dispute settlement procedure of an Agreement, concerning the application of the terms of an agreement, the Tribunal may be required to consider the effect of a statutory term which has a legal effect upon the operation of the terms of the Agreement, in order to conduct a private arbitration of the legal rights, duties and obligation of the parties to the Agreement.
[56] This type of consideration was addressed by the Full Bench 7 of the Australian Industrial Relations Commission in the matter of University of New South Wales v National Tertiary Education Industry Union in particular between paragraphs [30] to [36] thereof. The decision concerned an appeal against a decision of Vice President Watson in relation to a dispute between the University of New South Wales and National Tertiary Education Industry Union in which the Vice President had found was a dispute capable of being dealt with under the dispute settlement procedures of the University of New South Wales (Academic Staff) Enterprise Agreement 2006 and the University of New South Wales (General Staff) Enterprise Agreement 2006. The dispute involved the interaction between the terms of the Agreement and the provisions of s.236(5) of the WR Act.
[57] At Paragraph [31] and [32] of the Full Bench Decision, the following is stated:
“[31] The University also contended that there was no dispute about a matter arising under the agreement and that the requirement in s.353(1) of the Act was therefore not satisfied. As we have noted already, ss.709(1)(a) and 710(a) require that the Commission cannot deal with a dispute unless it is one that under the terms of a workplace agreement may be resolved using a dispute resolution process conducted by the Commission. Section 353(1) provides that a workplace agreement must include procedures for settling disputes about matters arising under the agreement between the employer and the employees where employment will be subject to the agreement. The University’s submission, put in a number of ways, is that there was no dispute about a matter arising under the agreement and therefore, because of s.353(1), no dispute which could be dealt with under the dispute settling provisions in the agreements. The relevant passage from the Vice President’s decision is:
“[20] In my view it is necessary to characterise the nature of the dispute and determine whether it falls within the description of disputes capable of being dealt with under the agreement. The NTEU contends that processes under the Agreements have not been followed. The University contends that the provisions are not applicable because they are supplanted by provisions of the Act. The dispute therefore concerns the interaction between the Act and the Agreements, whether the provisions of the agreement apply, and if they do, whether they have been followed.
[21] In my view such a dispute is a dispute “regarding the interpretation, application or operation” of provisions of the Agreements within subclause (a) of the dispute settlement procedures. I am also of the view that such a dispute is “a dispute about matters arising under an agreement” should it be found that section 353 imposes limitations on the types of disputes which can be dealt with under dispute settlement procedures of agreements. The dispute is not deprived of its relationship to the Agreement just because it also involves a consideration of provisions of the Act. If the Act supplants the provisions of the Agreements, then the relevant determination is that the provisions of the agreement do not apply. That concerns a dispute over the application or operation of the provisions of the Agreements.”
[32] We agree with the Vice President, for the reasons he gave, that the dispute was in substance about the interaction between terms of the agreement and terms of the Act and that such a dispute is within the terms of the dispute settlement procedures in the agreements and within the terms of s.353 of the Act. We add that this case is clearly distinguishable from McCallum v Tenix Solutions Pty Ltd. 2” (19 November 2003, 128 IR 286.)”
[58] By force of the provisions of s.471 of the Act, as emphasised previously, the clear intention of the parliament is to affect the operation of the terms of an enterprise agreement in relation to an employee. A dispute over the operation of the terms of the Agreement, however arising, is a dispute to which the dispute settlement provisions of the Agreement and the relevant statutory authority afforded the Tribunal under s.170LW of the WR Act to deal with such disputes both apply.
Did Alcoa “give” a notice to relevant employees
[59] I now turn to consider the notices which Alcoa says it gave to the employees and more particularly, the act of giving those notices. On what is before me the actions taken to give an employee a notice relating to what Alcoa says were partial work bans is somewhat uneven. Depending upon the facts, it may be that some employees were given notices and some were not. In this case the determination of the dispute could vary according to the factual circumstances applicable to individual employees. It was for this reason that I issued directions on 12 May 2010 as follows:
“[1] The Tribunal hereby directs Alcoa Rolled Products Pty Limited to file in the Tribunal and serve upon The Australian Workers’ Union, The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union(the AWU, the CEPU, and the AMWU) Submissions in the form of answers to the questions marked 1. and 2. below by the close of business on Thursday 27 May 2010.
1. Having regard to the nature of the proceedings and the evidence before the Tribunal, is it appropriate to make general findings as to whether or not the employees in respect of whom disputed deductions for partial work bans have been made engaged in industrial action and were provided with the required notices in the manner prescribed by the Fair Work Act 2009 (the Act) and the Fair Work (Registered Organisations) Regulations 2009 (the Regulations)?
2. If it is necessary to make individual findings in relation to each employee in respect of whom disputed deductions for partial work bans were made, did those employees engage in industrial action and were those employees each provided with notices in accordance with the statutory requirements, in the manner prescribed by the Act and Regulations? Further, assuming an employee or employees engaged in industrial action, has the notice required by section 471 of the Act been given in all respects as required by the Act and, in particular, in the manner provided for by subsection 471(7)(a)?
[2] The Tribunal further directs that the CEPU, the AWU, and the AMWU file in the Tribunal and serve upon Alcoa Rolled Products Pty Limited Submissions in the form of answers to the questions marked 1. and 2. above and Submissions in reply to those filed by Alcoa Rolled Products Pty Limited pursuant to direction [1] above by the close of business on Friday 11 June 2010.”
[60] Those directions elucidated a response from Alcoa that the evidence could be relied upon for a conclusion that all of the employees or at least those who gave evidence have been given the notice required by s.471(4) of the Act. I am unable to accept this submission for reasons which will be set out below. In my view, it is necessary that the notice envisaged must be given to an employee whose payments under the terms of the Agreement are to be subject to proportional reductions. The notice must be specific to that employee’s circumstances and identify the protected industrial action engaged in by the employee which comprises a partial work ban and the proportional reductions in amounts payable to the employee under the terms of the Agreement. The notice Alcoa must give to an employee stating the proportional reduction in payments due under a modern award, an enterprise agreement or a contract of employment, must be worked out in accordance with the Act and R.3.21. The clear intention of the legislation is that each employee must be given a specific notice appropriate and relevant to their factual circumstances.
[61] I fully appreciate that this conclusion is not greatly convenient to the unions or Alcoa as several hundred employees, it would seem, are implicated within the potential scope of disputed application of the terms of the Agreement in relation to partial work bans in September 2009. However, I do not think it is possible to determine the dispute in relation to all of Alcoa’s employees who participated in the protected industrial action on the basis of a sample of the employees and supervisors involved in communication about the partial work bans. That concept would involve extrapolation from the evidence of a group allegedly representative of all employees. Whether or not all of the several hundred employees involved were given notices in accordance with the statutory requirements is something that cannot be answered on the evidence before me.
[62] A considerable part of the submissions filed by the parties was devoted to the requirements of the Act for Alcoa to give an employee a notice required by ss.471(4)(c) of the Act so as to have the effect of authorising the proportional reductions in payments due under the Agreement
[63] The logic of the requirement, to give an employee a notice it would seem, is that an employee is in a position to know how their imposition of a partial work ban will affect their remuneration and entitlements under a modern award, an enterprise agreement or a contract of employment.
[64] Having regard to the statutory context, it would have been a simple thing to authorise proportional reductions in payments due under a modern award, an enterprise agreement or a contract of employment, worked out in the manner prescribed by s.471(3) of the Act without the need for a notice. The jurisdiction of Fair Work Australia under s.472 of the Act to vary the amount of proportional reductions to ensure that such an amount is fair and reasonable need not have been affected accordingly.
[65] While I am hesitant to, and do not conclude that, the notice must be given to an employee before the commencement of the partial work ban, there is something of a prima facie case for considering this to be the intention of the statutory provisions.
[66] It will be observed that there are two types of notice contemplated by the statutory provisions in relation to partial work bans. The first is notice of refusal by an employer of part performance of the work of an employee, the second is acceptance and notice of proportional reductions of payments due under a modern award, an enterprise agreement or a contract of employment for part performance of that work. Under the statutory provisions, if no notice is issued where a partial work ban is implemented and work is performed accordingly the fact of the imposition of the partial work ban would not seem to give rise to any effect upon an employee’s entitlements prescribed by a modern award, an enterprise agreement or a contract of employment under the Act.
[67] There would therefore seem to be a temporal and reflexive aspect of the statutory requirement to give the notices prescribed. It is difficult to accept that the intention of the provisions is that an employer could give a notice a month after protected industrial action comprised of a partial work ban had ceased and proportional reductions of an employee’s entitlements under a modern award, an enterprise agreement or a contract of employment be effectively authorised by the statute. If this were a proper construction of the intention of the legislature the notices could be given at any time after the cessation of the protected industrial action. Indeed there would be no impediment to such notices being given 6 or 12 months, or even more, after the industrial action ceased.
[68] The relevant considerations are; the provision for “a notice”, which the employer is required to “give” to “an employee”; the requirement for specificity of the proportional reduction of amounts of payments due under a modern award, an enterprise agreement or a contract of employment, which must have been worked out in a prescribed manner. The requirements provide an opportunity for an employee to understand the consequences of imposing a partial work ban upon being given a notice. Moreover, it would seem the proportional reduction in such payments due cannot be made unless the notice has been given to an employee, regardless of the employee’s participation in the partial work ban.
