The Australian Workers' Union v Alcoa World Alumina Australia Limited

[2015] FWC 1607

[2015] FWC 1607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Alcoa World Alumina Australia Limited
(C2014/6693)

COMMISSIONER WILLIAMS PERTH, 16 MARCH 2015

Application to deal with a dispute - jurisdiction.

[1] This matter concerns an application made by the Australian Workers’ Union (the AWU or the applicant) under clause 19−Dispute Resolution Procedure of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 [AE407184] (the Agreement). The respondent is Alcoa World Alumina Australia Limited (Alcoa or the respondent).

Background

[2] Mr Softley was employed by Alcoa between 16 June 2008 and 19 December 2014.

[3] On 24 September 2014 Alcoa issued Mr Softley with a letter which confirmed that Alcoa had decided to terminate Mr Softley’s employment and that if a dispute was raised in relation to the decision within the timeframe contemplated by the Agreement Mr Softley would continue to receive normal pay and entitlements until the determination of the matter but if a dispute was not raised, the termination of employment would be effected at 5.00 p.m. on Tuesday, 7 October 2014.

[4] The entitlement to continuation of normal pay and entitlements whilst the dispute is determined is provided for in clause 18−Disciplinary Procedures subclause (c) of the Agreement.

[5] The AWU initiated a dispute regarding Mr Softley’s proposed termination on 24 September 2014 in accordance with clause 18(f) of the Agreement.

[6] A Fourth Stage meeting was held under clause−19 Dispute Resolution Procedure in relation to the dispute on 1 October 2014. The dispute was not resolved at this meeting.

[7] The AWU then made a form F10 – Application for the Commission to deal with a Dispute in Accordance with a Dispute Settlement Procedure on 8 October 2014.

[8] A Commission conciliation conference was held on 10 November 2014 in an attempt to resolve the dispute.

[9] Mr Softley’s employment was terminated by Alcoa effective 19 December 2014 by letter of the same date.

[10] The AWU seeks for the Commission to arbitrate the dispute over Alcoa’s intention to dismiss Mr Softley however Alcoa argue there is no jurisdiction in this instance because the AWU, being the initiator of the dispute for the purposes of clause 19 of the Agreement, did not refer the dispute for arbitration within 14 days of conciliation as required by the Fifth Stage of the dispute resolution procedure in clause 19.

[11] The Fifth Stage of the dispute resolution procedure in clause 19 of the Agreement in the column headed “Timeframes”says:

“If the initiating party decides to pursue the dispute to arbitration, then the initiator of the dispute must refer the dispute for arbitration in the FWC within 14 days of conciliation, otherwise this dispute is withdrawn from the dispute resolution process and is considered resolved.”

[12] This decision deals with this jurisdictional issue only.

[13] The issues to be determined by the Commission are:

1) Was the AWU able to refer the matter to arbitration at the conclusion of the conciliation conference that was held on 10 November 2014?

2) Did the AWU refer the matter to arbitration at the conclusion of the 10 November 2014 conciliation conference?

Recusal application

[14] The afternoon before the hearing of this matter the AWU wrote to the Commission in the following terms:

“We refer to the above matter which is listed for jurisdictional hearing tomorrow morning at 10:00am and request that you urgently but respectfully bring this letter to the attention of Commissioner Williams.

It is apparent from the written evidence and submissions of the parties that the main fact in issue at the jurisdictional hearing will be whether the AWU referred the matter for arbitration at the end of the conciliation conference that was held on 10 November 2014.

As Commissioner Williams convened and attended the conciliation conference, he was present when the events occurred that are the subject of dispute. Accordingly the Commissioner is likely to have information that is relevant to the issue in dispute and therefore is in a position akin to that of a potential witness.

Accordingly and with the greatest respect, we invite the Commissioner to consider the following:

1) Whether in view of the position the Commissioner has been placed in, and as a matter of fairness to the parties, the jurisdictional hearing listed for 29 January 2015, be vacated and instead listed for a further conciliation conference. This is so the Commissioner can share with the parties his recollection of what relevantly transpired at the conclusion of the conciliation conference on 10 November 2014.

Alternatively the jurisdictional hearing be vacated to enable the Commissioner to, through you, convey his recollection in writing to the parties.;

2) In the alternative we submit, that the Commissioner recuse himself from the hearing of the jurisdictional matter due to the difficulties inherent in the position he finds himself in.”

[15] The respondent the same day replied rejecting the applicant’s proposals.