[69] However, in light of the particular and detailed findings of fact I have arrived at concerning the employees who gave evidence and my approach to the meaning of the statutory provisions for the purposes of this decision, I do not think that it is necessary to reach any conclusion in respect of when the required notice must be given.
[70] I do not intend to fully summarise those aspects of the submissions addressed to legal authority concerning the meaning of the word “give” in relation to the giving of a “notice” to a person by another where it is used in the statutory context. I note that the unions relied on decisions of the Courts and Alcoa gave primacy to the ordinary meaning of the word “give”. I should say that I have given consideration to the decision of Justice French of the Federal Court of Australia, as he then was, in Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Henry Walker Eltin Contracting Pty Ltd 8While that decision is not directly on point in relation to the requirement to “give” “an employee” a notice, with great respect, I have found it informative.
[71] It is relevant to note that Alcoa does not submit that its actions comply with the provisions of ss.471(7)(a) and (b) of the Act. Alcoa did not do anything to give a notice to the employees’ bargaining agents. That the notice is not given in the manner prescribed by these provisions does not mean that a notice has not been given to an employee if, in fact, it has been given in another way which is consistent with the intention of the relevant statutory provisions. This is because of the inclusion of the words, “without limiting ss.1(c) or 4(c)”, in s.471(7) of the Act. It is useful to reproduce ss.471(7) and Regulation 3.24:
“471 Payments relating to partial work bans
...
Manner of giving notice
(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:
(a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and
(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.”
“3.24 Manner of giving notice about partial work ban
(1) For paragraph 471 (7) (b) of the Act, this regulation prescribes how the employer may give employees notice for paragraph 471 (1) (c) or (4) (c) of the Act.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee’s email address at work; or
(b) another email address nominated by the employee.
(5) The employer may fax the notice to:
(a) the employee’s fax number at work; or
(b) the employee’s fax number at home; or
(c) another fax number nominated by the employee.”
[72] Regulation 3.24 does not prescribe that the employer must give an employee a notice by one of the means detailed therein. The use of the word may is pertinent. However, on what is before me, none of the means to give an employee a notice set out in R.3.25(2) to (5) were used by Alcoa. The residual provision of R.3.24(1) is a compelling indication of what the intention of the legislature is in relation to how an employer would otherwise give an employee a notice under s.471 of the Act.
[73] In my view, it is not appropriate to void the clear requirement that the employer must “give” “a notice” to “an employee” personally, if other potential means specified by which an employer may give a notice to an employee are not utilised. To abolish that requirement would be to ignore the legislature’s discretely chosen formulation of the employer’s legal obligation in the particular provisions of the Act and frustrate the intention of the legislation as it applies in the relevant circumstances here and in circumstances where an employee has no bargaining agent or the employer ignores an employees’ bargaining agent.
[74] Moreover, only where proportional reductions in payments due under a modern award, an enterprise agreement or a contract of employment are made from an employees pay pursuant to a notice given by an employer under s.471 of the Act will an employee have a right to apply to Fair Work Australia for an order varying the amount of that reduction in payments. The function of the giving of the notice therefore becomes an important aspect of ensuring that an employee’s legal rights in the context of the relevant provisions are enabled fairly. This consideration reinforces my view that absent the means otherwise specified in the Act and the Regulation, the employer must present the notice personally to an individual employee whose legal rights under a modern award, an enterprise agreement or a contract of employment, and under the Act, will be affected by the notice.
[75] Moreover, it may be observed that the legislature has chosen a different formulation of the requirement to give an employee a notice in s.471 of the Act to that prescribed for the giving of a notice of employee representational rights in ss.173(1) of the Act. The relevant provisions of s.471 do not express the obligation to give an employee a notice such that the employer must “take all reasonable steps to give notice” to an employee. It is logical to assume that these different formulations have different meanings. One is more general and the other more specific. In the case of “a” notice given under s.471 of the Act the effect of the notice will be to alter an employee’s extant legal rights to payment under a modern award, an enterprise agreement or a contract of employment. This is a different thing than “notice” of a right to be represented in a bargaining process which may or may not result in an agreement to create new entitlements under a proposed enterprise agreement.
[76] Even if these considerations could be ignored and one was to approach the matter such that the statutory intention is that an employer is not required to actually give a notice to an employee by presenting it to the employee but merely to take what might be considered all reasonable steps to ensure that the notice was received by the employee, which I do not, for reasons explained further below, all reasonable steps must be considered to potentially require personal presentation of the notice. The operative consideration in this context is the word all. Moreover, the requirement to give an employee a notice should not be further watered down as if it is appropriate to take only “reasonable steps” to give “a notice” or “notice”. All reasonable steps to ensure that an employee receives a notice includes anything and everything which can be done to ensure that the employee has possession of the notice in the relevant circumstances. Applying this approach, there is no reason why a proper notice should not have been handed to an employee in the factual circumstances of this case, as a part of all reasonable steps to ensure that it is received and in the possession of an employee.
[77] Section 471 is a new legislative code. However, it is not without some provenance in the WR Act in relation to its subject matter and decisions of the courts and tribunals which developed around what has been described as an issue of “no work, no pay”. It is appropriate when considering how a notice is to be given to an employee in a particular case, (other than in accordance with the statutory prescription of when an employer will be taken to have given a notice,) to have regard to the statutory objects, the context of the relevant provisions and the intention of the legislature. The Explanatory Memorandum to the Fair Work Bill 2008 demonstrates an intention to deal with issues of flexibility in responding to partial work bans by employers and fairness to employees in relation to reductions in payments in respect of protected industrial action. Moreover, from my reading of s.3 of the Act, in particular sub paragraphs (1)(a) and (f), fairness and clarity in the circumstances under which protected industrial action is permitted by the Act are relevant Objects of the legislation.
[78] In the case of Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (First respondent) and Kentz E & C Pty Ltd (Second Respondent) 9, the Full Bench of Fair Work Australia was required to consider the operation of s.462(3) of the Act. In the course of their decision the Full Bench outlined the approach to be taken to the interpretation and application of provisions of the Act. The Full Bench stated:
“[21] In construing a provision of an Act, the task is to ascertain the intention of the parliament. The starting point is always the ordinary English meaning of the words of the provision. However, a provision of an Act must always be construed in the context of the Act as a whole and account must always be taken of the purpose of the Act: a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. 9 Resort may be had to extrinsic materials, including the explanatory memorandum, to assist in ascertaining the purpose of an Act (the mischief it was intended to overcome and its purpose or objects10) and in the particular circumstances identified in s.15AB of the Acts Interpretation Act 1901 which, relevantly for present purposes, include to determine the meaning of a provision when the provision is ambiguous.11
[22] In CIC Insurance Ltd v Bankstown Football Club Ltd 12 Brennan CJ, Dawson J, Toohey J and Gummow J observed:13
“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”
(footnotes omitted)
[23] In Project Blue Sky v Australian Broadcasting Authority 14 McHugh, Gummow, Kirby and Hayne JJ said:15
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
(footnotes omitted)”
[79] Having regard to the submissions of the parties and the relevant authorities, I consider that, in the circumstances of this case, in order to give a notice to an employee it was necessary to present an employee with the notice personally. The statutory concept is not, broadly, to give “notice” or provide “notification” to employees but rather that a specific notice is to be given to an employee. The notice in this context is a material object. In my judgment, leaving a notice on a lunch room table or on a notice board, of itself, is not sufficient to comply with what I consider to be the intention of the parliament for the giving of a notice provided for by s.471 of the Act to an employee. The ordinary meaning of the word give is to deliver freely, bestow, handover... The meaning of deliver is to give up or surrender, give into another’s possession or keeping. Bestow means to present as a gift, give10. The Shorter Oxford Dictionary defines “give” variously, however, I think the most appropriate definition is as to deliver, hand over; to deliver or hand (something) to a person; to commit, ensign, entrust11. Giving a notice to an employee in the relevant statutory context is, in my view, a different thing to making available or posting a notice or providing notification in a generalised sense. The requirement to “give” “a” notice to “an employee”, means an action of personal presentation by the employer of the notice to an employee for the possession of the employee.
[80] There is also good reason to believe that from a legal perspective the primary meaning of the word “give” is “the placing of a material object in the hands of another person;” the usual sense now, however, is that of freely and gratuitously conferring on a person the ownership of something as an act of bounty”. “Gives a receipt” means that the donee may keep it as his own. 12
[81] The statutory context is the authorisation of proportional reductions of amounts payable under a modern award, an enterprise agreement or a contract of employment. It must be contemplated that appropriate reductions will often depend upon highly specific individual circumstances. At the very least, the statutory modification of the terms of a contract of employment, by definition, will have an effect on an individual employee. There is no reason to believe that the legislature intended that an employee, whose terms and conditions of employment are governed by an enterprise agreement, should not be treated individually or not be given a notice discretely in relation to the modification of their legal entitlements to payments prescribed by the enterprise agreement and rights of review under s.472 the Act.
[82] In this case various classes of employees were involved in various types of protected industrial action comprised of partial work bans. In my view, in the relevant statutory context, a generic notice saying, for example, “to all electricians” will not necessarily suffice. The intention is that an individual employee should be given a notice and the notice specific to the payments to be reduced should be worked out in the prescribed manner and be relevant to the employee’s individual circumstances. Partial work bans may affect employee task performance and employment entitlements differently. Proportional reductions in payments prescribed by a modern award, and enterprise agreement or a contract of employment may depend upon many things in particular circumstances. Deductions may need to be worked out differently for different employees by force of s.471(3) of the Act and Regulation 3.21. In my view, this is why the statutory provisions prescribe that the employer must “give” “a notice” to “an employee” and requires specification of the amounts of proportional reductions in payments otherwise due to the individual employee under a modern award, an enterprise agreement or a contract of employment relevant to the employee.