[16] The matter proceeded as listed and at the commencement of the hearing the Commission advised that having inspected the file of this application the Commission had identified two pages of handwritten notes which were the Commission’s notes taken at the conference on 10 November 2014 and that there were notations therein potentially relevant to these proceedings. Copies of the two pages of notes were provided to both parties and the parties were provided with an opportunity to cite the original notes.

[17] The relevant notation at the bottom of the second page was:

“- Not resolved
- Applicant to consider if arbitrate.”

[18] The hearing was adjourned for the parties to consider this information.

[19] Following the adjournment the AWU chose to press their application for the Commission to recuse itself arguing that a fair-minded layperson looking at the circumstances of this matter would perceive that there would be a reasonable apprehension of bias. Alcoa in reply opposed the application for the Commission to recuse itself.

[20] A Full Bench of the Commission has recently summarised the principles regarding apprehended bias in the case of Construction, Forestry, Mining and Energy Union v Fair Work Commission [[2014] FWCFB 1443] as follows,

“[33] The test to be applied in relation to disqualification by reason of the appearance or apprehension of bias (including by way of prejudgment) is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide ” . That test is derived substantially from the test set out in the High Court's judgment in Livesey v The New South Wales Bar Association. In Livesey, the High Court said, at paragraphs 299-300, “... each case must be determined by reference to its particular circumstances”.

[34] In Laws v Australian Broadcasting Tribunal, Gaudron and McHugh JJ dealt with the issue of prejudgement, deciding:

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”

[35] Their Honours continued:

“Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected [(1969) 122 C.L.R., at p. 554] the notion that a fair and unprejudiced mind was ‘necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it’. In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said [(1980) 55 A.L.J.R., at p.14; 32 A.L.R., at p. 51] that the evidence did not justify ‘a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind’.” (Endnotes omitted)

[21] In this matter then I am required to consider whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of Alcoa’s jurisdictional objection to this application proceeding.

[22] The AWU’s argument is based it seems exclusively on the fact that the Commission as presently constituted chaired the conciliation conference on 10 November 2014 and so in their words was a potential witness to the relevant events. Further the AWU say the notation made by the Commission at that time reinforces their concerns that the Commission will not bring an impartial or unprejudiced mind to the determination of this issue.

[23] Whilst this is certainly an unusual situation there is nothing in the AWU’s submissions that demonstrates that the actions or statements of the Commission as presently constituted or the particular facts here would cause a fair-minded lay observer to apprehend that the Commission might not bring an impartial or unprejudiced mind to the determination of this matter.

[24] In my view the circumstances here do not give rise to a reasonable apprehension in a fair-minded lay observer that I might not bring an impartial and unprejudiced mind to the determination of this application. I am not satisfied I should disqualify myself and consequently I will proceed to hear and determine the jurisdictional objection of Alcoa.

Submissions

The respondent

[25] The term of the Agreement relevant to this jurisdictional hearing is set out in the Methodology column for Stage 5 of clause 19 of the Agreement (Arbitration Referral Timeframe).

[26] The Arbitration Referral Timeframe contains new requirements inserted into the 2014 Agreement, the purpose of which is to avoid protracted delays in the progression of disputes referred to the Commission.

[27] The Arbitration Referral Timeframe specifically provides as follows:

“Conciliation or, if necessary, arbitration as applied for by the initiating party.

In the initiating party decides not to pursue the dispute to arbitration, then the initiating party must notify the respondent of the cancellation of the dispute in writing within 14 days.

If the initiating party decides to pursue the dispute to arbitration, then the initiator of the dispute must refer the dispute for arbitration in the FWC within 14 days of conciliation, otherwise this dispute is withdrawn from the dispute resolution process and is considered resolved.”

[28] The respondent submits the correct interpretation of the Arbitration Referral Timeframe is that:

a) if conciliation is unsuccessful, there is a positive obligation on the initiator of a dispute, or their agent, to take action to apply for arbitration, by referring the dispute for arbitration in the Commission within 14 days of conciliation;

b) the phrase ‘within 14 days of conciliation’ means not more than 14 days after or following the conciliation conference, as conducted by the Commission, concluding, not including the day of the conference; and

c) if that positive obligation is not met, the Arbitration Referral Timeframe provides an unambiguous default position, that a dispute is automatically withdrawn.

because:

a) Such interpretation is consistent with the principles of interpretation for industrial agreements given that the words of the Arbitration Referral Timeframe are clear, unambiguous and do not lend themselves to an alternative interpretation.

b) There is nothing in the surrounding circumstances to the Agreement to provide any support to a claim of ambiguity in the meaning or effect of the Arbitration Referral Timeframe. To the contrary, anything which could be taken from the surrounding circumstances supports the interpretation contended by the respondent.