[83] It is also appropriate to consider the nature of a partial work ban. In order to make such a ban manifest an employee will be present and performing work but not all work. The act of giving an employee a notice is, in this context, straight forward, and elementary. It is harmonious with the concept regulated by the statutory provisions particularly applicable to a partial work ban and the various ways which proportional reductions must be worked out in the manner prescribed by the Act and Regulation 3.21. There is nothing unreasonable or unfair in construing the statutory requirement such that an employee who is present and performing work, although not completely, is to be given a notice personally, by the employer.
[84] The statutory provisions allow for flexibility for the employer to accept partial performance of work and fairness to an employee to know if part performance will be accepted and the personal consequences of only performing part of their work for a relevant period. The situation is distinct from when an employee refuses to attend for performance of work at all or refuses to perform work. No notice of deductions of payments otherwise due to an employee is contemplated in such circumstances under s.470 of the Act. Quite likely, in these circumstances an employee will not be available to perform the work so that the employer could give an employee a notice. Notices pertinent to a partial work ban will be required where an employer decides whether or not to accept part performance of an employee’s duties. The intentions, presence, location and whereabouts of the employee will most likely be within the knowledge and contemplation of the employer when the decision is taken of whether to give a notice and if so which notice is to be given. That is because the employee fully intends to be present to partially perform work.
[85] In this case the giving of notices was delegated to a number of supervisors of various groups of employees. While there are some similarities in the actions taken by those supervisors the evidence discloses they did not act on all occasions in an identical manner. Indeed, as might be expected in a large workplace with numerous shift rotations, in which different types of employees work and which contains diverse areas of activities and functions, the circumstances of the comings and goings of employees and supervisors could possibly involve some variation depending upon the course of action adopted by those supervisors.
[86] Alcoa prepared three separate notices in order to inform employees who were members of the CEPU, AWU and AMWU of the reductions from payments under the Agreement which employees would incur as a result of participating in the partial work bans and in respect of other protected industrial action. The notice for CEPU personnel was based on a level 9 employee with a 17% base rate penalty. The notice for AWU personnel was based on a level 5 employee with a 44% base rate penalty. The notice for AMWU personnel was based on a level 9 employee with day shift penalties of 17%. These notices did not therefore cover all of the types of employees who were likely to participate in the protected industrial action or the diversity of their entitlement, under the Agreement. The notices were in effect particularly relevant to employees of the chosen levels.
[87] I have given consideration to the range of actions of the various supervisors of the different groups of employees in order to determine which of the employees was given a notice as required by s.471 of the Act. I have reached a conclusion in relation to each employee on my reading of the evidence. I do not intend to completely rehearse all of the evidence of the supervisors and employee’s concerned individually to explain my findings. Rather, I will set out my findings in relation to each employee as a table. I will, however, make some observations of a general nature which have guided my conclusions in relation to the evidence.
[88] In order to “give” an employee a notice as required by s.471(4) of the Act it must be presented to the employee personally and cannot simply be left in a location where they may or may not come across it. The relevant distinction is between providing notification to various persons by diverse and possibly impersonal and general means, and giving “a notice” to “an employee”, comprehended by the Act as a single individual to whom the notice is to be given. The relevant provisions of s.471 of the Act are directed to the circumstances of an individual employee and not to some general provision of information to employees.
[89] The requirements of s.471(1)(c) of the Act are that the notice must be specific as to a partial work ban and the proportional amount of a reduction of payment due under the Agreement is to be notified. The amount notified in relation to a partial work ban must be worked out in accordance with the requirements of Regulation 3.21. I think also this means that the notice cannot be a general notice except when the facts permit a single notice, where everything is the same for a group of employees. While facts specific to one employee may be common with another employee there is no reason to suppose a notice, to be effective, which is given to one employee will automatically be effective in relation to all employees or another, because of potentially differing factual circumstances.
[90] I reject the submission made by the employee organisations that unless an employee accepts a notice presented personally, the employee has not been given the notice. If a manager personally presented a notice to an employee and an employee knowingly refused the notice, I consider the notice to have been given. In the relevant context of the provisions of s.471(7) of the Act and Regulation 3.2.1 to do so would satisfy a requirement that the employer give the notice in accordance with the ordinary meaning of the word give. The giving over of the notice whether taken by the employee or not is the statutory obligation of the employer. The reciprocal refusal of the employee is irrelevant.
[91] On the other hand, if a manager were simply to refer to a notice verbally or advise an employee that a notice was available if required or an employee happened upon a notice left somewhere, I consider this will not meet the statutory requirement that the employer give a notice to the employee. In my view, it was necessary for Alcoa to present an employee with the notice personally. In the circumstances this also constitutes part of all reasonable attempts to ensure that the employee receives the notice in the circumstances of this case. The statutory test is not whether an employee fortuitously, accidentally or otherwise becomes aware of or came across information about intended proportional reductions in payments due under the Agreement or was verbally advised of the intention to make proportional reductions of some payments due. The statute imposes an obligation upon an employer to act in a particular way, that is, to “give” the employee the notice in a physical form so that the employee has the notice in their possession.
[92] In this case it is not necessary for me to consider other means by which an employer might be said to have given an employee a notice, such as by post or electronic communication. The notices which Alcoa prepared in relation to proportional reductions from payments due under the terms of the Agreement in respect of partial work bans were all in the form of the three exhibits which have been referred to above. Those notices are Appendices to the witness statements of several of the witnesses for Alcoa. Copies of the notices were made and distributed to various supervisors who were given instructions concerning questions to be asked of employees concerning participation in protected industrial action, and to make employees aware of intended proportional reductions from pay. Whether or not an employee was given a notice as required by s.471of the Act therefore depends on the actions of the particular supervisor and the circumstances of the employees in relation to the presentation of notice by those supervisors to employees, where that was done.
[93] If an employee were to be mistakenly given a notice which did not relate to their circumstances it is questionable whether the notice required by the statutory provisions would have been given. For example, if an electrician working night shift were to be given a notice relevant to the circumstances of a truck driver working day work in relation to the proportional reductions in payments under the Agreement worked out in accordance with s.471 of the Act and R.3.21 for participation in a partial work ban by a truck driver, it would seem that some conjunctive of facts would be necessary for the intention of the statutory provisions to have been fulfilled.
[94] From Table 3, which represents my findings in relation to each of the employees of Alcoa who gave evidence in this matter, it is clear that some employees were given notices. However, for the purposes of this decision I will not proceed to determine any issues concerning the appropriateness of any notice, except in relation to what will constitute a partial work ban in respect of which such notices can apply I will confine myself to the task of determining whether or not individual employees were given a notice concerning the operation of partial work bans under s.471 of the Act.
[95] Before turning to the evidence of the witnesses concerning disputed facts surrounding the actions of the company in relation to the giving of notices it should be observed that, for whatever reason, Alcoa did not make a record of individual employees having been given the notices required by s.471 of the Act. This is a significant omission which makes the determination of the relevant factual issues more difficult than it might otherwise have been. The omission is surprising in that a full record of the verbal interactions with employees concerning their participation in protected industrial action was kept. However, the company chose to have supervisors only record which employees had been asked if they were participating in the protected industrial action including partial work bans. The record included the answers of the employees to those questions if asked. It would seem a simple matter to have provided a column on that document in which the fact of an employee having been given a notice prepared for them could be recorded. I am therefore not inclined to accept that it is appropriate to infer that if an employee was asked whether or not they were participating in partial work bans it is inherently more probable than not that they were given a notice required by s.471(1) of the Act, particularly where an employee has given evidence to the contrary.
CEPU Witnesses
[96] I will begin by determining whether the witnesses of the CEPU were offered notices. Two witnesses gave evidence on behalf of the company in relation to the CEPU witnesses. The first of these was Mr David Stones.
[97] Mr Stones gave evidence in relation to his involvement in the process for the D shift Trades concerning their participation in the protected industrial action. Mr Stones gave evidence in relation to his involvement with approximately 10 employees. Those employees were not individually named in his evidence in chief. At paragraph 7 of his witness statement Mr Stones stated “when people replied “no comment” or didn’t respond, they were usually uninterested in the notices, so we left multiple copies in lunch rooms for people to read at later times. These answers were in response to the questions Mr Stones says were to be asked about the employees’ participation in the bans. It would therefore seem that where an employee answered the questions about their participation in partial work bans accordingly, Mr Stones did not systematically give the employees a notice, rather Mr Stones left notices in a lunch room in some circumstances.
[98] In his evidence in chief, Mr Stones testified that some employees took notices but many did not. At paragraph 1098 of the transcript of proceedings Mr Stone gave evidence that some employees responded to being offered a notice by saying “I don’t need that” or “it’s not worth the paper it’s written on”.
[99] Mr Stones’ witness statement was prepared by Freehills for Alcoa. I have every reason to believe that it was prepared with care, a high level of professionalism and precision of language, having regard to the issues in dispute. A close reading of Mr Stones statement will reveal that Mr Stones was not instructed to "give" each employee a notice, neither does Mr Stones say he gave certain employees a notice. His witness statement is to the effect that what he was required to do was to ask employees questions concerning their participation in protected industrial action and record the answers of individual employees and, to make employees “aware” of certain things concerning deductions from wages. In my view, Mr Stones witness statement cannot be conclusively relied upon for findings that all employees were given notices or that he offered each and every employee he spoke to a notice.