c) Such interpretation allows for a sensible industrial outcome because:

(i) on the one hand, the initiator of a dispute has 14 days, being an objectively reasonable amount of time, to refer a dispute to the Commission for arbitration should conciliation fail; and

(ii) on the other hand, the problematic issue of disputes being unduly delayed through delays in referring disputes for arbitration can be avoided and the respondent to a dispute is afforded finality.

d) Recourse to extrinsic material (beyond consideration of industrial context and surrounding circumstances) is not permitted given that the words of the Arbitration Referral Timeframe are clear and unambiguous.

e) The previous conduct of the parties is an irrelevant consideration for the purposes of interpreting the Arbitration Referral Timeframe.

[29] By 25 November 2014, that is the day after the expiry of the Arbitration Referral Timeframe, the dispute was automatically withdrawn.

[30] At that time there was nothing to prevent the respondent from implementing its decision of 24 September 2014.

[31] Further, at that time there was nothing the applicant or Mr Softley could do to enliven the dispute.

[32] There is no requirement as to when that right had to be exercised by the respondent.

[33] Mr Softley suffered no prejudice from any delay by the respondent in effecting the termination of his employment, because he continued to receive his full pay and entitlements until the termination of employment was effected.

[34] With respect to evidence of the comments of the Commission at conciliation those comments, that it would be some months before the Commission would get to the dispute, were made in a without prejudice context. Further, they were clearly indicative comments of the likely timeframe for arbitration which was a relevant consideration for the applicant when making further decisions regarding the dispute.

[35] There was no discussion of an actual listing of the matter, the parties’ unavailable dates or a statement to the effect that an email asking for unavailable dates or that the matter would be scheduled in due course.

[36] In the circumstances, the respondent submits the Commission should conclude that it no longer has jurisdiction to deal with the dispute under section 739 of the Fair Work Act 2009 (the Act), on the basis that it is limited by the terms of the clause and the Application should be dismissed.

The applicant

[37] The relevant part of clause 19 of the Agreement reads as follows:

“Conciliation or, if necessary, arbitration as applied for by the initiating party.

...

If the initiating party decides to pursue the dispute to arbitration, then the initiator of the dispute must refer the dispute for arbitration in the FWC within 14 days of conciliation, otherwise this dispute is withdrawn from the dispute resolution process and is considered resolved.”

[38] On a plain reading of clause 19 of the Agreement, the AWU was able to refer the matter to arbitration at the conclusion of the 10 November 2014 conciliation conference.

[39] The jurisdictional argument raised by Alcoa seems to be that the words “within 14 days of conciliation” should be read to not include the day of the conciliation conference.

[40] If this is Alcoa’s argument then it is, with all due respect, inconsistent with the plain meaning of those words.

[41] The word “of” is defined in the Macquarie Concise Dictionary 6th Edition as meaning:

a) “distance or direction from, separation, deprivation, riddance, etc: within a metre of; to cure of”; and,

b) “inclusion in a number, class, or whole: one of us”.

[42] It is also industrially sensible for the Commission to interpret the meaning of the words “within 14 days of conciliation” as enabling the initiator of the dispute to refer the matter for arbitration at the conclusion of an unsuccessful conciliation conference. As the Commission would be well aware, as a matter of custom and procedure in this jurisdiction, it is not unusual for disputes that are unresolved at conciliation to be referred to arbitration at the conclusion of a conciliation conference.

[43] If the parties had intended that clause 19 of the Agreement operate to not allow a dispute to be referred to arbitration at the conclusion of a conciliation conference they would have instead used words to the effect of “within 14 days after the day of conciliation”.

[44] The AWU is of the view that it referred the dispute to arbitration at the conclusion of the conciliation conference that was held on 10 November 2014.

[45] The resolution of this question is a factual issue that requires a consideration of the evidence.

[46] Mr Softley’s evidence is that he recalls his legal representative Mr Timothy Kucera (Mr Kucera) asking for the case to be referred to arbitration.

[47] Mr Softley also recalls that Mr Kucera’s request was followed by this exchange between Mr Kucera and the Commission:

Commissioner: “Can this matter be dealt with at the same time as the other matter I am dealing with?”

Kucera: “No this matter will need to be dealt with separately.”

Commissioner: “It will be quite some months before we can get to this.”

[48] The applicant submits the conduct of the parties subsequent to the conciliation conference is also relevant. Mr Softley has given evidence of the following post-conciliation conduct by the parties and the Commission:

a) On 1 December 2014, Alcoa’s representatives, at proceedings before Workcover, acknowledged the existence of the proceedings in the Commission;

b) Following the conciliation conference, Mr Softley and his representatives continued to act in a manner that was consistent with the dispute having been referred to arbitration;

c) On 3 December 2014, the Commission enquired about the availability of the parties in order to schedule a hearing for the arbitration. It is submitted this indicates that the Commission was also proceeding on the basis that the matter had been referred for arbitration.

d) Alcoa did not dismiss Mr Softley until 19 December 2014, some 39 days after the conciliation conference; and

e) Alcoa did not make the decision to dismiss Mr Softley until after it received the Commission’s email dated 3 December 2014.

[49] The AWU submits that the Commission should find that:

a) the AWU referred the dispute to arbitration at the conclusion of the conciliation conference; and

b) the Commission has jurisdiction under section 739 of the Act to arbitrate the dispute.

Consideration

[50] With respect to the first question it is clear and I agree with the respondent considering the words in the Agreement, that there is an obligation on the initiator of a dispute to take positive action to advise the Commission that it wishes to refer the dispute for arbitration.

[51] The respondent’s interpretation of this provision however has the effect, if accepted, that the initiator of the dispute, the maker of the application to the Commission, cannot advise the Commission and the respondent at the conclusion of a conciliation conference whilst the parties and the Commission are all still present, that they do wish to have their application arbitrated.

[52] Further on the respondent’s interpretation the applicant would not be able to later on the same day after a conference had been held advise the respondent and the Commission that they wish the matter to be arbitrated.

[53] Specifically the respondent’s interpretation would require an applicant to wait until the start of the day after the conference had been held before it could exercise its right to notify the respondent and the Commission that it wished for the dispute to be arbitrated. An interpretation that imposes this constraint on applicants is in my view a highly artificial one. It is not apparent from the context of the Agreement that these words were intended by the parties to mean that an applicant is prevented from advising the respondent and the Commission on the same day a conference is held that they wish the matter to be arbitrated.

[54] As the respondent argues this provision is to prevent protracted delays in disputes being progressed.

[55] I reject the respondent’s interpretation and agree that the words of the Agreement do allow an applicant to advise the respondent and the Commission at the conclusion of the conciliation conference, or later that same day, that they wish to have their application proceeding to be arbitrated by the Commission.

[56] The second question to be determined is whether or not the AWU in this particular instance referred the matter to arbitration at the conclusion of the 10 November 2014 conciliation conference. Implicit in this question is a concession by the AWU that after the conference on 10 November 2014 the AWU as the initiator of the dispute did not take any positive action to advise the Commission that it wished to refer this dispute for arbitration.

The evidence

[57] The evidence of Mr Softley in his witness statement 1 is that at the conciliation conference on 10 November 2014 his legal representative, Mr Kucera, asked for the case to be referred to arbitration.

[58] In his evidence in chief he was asked by his legal representative the following questions and answered as follows:

“Paragraph 89 you said you recall that Kucera asked for the case to be referred to arbitration?---Yes.

Do you remember the words that Kucera used?---Yes, I do. It came clearly after it was - the Commissioner stated clearly about the Crew 3R rehab crew case that was going on at the same time. The Commissioner did ask that did Tim Kucera want to put that in conjunction with that case and Tim Kucera replied, “No, it’s a totally separate case”. So that’s what I can remember out of that.

When that conversation was going on, what was your understanding of what was happening?---My understanding was that we would be going to a Commission hearing based just on my case as it was.”  2

[59] As was demonstrated in cross-examination Mr Softley in his witness statement recites specific statements he remembers were said by the Commission at the conference and specific replies by Mr Kucera but has no memory of what words Mr Kucera said when he apparently asked for the case to be referred to arbitration.

[60] In addition under cross-examination it became clear there was an inconsistency between Mr Softley’s oral evidence and his witness statement as to whether Mr Kucera had asked for the case to be referred to arbitration before or after the Commission had enquired as to whether the matter could be appropriately heard in conjunction with the hearing of other applications that were concerned with other employees on the rehabilitation crew. 3

[61] Under re-examination the following question and answer was given regarding specifically what Mr Kucera (Tim) said at the conference:

“In cross-examination you were about to say what it is you think Tim said and you were cut off. What is it that you recall Tim saying?---Following the Commissioner’s previous conversation, Tim clearly said we will need it to be referred for another hearing, a separate hearing.” 4