[100] Mr Stones’ evidence describes how he was instructed to deal with employees in relation to the conduct by them of protected industrial action generally and, as a part of that action, how to communicate with the employees in relation to partial work bans. Mr Stones' evidence is that he was to ask employees if they would be participating in the industrial action or "the bans" and to "make them aware" of the company's intentions in relation to deductions which would be made from wages. He claims he did so on numerous occasions by "offering" about ten employees either the notices which the company had prepared and distributed to the supervisors, referring to the availability of the notices, reading from the notices in a folder he carried or showing the notices to employees. It can be seen that it is not unreasonable to infer from this evidence that Mr Stones more likely than not made employees aware of the deductions in various ways, all of which did not necessarily involve giving a notice in accordance with the ordinary meaning of the word “give”. The probability that Mr Stones’ actions were variable and uneven is I think ultimately corroborated by the evidence of the various employees who gave evidence, as will be seen below.
[101] Mr Stones’ witness statement indicates that various circumstances eventuated when he went about carrying out his instructions to ask employees if they were participating in "the bans" and "making employees aware" of deductions which would be made in the event that employees did participate in "the bans", as he referred to the protected industrial action. There was some movement in Mr Stones' evidence between the concept of "making employees aware" of the information concerning the deductions and systematically offering notices to individual employees. I am therefore not entirely certain that Mr Stones’ evidence can be construed such that by providing employees with the relevant information in each case he attempted to present an employee with a notice. It should be remembered that Mr Stones was required to record an employee’s response to a question about participation in the industrial action, "the bans", however, there was no requirement upon Mr Stones to record having given a notice to an individual employee. His evidence is that he was to make employees aware of deductions from pay.
[102] Mr Glen Pasque also gave evidence in relation to his role in giving notices to employees of the AWU, AMWU and CEPU. Mr Pasque gave evidence that he communicated with various employees on a one to one and on a group basis. Mr Pasque gave evidence that before the protected industrial action started, the supervisors took copies of the notices around to all the lunch rooms to inform employees of the economic loss that they would personally incur for being involved in industrial action. Mr Pasque gave evidence that the supervisors had meetings at the start of each shift until all crews had been through the rotation. At paragraph 15 of his witness statement, Mr Pasque gave evidence that “we made sure to tell the EBA employees what the impact would be for participating in the bans and handed them a sheet outlining this”. At Paragraph 16 of his witness Statement, Mr Pasque stated that “as the bans went on day by day, it was more a case of asking employees at the beginning of each shift whether they were participating in the bans, rather than giving them the document”. Further, he gave evidence that some people refused to acknowledge the “sheets”.
[103] Mr Pasque’s evidence to the extent that it is to be construed that each and every employee was individually given a notice is directly contradicted by a number of the union witnesses.
[104] I will now go through the evidence of each of the union witnesses in turn and outline whether or not I find that Alcoa did give that person a notice. However, before embarking on this discussion it is appropriate to observe that the witnesses who gave evidence for the three unions are but a small sample of employees who participated in protected industrial action in September 2009. The object of the union or organisation was to prove that employees generally had not been given notices in the manner provided for by s.471(1) of the Act. It would not be surprising if the selection of the witnesses was not random but rather was directed to present the best possible evidence of a case where an employee may not have been given notice. I say this because I consider, on the evidence before me as a whole, it seems likely that of the several hundred employees who participated in the protected industrial action it is more probable than not that there were employees who were given notices and employees who were not. It is not possible, in my view, to conclude that all of the several hundred employees who participated in the partial work bans were not given notices. Nor is it possible to conclude that each of those employees were not given a notice or that each employee was given or received a notice. The evidence in my view bares this out as will be shown below.
[105] I find that Mr Joseph Spitiri was not given a notice. Mr Spitiri gave evidence that he was not offered a notice. Mr Stones was unable to recall witnessing the giving of a notice to Mr Spitiri. Mr Spitiri also gave evidence that a Mr Van Der Horst had accompanied Mr Stones when Mr Stones was asking employees whether they were participating in the bans on occasions. Mr Van Der Horst was not called to give evidence. At paragraph 1231 of the transcript of proceedings, Mr Spitiri gave evidence that he “didn’t see Mr Stones until the second day, not the first one. When I asked what all this was about he explained to us - first of all, he asked whether we were going to take part in the bans limitations ... He didn’t really mention much about deductions of pay or anything like that”.
[106] I find that Mr Sean McGrath was not given a notice. Mr McGrath gave evidence that he was not offered a notice or document. Mr Stones did not give specific evidence that Mr McGrath had been offered a notice. Mr McGrath gave evidence that a Mr David Ettrige had accompanied Mr Stones when Mr Stones had asked questions about who was participating in the bans. The Company did not call Mr Ettrige. Mr Stones’ evidence mentioned above is evidence of making employees aware of the deductions from pay by various means including offering employees notices. I prefer the evidence of Mr McGrath because he was in a better position than Mr Stone to remember whether or not he had personally been given a notice.
[107] I find that Mr Steven Walters was not given a notice. Mr Walters gave evidence that he was not given a notice or notified of deductions. However, he was aware that the company intended to make deductions from employee’s wages because he had found documents left in the lunchroom. Mr Walters gave evidence that Mr Paul Carrol and Mr Kerr-Nelson had asked him whether or not he was participating in the bans. Neither of these persons were called by Alcoa to give evidence. I therefore accept the evidence of Mr Walters that he was not given a notice.
[108] I find that Mr Russell Taylor was given a notice. Mr Taylor gave evidence that he was not given a notice. At paragraph 439 of the transcript of proceedings, Mr Pasque gave evidence that he witnessed Mr Stones hand Mr Taylor a notice. I accept that Mr Stones more probably than not offered some employees a notice as part of his process of making employees aware of the deductions from pay. Mr Taylor accepted that he had had a conversation with Mr Pasque about deductions, but denied he had been given a notice. On balance, I find that Mr Taylor was given a notice.
[109] I find that Mr Andrew Fratantaro was given a notice. Mr Frantantaro gave evidence that he did not remember whether or not notices were left on the table in front of him. At Paragraph 439 of the transcript of proceedings, Mr Glenn Pasque gave evidence that he put a notice down on the table in front of Mr Fratantaro. Mr Pasque gave evidence that Mr Fratantaro was not interested in or willing to take the notice but that it was left in front of him. This evidence of Mr Pasque is not substantially contested by that of Mr Fratantaro.
[110] I find that Mr Andrew Debooy was not given a notice. Mr Debooy gave evidence that he was not given a notice. At Paragraph 450 of the transcript of proceedings, Mr Pasque gave evidence that he did not have a clear memory of whether Mr Debooy was given a notice in the manner that other employees were. Further, at paragraph 477 he gave evidence that he does not recall if Mr Debooy was in the first full rotation of employees whom the notices were said to have been offered. According to Mr Cotter’s evidence, Mr Debooy was present at a meeting at the time of the commencement of the bans at which Mr Glen Harris showed a group of four employees a notice. Mr Harris was not called to give evidence. Mr Debooy does not refer to this meeting in his witness statement. He gave evidence that Mr Harris did not give him any notice, but remembers that discussions took place regarding deductions. Whilst Mr Debooy was in the room according to Mr Cotter’s evidence, he was not cross examined on what happened during that meeting and in particular, if he was offered a notice at that time. I therefore accept the evidence of Mr Debooy.
[111] I find that Mr David Little was not given a notice. Mr Little gave evidence that Mr Stones did not try to give him a notice. Mr Little gave evidence that he was working on night shift with Mr Richard Berejcha. At the start of that shift he was approached by David Stones and a supervisor he believed to be Mr Warwick Peel, and Mr Stones asked him whether or not he was participating in the bans. At paragraph 10 of his witness Statement Mr Little recalls Mr Stones was holding a folder but he did not provide Mr Little with any documents or attempt to give him any notice. During evidence in chief, Mr Little was asked whether he recalled Mr Stones stating to people that there would be deductions from their pay. Mr Little replied that Mr Stones stated that there was a “sheet” on the table and that Mr Stones did not refer to him at this point. Mr Little was also asked whether he was to take the “sheet" or whether he was offered that sheet Mr Little stated that Mr Stones had asked him whether he was aware of the bans that were in place and that he had said “no comment”. When the question was put to him again in the terms “Did Mr Stones say ‘take this sheet’?” Mr Little replied that he did not. In cross examination Mr Little gave evidence that, at that time, there was no discussion about a notice. He gave evidence that there was a document on a table at one point but that it did not refer specifically to his circumstances. Mr Peel was not called to give evidence. Mr Stones’ evidence as referred to above is a memory of making employees aware of the deductions from pay by various means and as a plurality, those means do not seem to uniformly involve the handing over of a notice. I prefer the evidence of Mr Little because, in my view, he was in a better position than Mr Stones to remember whether or not he had personally been given a notice.