[62] My impression of Mr Softley as he gave his evidence was that he does not remember exactly what Mr Kucera said, if indeed he said anything positively about referring the matter to arbitration. His evidence was clear however, that Mr Kucera explained at the conference that a hearing of his application would need to be separate from any hearing of other applications concerning other employees on the rehabilitation crew. This statement by Mr Kucera on Mr Softley’s own evidence was a response to the Commission asking whether a hearing of this application could be dealt with at the same time as the hearing of other matters the Commission was dealing with which also involved Alcoa and Mr Kucera. It may be that Mr Softley has misunderstood this exchange between the Commission and Mr Kucera as demonstrating that his application had been referred to arbitration when in fact the explanation from Mr Kucera that a separate hearing of this application would be necessary was information that informed the Commission’s advice to the parties as to how long in the future any hearing of this matter would be held which was information provided to assist the applicant in deciding what future actions to take with this application.

[63] I accept that Mr Softley may well have left the conference with the understanding that the matter was to proceed to an arbitrated hearing but even if that is the case that does not determine whether or not at the conclusion of the conference the initiator of the dispute had positively referred this application for arbitration.

[64] Mr Softley’s positive recollection that Mr Kucera had at the conference asked for the case to be referred to arbitration is in conflict with the evidence of Ms Schraven and Mr Morrish.

[65] Ms Schraven has regularly attended conferences before the Commission. Her evidence was that the conciliation conference on 10 November 2014 was unsuccessful in resolving the dispute and whilst the Commission foreshadowed a timeframe for the matter if it proceeded to a hearing there was no discussion on any actual listing dates or the availabilities of the parties or to the effect that an email asking for unavailable dates or scheduling the matter would be sent in due course. Her evidence was that there was no action to be taken by Alcoa until such time as the matter was referred to arbitration by the initiators of the dispute.

[66] Ms Schraven’s evidence under cross-examination was that she did not remember any of the particular exchanges at the conference regarding potential hearing arrangements between the Commission and Mr Kucera. She was positive in her evidence that the conference concluded without Mr Kucera positively requesting the matter be referred for arbitration. Finally her evidence was that following the conference Alcoa proceeded on the understanding that the applicant was considering whether or not to pursue the matter to arbitration.

[67] The evidence of Mr Morrish was that he had attended a number of conferences in the past although these from his memory had all been ones where the issue had been resolved at conciliation. His recollection was that the conciliation conference on 10 November 2014 concluded on the basis that Mr Softley and Mr Kucera would thereafter consider whether to proceed with the dispute and that they would provide advice to that effect. His evidence in chief on this point is set out below:

“You say there that the conference concluded on the basis that Mr Softley and Mr Kucera would advise whether they wished to proceed with the dispute?---That’s right.

Why do you say that?---My recollection of the ending of that conference is that it was not determined, the next steps. I think it was laid out that there was a choice that Mr Softley was able to make, so that was laid out by the Commissioner regarding next steps. It talked about general time frames that may be encountered in these sorts of situations. It talked over a number of matters, a bit about - you know, if it was to proceed to the next step then that would be on the public record and he needed to take that into consideration. So, in my mind, it was quite clear that there was a choice to be made by Mr Softley and that was how the conference finished.”  5

[68] Mr Morrish under cross-examination says he did not recall Mr Kucera advising at the conference that they wanted the matter to be referred to arbitration.

[69] In terms of other evidence it is clear that the Commission’s file notes are indicative of the initiators of the dispute not having referred the matter to arbitration at the conclusion of the conference.

[70] Having reviewed all of the evidence as to what occurred towards the end of the conference that was held on the 10 November 2014 the majority of evidence supports the finding on the balance of probability that the initiator of the dispute, the AWU and their representatives, did not at the end of the conference positively refer this application for arbitration by the Commission.

Conclusion

[71] The questions to be determined by the Commission and the answers to these questions are set out below:

1) Was the AWU able to refer the matter to arbitration at the conclusion of the conciliation conference that was held on 10 November 2014

The answer is “yes”.

2) Did the AWU refer the matter to arbitration at the conclusion of the 10 November 2014 conciliation conference?

The answer is “no”.

[72] The respondent’s jurisdictional objection to this substantive application being determined by the Commission and arbitration is upheld. This application can proceed no further and will now be dismissed.

[73] An order will be issued to that effect in conjunction with this decision.

COMMISSIONER

Appearances:

C. Fogliani, solicitor for the applicant

W. Milward, representative for the respondent

Hearing details:

2015.

Perth:

January 29

 1   Exhibit A1 at paragraph 87 to 93.

 2   Transcript at PN280 to PN282.

 3   Ibid., at PN332 to PN358.

 4   Ibid., at PN501.

 5   Ibid., at PN206 to PN207.

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