[112] I find that Mr Paul Cotter was not given a notice. Mr Cotter gave evidence that he had not been offered a notice. He gave evidence that Glenn Harris and Mr David Stones asked him whether he was participating in the bans but that neither of them had given him notice or had asked him to take one. Mr Cotter gave evidence about a meeting at the commencement of one of his shifts in which Glen Harris and either David Stones or Glen Pasque asked employees, including himself, if the employees were participating in the bans. Mr Debooy, Mr Josh Richardson and Mr Brian Rankin were also present. At paragraph 11 of his statement he recalls that Mr Harris “showed us a document which looked like one which had been distributed previously in the lunchrooms” (emphasis added). Mr Harris did not provide each of us with a copy or ask us to take one. On other days, Mr Craig Kerr-Nelson, Mr David Stones or Mr Glen Pasque would go through the same process as Mr Harris had. “At no stage did any other members of management provide me with a notice”. At paragraph 477 of his evidence, Mr Glenn Pasque gave evidence that he did not remember whether Mr Cotter was given a notice, and further, whether or not Mr Cotter was in the first full rotation. Mr Harris was not called to give evidence. At paragraph 1512 of the transcript of proceeding Mr Cotter testifies that he did not recall conversations about deductions with Mr Stones. Further, he did not recall any notice being given out where Mr Pasque was present. He recalls that Mr Harris verbally explained that there would be deductions to pay, but did not describe what the deductions were. During cross examination Mr Cotter reiterated that Mr Harris showed him a document “he just sort of put it up”. When questioned whether he took the document Mr Cotter said “no”. There is a difference between showing a notice to an employee by holding it up and giving it over by hand or attempting to. Mr Harris is said to have held the notice up. Mr Harris was not called to give evidence. I find that Mr Cotter’s evidence is consistent with Mr Harris not attempting to give the notice to Mr Cotter. I therefore prefer the evidence of Mr Cotter.
[113] I find that Mr Neil McKenzie was not given a notice. Mr McKenzie gave evidence that he told Mr Stones that he was participating in the bans, but that Mr Stones had not given him a notice. He also gave evidence that he does not recall any discussions about deductions. Mr Stones did not give any specific evidence in relation to giving Mr McKenzie a notice. I therefore prefer the evidence of Mr McKenzie as he was in a better position than Mr Stones to remember whether or not he was personally given a notice.
[114] I find that Mr Peter Carty was not given a notice. Mr Carty gave evidence that he had not been given a notice by Mr Rogers or Mr Pasque. Mr Rogers was not called to give evidence. Mr Pasque does not give specific evidence as to whether or not Mr Carty was personally given a notice. I therefore prefer the evidence of Mr Carty as he was in a better position than Mr Pasque to remember whether or not he was personally given a notice.
[115] I find that Mr Wade Sechtig was given a notice. Mr Sechtig gave evidence that he was not handed any document. At paragraph 442 of the transcript of proceedings Mr Pasque gave evidence that in a room of four or five maintenance people “I remember one person took a sheet. There could have been others. We handed them around and I’m not exactly sure who took it, but I remember one person taking the sheet and reading it while we were talking through it”. At paragraph 444 of the transcript of proceedings Mr Pasque identified the person who took the sheet as Mr Sechtig. Mr Sechtig took a notice and started asking questions about how much his pay would be deducted. Mr Pasque’s evidence is clear and specific. I prefer the evidence of Mr Pasque.
[116] I find that Mr Peter Gratton was given a notice. Mr Gratton gave evidence that “at no time did Stones give me a notice”. At paragraph 6 of his witness statement Mr Stones gave evidence that he remembers Mr Gratton being aggressive and unhappy about the fact that money was going to be deducted. At paragraph 1120 Mr Stones gives evidence that he does not specifically recall handing Mr Gratton a notice. At paragraph 1121 Mr Stones recalls having a discussion with Mr Gratton about the content of a notice he had because Mr Gratton was a Level 10 employee and the notice specified the deductions for a Level 9 employee. Mr Stones gave evidence that the reason he did not remember specifically whether Mr Gratton was given a notice was because at that time, Mr Chalmers was also present, and being particularly aggressive. In that situation, Mr Chalmer’s aggression stood out to Mr Stones’ memory. Mr Stones gave evidence that he could not tell Mr Gratton how much he would be deducted off the top of his head, but made an email enquiry to Linda Craven in that regard. That email was marked DS-1 and attached to Mr Stones’ witness statement. On balance, having regard to the conversation which referred to the content of the notice, I consider it more likely than not that Mr Gratton was given a notice. It is inherently more probable that Mr Gratton’s dispute over the deductions arose because he was given a notice and was able to fully understand its context. However, the notice did not relate to his classification Level.
[117] I find that Mr Robert Martin was not given a notice. Mr Martin gave evidence that neither Van Der Horst or Mr McDonald gave him a notice or attempted to give him a notice. Neither Mr McDonald or Mr Van Der Horst were called. I therefore accept the evidence of Mr Martin as it is not substantially contested.
[118] I find that Mr John Fagan was not given a notice. Mr Fagan gave evidence that he is certain that no one gave him a notice or attempted to give him a notice. At paragraph 2589 he gave evidence that the evidence of Mr Stones was incorrect. The evidence of Mr Stones, as outlined above, is a memory about the making employees aware of deductions from pay by various means including offering employees notices by hand, as a plurality. I prefer the evidence of Mr Fagan as he was in a better position than Mr Stones to recall whether or not he was personally offered a notice. His evidence is more specific and certain.
AWU Witnesses
[119] Mr John Herron and Ms Ursula Carlson gave evidence in relation to their roles in the giving of notices to employees relating to the deductions to be made for participating in partial work bans.
[120] Mr John Herron gave evidence in relation to 14 C shift employees and two ancillary employees who were members of the AWU. At paragraph 6 of his witness statement Mr Herron gave evidence that he attempted to arrange individual meetings with these employees in a small neighbouring office with the help of another supervisor, Mr Steve Ginoski. He gave evidence that the employees were not happy to go into an office on their own and rang a union delegate. At paragraph 8 of his statement, Mr Herron stated that “as a result of this, instead of setting up an office, I just walked around their workstations and asked them “are you supporting the bans and limitations, understanding that if you do, you’re going to lose all of these penalties?” At paragraph 9 Mr Herron recalls that during the first few shifts after the bans started I handed out some notices, but some operators handed them back to me and said “I’ve got it”. He also gave evidence that it was his understanding that the company had sent notices to employees’ homes and put them in lunch rooms. At paragraph 12 of his witness statement Mr Herron gave evidence that no employees took the notices that he offered at the beginning of subsequent shifts. At paragraph 14 of his statement, Mr Herron stated that on subsequent shifts “I still met with every employee individually to ask them whether they were following the bans. I did this because I was concerned that some individuals might have a different opinion that they did not want to raise in front of the rest of the crew”. The tone of Mr Herron’s evidence indicates that he participated in a general process of enquiry after employee participation in the bans which may or may not have resulted in individual employees being given notices by him.
[121] Ms Ursula Carlson gave evidence in relation to D shift employees. Ms Carlson gave evidence at paragraph 9 of her witness statement that she offered notices to employees but “hardly got rid of any of them”. At paragraph 664 of the transcript of proceedings, Ms Carlson gave evidence that she “had heaps of copies in my hand with some other papers” and they said they got them supplied already... They just looked at the date and said “if it’s that version, we already have it”. She gave evidence that some people had taken the notice but she cannot remember how many. At paragraph 647 of the transcript of proceedings Ms Carlson stated “I know I had them and offered them especially on the first day, not later deliberately to everybody”. At paragraph 674 she gave evidence that she could not remember who she gave a notice to. As with Mr Herron, and consistent with there being no requirement for the giving of notices to individual employees to be recorded, the tenor of Ms Carlson’s evidence is of general distribution of notices which may or may not have resulted in each employee being given a notice.
[122] I find that Mr Kelvin Brewer was notified. In paragraph 8 of his witness statement, Mr Brewer stated that “Mr Herron did not try to give me a partial work ban notice, or try to tell me about deductions that would occur as a result of the bans. However, at paragraph 716 - 717 Mr John Herron denied that Mr Brewer had not been offered a notice. At paragraph 717 he stated ‘I made a point of making sure I went around and spoke to everybody and give everyone the opportunity to hand out - to receive the bans/limitations notes. ... The typical reply from the crew was that you don’t need to give us that notice’. I took that on board, but then later on, thinking that individuals might not want to have that same point of view, independently I made sure that I went around and spoke to individuals. I did that with Kel.” During cross examination Mr Reilly asked whether Mr Herron handed out a notice to Mr Brewer. Mr Herron stated that he “absolutely made attempts to hand out notices to every employee”. At paragraph 754 Mr Reilly put the question to Mr Herron again: “Do you specifically recall offering the notice to Kelvin Brewer?” Mr Herron replied “yes”. I prefer the evidence of Mr Herron.
[123] Mr Kelvin Brewer also gave evidence in relation to a survey he had undertaken with other A and C Shift employees. Mr Brewer asked employees on A and C shift whether or not they were given notices. That table was marked KB-1 and attached to Mr Brewer’s witness statement. Mr Brewer gave evidence that he entered the information in KB-1 onto the computer from notes and memory. He gave evidence at paragraph 1732 - 1733 that “I spoke to most of them, yes, probably 99 or - probably all of them, yes”. “No. Is it all of them or most of them?” --- “I spoke to all of them, yes”. He said of the 19 employees surveyed, no employees were offered a notice. This table is set out below:
Table 1
Name | Given Notification | Accepted | Declined |
M Keikkla | Not offered | ||
P Lagoudakis | Not offered | ||
J Reekie | Not offered | ||
D Treble | Not offered | ||
M Willigen | Not offered | ||
V Uzunovski | Not offered | ||
D Oshannessy | Not offered | ||
M Burns | Not offered | ||
R Lower | Not offered | ||
D Walmsley | Not offered | ||
G Rown | Not offered | ||
P Edsall | Not offered | ||
T Boyle | Not offered | ||
R Hazel | Not offered | ||
K Brewer | Not offered | ||
T Higgins | Not offered | ||
C Leney | Not offered | ||
P Cooper | Not offered | ||
D Woods | Not offered | ||
A Hudson | Not offered | ||
T Murner | Not offered | ||
C Stannard | Not offered | ||
R Bennett | Not offered | ||
K Wright | Not offered |
[124] I am not prepared to accept this table as prima facie evidence in relation to the giving of the notices or otherwise to the employees listed. My reason for this is because, on the totality of the evidence before me, it seems most inherently probable that a number of employees among the 300 who participated in the partial work bans, were given notices. It may well be that all of the named employees in the table above were not given notices. However, in order to make a conclusive judgment it would be necessary for those employees to give evidence and be cross examined. However, this evidence although hearsay and not sufficiently probative in relation to the circumstances of all of the employees in the table not being offered a notice seems to fortify, to a limited extent, my overall viewpoint that more probably than not the situation was highly contingent and that some employees were given notices and some were not.
[125] I find that Mr James Harper was not given a notice. Mr Harper gave evidence that he was not offered a notice. At paragraph 707 Mr Herron gave evidence that he did not give Mr Harper a notice as Mr Harper was not working C shift. Ms Craven also gave evidence in relation to Mr Harper. Ms Craven gave evidence (around paragraph 262) that she “can’t verify that Mr Herron did or did not give Mr Haprer a notice but as he was participating in straight stoppages he didn’t need a notice.” Ms Craven did not give Mr Harper a notice. I accept the evidence of Mr Harper as it is not substantially contested by the evidence of the company.
[126] Mr Harper also gave evidence in relation to other AWU members. Mr Harper gave evidence that he surveyed 34 AWU members about whether or not they were given notices. Mr Harper entered this information in a table which was marked JH-1 and attached to Mr Harper’s witness statement. That table is reproduced below:
Table 2
Name | Given Notification | Accepted | Declined |
B Dahlstorm | Offered | y | |
G Volke | Offered | y | |
D Bechaz | Offered | y | |
L Linguey | Offered | y | |
C Fitzgerald | Offered | y | |
G Faulmann | Offered | y | |
M Brian | Not offered | ||
M Pavlinek | Offered | y | |
F Borracci | Offered | y | |
A Grant | Offered | y | |
T Duncan | Not offered | ||
B Gravett | Not offered | ||
S Robinson | Not offered | ||
B Banks | Not offered | ||
A Hartigan | Not offered | ||
S Jacobs | Not offered | ||
T Cantwell | Offered | y | |
P McColl | Not offered | ||
T Birch | Can't remember being offered | ||
A Williamson | Offered | y | |
P Bourke | Offered | y | |
D Collett | Not offered | ||
S Richmond | Not offered | ||
T Bennett | Not offered | ||
C Walter | Offered | y | |
S Orokity | Not offered | ||
J Cooper | Offered | y | |
S Williamsom | Not offered | ||
B Minnett | Not offered | ||
T Helman | Not offered | ||
G Laughnan | Not offered | ||
N Brown | Not offered | ||
D Ward | Not offered | ||
M Swain | Not offered |
[127] I am prepared to accept Mr Harper’s testimony as prima facie evidence as to who of the abovementioned employees surveyed were offered a notice. The uneven responses are not inconsistent with the inherent probability already remarked upon and is sufficient for the purpose of a prima facie finding.
[128] I find that Mr Gary Holmyard was not notified. Mr Holmyard gave evidence that Mr Eric Pedler and Mr Peter Carpenter were involved in asking employees on his shift (A shift) whether they were participating in the bans. He gave evidence that Pedler “did not give me a notice or tell me my pay would be reduced”. Neither Mr Pedler or Mr Palmer were called by the company to give evidence. I therefore accept the evidence of Mr Holmyard.
[129] I find that Mr Terrence Bennet was not given a notice. Mr Bennet gave evidence that no one asked him if he was involved in the industrial action and no one gave him a notice. Ms Ulla Carlson gave evidence at paragraph 669 that “I don’t even know if I was ever on the plant when he was working”, and at paragraph 673, “I don’t know if I gave Terrence Bennet a notice”. Further, Mr Bennet’s answer recorded in Mr Harper’s Survey supports a conclusion that Mr Bennet was not given a notice. The evidence of Mr Bennet is not contested by any evidence called by the company. I therefore accept Mr Bennet’s evidence.
[130] I find that Mr Phillip Bourke was given a notice. Mr Bourke gave evidence that he was offered a notice by Ms Carlson and that he told her not to bother. He gave evidence that he was not offered a notice during any subsequent shift. Mr Bourke’s answer recorded in Mr Harper’s survey supports that Mr Bourke was given a notice. I find that the company gave Mr Bourke a notice.
[131] I find that Ms Sandra Ryan was not given a notice. At paragraph 4 of her witness statement, Ms Ryan gave evidence that “prior to the bans, paperwork outlining the amounts we may be docked if we took industrial action appeared in our lunchrooms. Those did not appear to be legitimate documents before they were not given to us in any formal way and they did not have any signatures”. At paragraph 6 Ms Ryan stated that “at no time during the bans was the abovementioned documentation or anything like it handed personally to me or members of my designated work crew”. Ms Ryan gave evidence that Mr Max Kemp and Mr Aaron Baulch asked employees where they were participation in the bans. She also gave evidence that Mr David Jacobs had been involved in asking her crew whether they were participating in the bans. Mr Dave Jacobs gave evidence that he participated in asking employees whether they were participating in the bans and discussed with them the implications of participating in the bans. Mr Jacobs gave evidence that notices that explained how pay would be deducted if employees participated in the bans were handed out to the operators. However, Mr Jacobs did not provide any evidence which specifically related to Ms Ryan. Neither Mr Kemp nor Mr Baulch gave evidence. I therefore accept the evidence of Ms Ryan.
[132] I find that Ms Karen Wright was not given a notice. Ms Wright gave evidence that Mr Herron did not offer her a notice. Ms Wright gave evidence that she found a notice on the lunchroom floor and made subsequent enquiries relating to the document she found with the Fair Work Ombudsman. Ms Wright also gave evidence that she prepared a document to inform her colleagues about the information concerning deductions she had come across and put several copies in the lunchroom. At paragraph 713 Mr Herron disputed the evidence of Ms Wright, stating of her evidence that “that would be incorrect”. Mr Herron’s evidence is based on a collective memory of giving the notice to “employees” generally. Ms Wright’s answer recorded in Mr Brewer’s evidence supports that Ms Wright was not given a notice. Further, Ms Wrights actions, including the making of enquiries with the Fair Work Ombudsman and preparing her own notice to inform her colleagues about the deductions, is consistent with not having been given a notice by Alcoa but inadvertently coming across a notice on a lunch room floor. This evidence is particular, detailed and in the circumstances a more convincing account. I prefer the evidence of Ms Wright.
AMWU Employees
[133] I find that Mr Andrew Scott was not given a notice. Mr Scott gave evidence that Warwick Peel did not offer or attempt to offer him a notice. Mr Scott gave evidence that he had been approached by Warwick Peel and David Stones regarding whether he was participating in the bans. Mr Peel was not called to give evidence. Mr Stones gave evidence that he did not interact with Scott on the first couple of shifts when making employees aware of deductions from pay by various means including offering employees notices, and at paragraph 1165 gave evidence that he did not give Mr Scott a notice. I therefore accept the evidence of Mr Scott.
[134] I find that Mr Mark Ginn was not given a notice. Mr Ginn gave evidence that he was on leave until the day before the partial bans ceased. He gave evidence that no one offered him or attempted to offer him a notice. At paragraph 1165 Stones gave evidence that he did not serve a notice on Mr Ginn. The evidence of Mr Ginn is not contested.
[135] I find that Mr Travis Gannon was not offered a notice. Mr Gannon gave evidence that he was never offered a notice. Mr Gannon gave evidence that he had interactions with Mr Craig Kerr-Nelson, Mr David Stones, Mr Glenn Harris and Mr Dennis McDonald. At paragraph 1169 Mr David Stones gave evidence that he did not serve a notice on Gannon. The company did not call any other of the abovementioned persons other than Mr Stones to give evidence.
[136] I find that Mr Shane Richardson was not given a notice. Mr Richardson gave evidence that a supervisor approached him and asked questions from a set list regarding whether he was participating in the bans. Mr Richardson could not remember which supervisor approached him on the first day. Mr Richardson stated that a supervisor, Mr Kerr-Nelson, made no attempt to give him any kind of notice on all the occasions that Mr Kerr-Nelson asked him questions about the bans. Mr Nelson was not called to give evidence by the company. Mr Richardson also gave evidence that he was near Mr Paul Cotter at the time Mr Cotter said that he was shown a notice. Mr Richardson gave evidence that he did not see Mr Cotter being shown a notice.
[137] The evidence above is summarised and my conclusive findings are shown in the following table:
Table 3
Witness | Union | Notified |
Mr Joseph James Spitiri | CEPU | No |
Mr Sean Paul McGrath | CEPU | No |
Mr Steven John Waters | CEPU | No |
Mr Russel Taylor | CEPU | Yes |
Mr Andrew Fratantaro | CEPU | Yes |
Mr Andrew Robert Debooy | CEPU | No |
Mr David Allen Little | CEPU | No |
Mr Paul Auther Cotter | CEPU | No |
Mr Neil James McKenzie | CEPU | No |
Mr Peter Julian Carty | CEPU | No |
Mr Wade Noel Sechtig | CEPU | Yes |
Mr Peter Alan Gratton | CEPU | Yes |
Mr Robert William Martin | CEPU | No |
Mr John Charles Fagan | CEPU | No |
Mr Kevin John Brewer | AWU | Yes |
Mr Gary James Holmyard | AWU | No |
Mr Terrence James Bennett | AWU | No |
Mr Phillip Edward Bourke | AWU | Yes |
Mr James Harper | AWU | No |
Ms Sandra Michelle Ryan | AWU | No |
Ms Karen Maree Wright | AWU | No |
Mr Andrew Robert Scott | AMWU | No |
Mr Mark Leonard Ginn | AMWU | No |
Mr Travis Gannon | AMWU | No |
Mr Joshua Shane Richardson | AMWU | No |
Proper characterisation of partial work bans and effects of notices on the terms of the Agreement
[138] It is necessary to consider the application of s.471 of the Act to partial work bans in certain circumstances. Section 470 deals with what constitutes a partial work ban for the purposes of s.471 of the Act and has been set out above. Not all protected industrial action will be properly characterised as a partial work ban.
[139] There are also conditions precedent in s.471 of the Act additional to the requirement to give an employee a notice which must exist so that the giving of a notice changes the effect of the terms of a modern award, an enterprise agreement or a contract of employment. The consideration is that an employee to whom an employer does give a notice has “engaged in industrial action” and that the industrial action was a “partial work ban”.
[140] When determining whether or not an employee engaged in industrial action it is important to consider the statutory intention and purpose of s.471 of the Act. A statement or expression of an intention to take industrial action in the form of a partial work ban is not comprehended by the provisions of s.471 of the Act as a basis for a proportional reduction in amounts payable under the terms of a modern award, an enterprise agreement and a contract of employment. The Explanatory Memorandum to the Fair Work Bill 2008 confirms this. 13
[141] A notice given to an employee of Alcoa, pursuant to s.471(1) of the Act, will only have legal effect in authorising proportional reductions in amounts payable under the Agreement where an employee actually engages in protected industrial action comprising a partial work ban. That is to say, if any threatened or intended protected industrial action in the form of a partial work ban does not become manifest then a proportional reduction in payments required by the Agreement, which may be the subject of a notice given to an employee in the manner required by s.471 of the Act, is not authorised.
Overtime bans
[142] It will be observed that under s.470(3) of the Act a partial work ban will not include an overtime ban. Conjecture is possible over whether an overtime ban can be a partial work ban given that there is no positive definition of a partial work ban in the Act. Whilst the term ‘partial work ban’ is included within s.4, definitions, of the Act, no definition follows and the provisions of s.4 of the Act then refers to s.470(3) of the which is set out below:
“(3) A partial work ban is industrial action that is not:
(a) a failure or refusal by an employee to attend for work; or
(b) a failure or refusal by an employee who attends for work to perform any work at all; or
(c) an overtime ban.
[143] Hence, a partial work ban is industrial action that is, among other things, not an overtime ban.
[144] However, the proper construction of s.470 of the Act must take into account the inclusion of subsections (4) and (5) which have discrete legislative history. That history is somewhat convoluted and is the source of subsection (5) of s.470 of the Act and is dealt with at paragraphs 160 and 161 of the Supplementary Explanatory Memorandum to the Fair Work Bill 2008. I have given consideration to the legislative history of the provisions and despite some potential ambiguity arising from the history of subsections (4) and (5) I conclude that it was not the intention of the legislature to characterise an overtime ban as a partial work ban in any circumstance. Rather, in my view, there is a clear conceptual distinction between a refusal to work overtime which is required or rostered to be worked and a partial work ban.
[145] A partial work ban is comprised of a situation where an employee is ready, willing and able to perform some but not all of their duties during a period that they are required to be at work, either by hours of rostered attendance or by some specific direction. In this sense it can be understood that a partial work ban can apply during a period of overtime. An overtime ban is a refusal to perform any work which an employer requires and directs an employee to perform beyond the ordinary hours of work and which would, in the particular circumstances, constitute overtime.
[146] There is an issue of some complexity in relation to the subject of overtime bans in this matter. The terms of the Agreement provide for an amount to be payable to employees in respect of overtime which may be required of them. The amount is payable even if the employee is not required to work overtime.
[147] In this case, construing the statutory provisions in the context of Division 9 of Part 3–3 of the Act and having regard to the intention of the legislature, Alcoa is prohibited by s.470 of the Act from making payment for work which is overtime where an employee is requested to perform that overtime work and refuses to do so.
[148] If an employee is paid an amount for being prepared to work overtime and is requested to work an amount of overtime accordingly and refuses to do so, I think Alcoa must not make the payment prescribed by the Agreement for such overtime because of the provision of s.470. The terms of the Agreement in relation to payment for overtime have no operation.
[149] If an employee worked a period of overtime required by the employer and did not perform the full range of duties during that period the situation would not comprise an overtime ban. In these circumstances the employee would be engaging in protected industrial action in the form of a partial work ban during the period of overtime worked. The scheme of the Act is that a proportion of the amount payable for the overtime, worked out in the manner prescribed by the Regulation, could be deducted from the payments due under the terms of the Agreement for the overtime so worked, if the requirements of s.471(1) of the Act are met.
[150] The effect of subsections 470(4) & (5) are further explained in the Fair Work Bill 2008 - Explanatory Memorandum. Paragraphs 1867 & 1868 read as follows:
“1867. The general prohibition on paying strike pay under subclause 470(1) does not apply in relation to a period of overtime, unless the employee refuses to work a period of overtime they are requested or required to work in contravention of a term of an applicable modern award, enterprise agreement or contract of employment (subclause 470(4)). This means that payments cannot be withheld under this clause in relation to an overtime period that the employee is entitled to refuse to work (e.g., under a relevant instrument or the NES) or where the employee was not rostered to work or otherwise requested to work. For example, a term of an enterprise agreement might allow an employee to decline a request to work overtime on the ground of family responsibilities. If an employee declines to work overtime and complies with that term, the prohibition on the payment of strike pay will not apply because the employee has not engaged in industrial action.
1868. Subclause 470(5) provides that, for an overtime ban, the duration of the action is taken not to extend beyond the period of overtime to which the ban relates (subclause 470(4)). Therefore, payments must only be withheld for a period when the employee would otherwise have been working overtime (subject to subclause 470(4)). So, for example, if the industrial action is an overtime ban of two hours on a day, the total duration of the action is two hours.”
[151] Interestingly, s.470(4) was the subject of an amendment made by the Senate providing further context to the operation of an overtime ban under subsections (4) & (5) of the current Act. At the time of the first reading of the bill, there was no subsection 470(5). Subsection 470(4) appeared as follows:
“(4) To the extent that the industrial action is an overtime ban:
(a) this section does not apply, in relation to a period of overtime to which the ban applies, unless:
(i) the employer requested or required the employee to work the period of overtime; and
(ii) the employee refused to work the period of overtime;
(iii) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment; or
(b) if paragraph (a) does not apply—the duration of the industrial action is taken, for the purposes of this section, not to extend beyond the period of overtime to which the ban relates.
[152] As noted in the Fair Work Bill 2008 - Supplementary Memorandum at paragraph 150, the amendment to strike pay provisions sought to ‘clarify [the] operation of the rules about deduction of pay in the context of overtime bans and partial work bans’. Paragraphs 160 & 161 made further comments:
“Non-payment for overtime bans
Item 17 – Subclause 470(4)
160. This item is a technical amendment that restructures subclause 470(4) of the FW Bill (that deals with protected overtime bans) to make its operation clearer. That subclause provides that a deduction may only be made under the provisions in relation to ‘a period of overtime to which the ban applies’ (i.e., a period of overtime an employee is required or requested to work, but refuses to work because of the imposition of protected overtime bans). This means that no deductions may be made from ordinary time earnings.
161. Additionally the prohibition on the payment of strike pay does not apply if the employee refuses to work overtime under an applicable modern award, enterprise agreement or contract of employment. For example, a term of an agreement might allow an employee to decline a request to work overtime on the ground of family responsibilities. If an employee declines to work overtime and complies with that term, the prohibition on the payment of strike pay does not apply because the employee has not engaged in industrial action.
[153] What is set out above appears to clarify the context and duration for which an overtime ban will be deemed industrial action. While a partial work ban relates to a refusal or failure of an employee to perform certain tasks or functions which form a part of their work, an overtime ban on the other hand, as its name suggests, deals with a refusal or failure of an employee to work one or more overtime periods rostered or required and in contrast is not in the nature of part performance of the work of an employee.
[154] The protected industrial action approved of by a majority of Alcoa’s employees and authorised by their organisations as required by the Act included overtime bans. For a notice given under s471 of the Act to authorise a proportional reduction in payments due under the Agreement in relation to overtime, certain factual circumstances would be necessary. The necessary circumstances would be that employees worked a period of overtime but did not perform the full range of duties as a partial work ban.
[155] The proper construction of the statutory provisions lead to a conclusion that an overtime ban per se is not a partial work ban, to which s.471 of the Act applies. Accordingly the operation of the terms of the Agreement would not be affected by notices given to employees in relation to overtime bans under s.471(1) of the Act. Rather the provisions of s.470 of the Act apply. Payment in relation to overtime required to be worked by employees of Alcoa but refused by them as part of the protected action in September 2009 is prohibited by s.470 of the Act.
[156] Where an employee is paid an amount to be prepared to work overtime and the overtime is not required, there is no overtime ban to which s.470 of the Act applies. Moreover, if no overtime is required to be worked there can have been no partial work ban. The requirement for the payment provided for by the terms of the Agreement in both circumstances is unaffected by either s.470 or s.471 of the Act.
[157] My findings in relation to whether particular forms of protected industrial action can be treated as partial work bans in respect of the notices given to the named employees can be found in table appendices which are attached.
[158] In order to determine if the terms of the Agreement are affected by the operation of s.471 of the Act by notices given to employees by Alcoa under the provisions of that section, it is necessary to consider if an employee has been given a notice and whether the notice requirements have been satisfied as per the statutory provisions. Where an employee is given a notice which is about industrial action which is not a partial work ban the notice will not give rise to proportional reductions in payments due under the Agreement. The notice will not affect a change in the terms of the Agreement in accordance with the operation of s.471 of the Act.
[159] For reasons which will be explained below, I conclude, on what is before me, that some, but not all, of the protected industrial action scheduled in the notices established, in respect of which deductions from pay are stated is comprised of partial work bans within the meaning of s.471 of the Act.
[160] I set out in Appendix 1 the Exhibits of the notices Alcoa prepared and add a Column marked FWA alongside the description of the protected industrial action appearing in the table. The column FWA shows either “yes” or “no” indicating that I find either affirmatively or negatively that the protected industrial action so described is a partial work ban within the meaning of the relevant statutory provisions.
[161] I will issue a determination in accordance with this decision. I will allow the parties an opportunity to address the form of that determination.
COMMISSIONER
Appearances:
Mr Patrick Reilly appeared for Australian Workers’ Union
Mr Patrick Larkins appeared for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Ms Elizabeth McGrath appeared for Australian Manufacturing Workers’ Union
Mr Nicolas Ogilvie appeared on behalf of Alcoa Australia Rolled Products Pty Limited
Hearing details:
2009
9 October
27 November
Melbourne
2010
22 April
23 April
Geelong
Final written submissions:
Mr Nicholas Ogilvie on behalf of Alcoa Australia Rolled Products Pty Limited, 27 May 2010
Mr Patrick Reilly on behalf of Australian Workers’ Union, 18 June 2010
Ms Elizabeth McGrath on behalf of Australian Manufacturing Workers’ Union, 18 June 2010
Mr Geoff Borenstein on behalf of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 18 June 2010
ALCOA ARP POINT HENRY - 16 SEPTEMBER 2009
EBA UPDATE FOR AWU PERSONNEL
From ARP POINT HENRY MANAGEMENT
Further to our communication of 7 August 2009 the bans, limitations and work stoppages commenced 16 September 2009 (‘the partial work bans’) will incur the following penalties:
Based on Level 5 Salary $90,328 with an hourly rate of $41.43 | ||||
AWU | Daily time for allocated duty | $ deducted from salary per shift | $ deducted from salary over pay cycle | FWA |
Work bans - employees shall refuse to participate in all daily management meetings including scheduling | 0.5 hours | $20.72 | $145.01 | Yes |
Ban on data input - employees shall refuse to input date for MES/scale checks/crucible weights/scrap additions and alloy additions | 1.5 hours | $62.15 | $435.02 | Yes |
Six hour stoppage - an unlimited number of stoppages of the performance of all work for 6 hours including consecutive periods | 6 hours | $248.58 | $248.58 | No |
Twenty-four hour stoppages - an unlimited number of stoppages of the performance of all work for 24 hours, including consecutive periods | 12 hours | $497.17 | $497.16 | No |
Work within crews - employee shall not perform the following tasks: no participation in crew management or labour allocation. No supervision of the workforce within crews. No running of crew meetings | 2 hours | $82.86 | $580.02 | Yes |
These equate in a full pay cycle to the following loss of earnings for a Level 5 Operator (44% penalties):
Stop all DMB, scheduling indefinately effective Wed 16 | $145.01 |
Stop all data input for MES, scale checks, crucible weights, scrap and alloy additions indefinately effective Wed 16 | $435.02 |
Stop all crew mgmt, labour allocation, supervision of workforce and running crew meetings indefinately effective Wed 16 | $ - |
6 Hours indiustrial Action | $248.58 |
TOTAL | $828.61 |
This notice will take effect from 00:00 HRS on 17 September 2009 and will remain in operation until the end of the day on which the partial work bans cease.
ALCOA ARP POINT HENRY - 16 SEPTEMBER 2009
EBA UPDATE FOR AWU PERSONNEL
From ARP POINT HENRY MANAGEMENT
Further to our communication of 7 August 2009 the bans, limitations and work stoppages commenced 16 September 2009 (‘the partial work bans’) will incur the following penalties:
Based on Level 9 Salary - Day Shift Penalties of 17% only = $82,860 equals hourly rate of $39.83 | ||||
AMWU | Daily time for allocated duty | $ deducted from salary | FWA | |
An unlimited number of bans on employees performing work outside their rostered shifts | No | |||
Specific Area Equipment Managers will not work outside their departments to support other departments/areas | Of 17% loading 70% will be takes for removal of flexibility | $161.70 | per week | Yes |
An unlimited number of bans on the use of communication devices | Yes | |||
No attendance at meeting except for safety meetings | 2 hours | $79.66 | per day | Yes |
An unlimited number of stoppages of work for the duration of 6 hours including consecutive periods | 6 hours | $238.98 | per instance | No |
An unlimited number of strikes for the duration of 24 hours including consecutive periods | 8 hours | $318.64 | per instance | No |
An unlimited number of bans on the input of data into computers | 1.5 hours | $59.75 | per day | Yes |
An unlimed number of bans on overtime | 3 hours overtime in SIP payment | $119.49 | per week | No |
These equate in a full pay cycle to the following loss of earnings for a Level 9 Maintenance person (17% penalties loading and working 10 days per fortnight):
Bans on meetings except safety | $796.60 |
Bans on overtime | $238.98 |
Ems not to work outside of their areas | $ - |
Bans on the use of communication devices | $323.40 |
Bans on data input into computers | $597.50 |
6 hours industrial action | $238.98 |
TOTAL | $2,195.46 |
This notice will take effect from 00:00 HRS on 17 September 2009 and will remain in operation until the end of the day on which the partial work bans cease.
ALCOA ARP POINT HENRY - 16 SEPTEMBER 2009
EBA UPDATE FOR AWU PERSONNEL
From ARP POINT HENRY MANAGEMENT
Further to our communication of 7 August 2009 the bans, limitations and work stoppages commenced 16 September 2009 (‘the partial work bans’) will incur the following penalties:
Based on Level 9 - Day Shift Penalties of 17% only = $82,860 equals hourly rate of $39.83 | ||||
ETU | Daily time for allocated duty | $ deducted from salary | FWA | |
An unlimited number of bans on employees performing work outside their rosetered shifts | Of 17% loading 70% wil be takes for removal of flexibility | $161.70 | per week | No |
Specific Agrea Equipment Managers will not work outside their departments to support other departments/areas | Yes | |||
An unlimited number of bans on the use of communication devices | Yes | |||
No attendance at meeting except for safety meetings | 2 hours | $79.66 | per day | Yes |
An unlimited number of stoppages of work for the duration of 6 hours including consecutive periods | 6 hours | $238.98 | per instance | No |
An unlimited number of strikes for the duration of 24 hours including consecutive periods | 8 hours | $318.64 | per instance | No |
An unlimited number of bans on the input of data into computers | 1.5 hours | $59.75 | per day | Yes |
An unlimited number of bans on overtime | 3 hours overtime in SIP payment | $119.49 | per week | No |
These equate in a full pay cycle to the following loss of earnings for a Level 9 Maintenance person (17% penalties loading and working 10 days per fortnight):
Bans on meetings except safety | $796.60 |
Bans on overtime | $238.98 |
Ems not to work outside of their areas | $ - |
Bans on the use of communication devices | $323.40 |
Bans on data input into computers | $597.50 |
6 hours industrial action | $238.98 |
TOTAL | $2,195.46 |
This notice will take effect from 00:00 HRS on 17 September 2009 and will remain in operation until the end of the day on which the partial work bans cease.
1 Paragraph 1 of the Form 1—No Specified Form
2 Section 471(s) of the Fair Work Act 2009.
3 [2000] 203 CLR 645.
4 Ibid at 657-658.
5 [2009] AIRCFB 368.
6 Ibid at paragraph 24.
7 University of New South Wales v National Tertiary Education Industry Union [2009] AIRCFB 571.
8 [2004] FCA 1274
9 [2010] FWAFB 6021.
10 The Macquarie concise dictionary.
11 The Shorter Oxford Dictionary, Third Edition, Volume I, A Markworthy.
12 Stroud’s Judicial Dictionary of Words and Phrases, Greenberg, D, Volume 2: F - O, Sweet & Maxwell, 2006.
13 r. 311 of the Fair Work Bill 2008: Explanatory Memorandum
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