Wilmar Sugar Pty Ltd v Australian Workers' Union - [2024] FWC 1767

[2024] FWC 1767

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.424—Industrial action

Wilmar Sugar Pty Ltd
v
Australian Workers’ Union;
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union; and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2024/821)

DEPUTY PRESIDENT DOBSON

BRISBANE, 4 JULY 2024

Application to suspend or terminate protected industrial action (endangering life etc) - s.424 threatened, impending or probable – significant damage to an important part of the Australian economy - application granted – orders issued – written reasons

On 30 June 2024, I made orders under s.424 of the Fair Work Act 2009 (Cth) suspending certain protected industrial action because I was satisfied firstly that the action was “threatened, impending or improbable”[1] and has, is or would threaten[2] “to cause significant damage to the Australian economy or an important part of it.”[3]

I now provide my detailed reasons.

The Application has been made by Wilmar Sugar Pty Ltd (Wilmar/the Applicant) against the three unions with which it has been bargaining for a new enterprise agreement: The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU/ETU) and the Australian Workers’ Union (AWU) (collectively the Respondents).

On 25 June 2024, Wilmar applied for orders under s.424 of the FW Act. Wilmar claimed that the looming industrial action threatened to cause significant damage to the Australian economy or an important part of it. Wilmar sought orders to suspend the protected industrial action for a period of three months. Wilmar has 8 mills at which it says they have experienced delays:
a)     Inkerman
b)     Macknade
c)     Proserpine
d)     Victoria
e)     Invicta
f)     Kalamia
g)     Pioneer
h)     Plane Creek

Permission to Appear

Section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

All of the parties sought leave to be represented before the Commission by a lawyer and none made any objections to the other. I shall not traverse the submissions made in any great detail, but I was satisfied that granting leave would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (which included the requirement that the matter be dealt with expeditiously by statute)[4] and granted that leave to all of the parties.

At the hearing on 27 June 2024, 28 June 2024 and 30 June 2024, Mr Jim Murdoch KC and Mr Charles Martin of counsel, instructed by Minter Ellison appeared with permission for Wilmar. Mr Troy Spence of counsel appeared with permission for the AWU, Mr Leo Saunders of counsel, instructed by Maurice Blackburn, appeared with permission for the AMWU, and Mr Charles Massy of counsel, instructed by Hall Payne Lawyers, appeared with permission for the CEPU.

Order for production

On 27 July 2024 at 10:52am, the AMWU filed an application for an order to produce documents. The application sought that Wilmar be ordered to produce the following:

(a)   A copy of the letter of instructions provided by the Australian Sugar Milling Council to Lawrence Consulting in respect of the February 2022 report ‘Economic Impact of Queensland Sugar Manufacturing Industry 2020/2021’.
(b)   A copy of the letter of instructions, including any associated materials or documents, provided to Lawrence Consulting in respect of the report ‘Economic Impact of Wilmar Sugar and Qld Sugar Manufacturing Industry’.
(c)   The data sources relied on in creating the above report.
(d)   The modelling used in creating tables 11 and 12 of the above report.

I determined to grant the orders as requested and issued the order to Wilmar on the same day at 11:52am, requiring compliance by 3:00pm that day.

Wilmar provided a response to the order that same day at 2:48pm including an explanation that not all of the material was in their possession. They stated that in respect of Category 3, they enclosed a copy of the data which was provided by Wilmar to the Australian Sugar Milling Council and that Wilmar does not otherwise hold copies of any other data sources that fall within that category. In respect of Category 4, they had conducted searches in the period since the order for production was issued and they do not have any of the documents which fall within this category. I acknowledge the incredibly tight timeframes in the circumstances.

Evidence at Hearing

Wilmar led evidence from five witnesses:

1.   Mr John Seedhouse – General Manager – Finance and Information,
2.   Mr Eric Motti – Workplace Relations Manager
3.   Mr Mike McLeod – General Manager – Operations
4.   Mr Mark Greenwood - General Manager – Commercial
5.   Mr Reuben Lawrence – Expert Witness

Each of the witnesses were cross-examined.

The AMWU filed statements from 3 witnesses, one of which was subsequently withdrawn. Ms Nicole Frisken, a State Organiser for the AMWU was cross examined. Mr Ethan Marano (official and employee of AMWU) was not cross-examined and his statement was admitted. [5]

The AWU filed statements from 4 witnesses, one of which was not read[6]. The following witnesses were cross-examined:

1.   Mr Joseph Cardillo – Boiler Operator at Kalamia Mill
2.   Mr Michael Backo – Boiler Operator at Inkerman Mill
3.   Mr Trevor Dibben – Boiler Operator at Proserpine Mill

The CEPU filed witness statements from 7 witnesses who were all cross examined;

1.   Mr Ronald Russell – Electrician at Invicta Mill
2.   Mr Martin Philipson – Electrical Engineering Systems Technician and Union Delegate at Proserpine Mill
3.   Mr Liam Sharkey – Union Organiser
4.   Mr Bryce Caltabiano – Day Shift Electrician at Pioneer Mill
5.   Mr Scott Power – Electrician at Plane Creek Mill
6.   Mr Brad Martin – Shift Electrician at Plane Creek Mill
7.   Dr Margaret McKenzie – Senior Economist and Expert Witness

History of bargaining and industrial action

Since 26 April 2023, Wilmar and the Respondents have negotiated a replacement agreement for the Wilmar Enterprise Agreement 2020[7] which has a nominal expiry date of 1 December 2023. There have been 13 meetings of the parties held between 26 April 2023 and 11 June 2024 which have not produced a resolution.

On 5 April 2024, the Respondents each applied for protected action ballot orders which were made by Deputy President Hampton on 9 April 2024[8], the results of which were declared on 26 April 2024.

The parties do not appear to be close to reaching agreement and the Respondents submitted that negotiations are at a critical point. It is not necessary in this decision to chronicle the history or even speculate about why no agreement has been reached.

Since 1 May 2024, the Respondents have provided notices of protected industrial action to be taken by Wilmar’s employees commencing on 9 May 2024. The protected industrial action that has taken place to the date of the Hearing has been as follows:

(a)24-hour full work stoppages on 9 May, 13 May, 21 May and 23 May 2024;
(b)During the week commencing 27 May 2024, there were one-hour stoppages at each mill, each day, which continued for approximately a week and a half;
(c)Partial day stoppages due to one-hour stoppages;
(d)Bans on the performance of overtime;
(e)Partial work bans; and
(f)A Technology ban at one of the eight mills.

The threatened industrial action

From 27 May 2024, Wilmar has provided notice to their workforce that it would not accept the performance of work with those partial work bans in place. Wilmar submitted that whilst most employees have come to work and performed all of their required duties rather than carrying out the partial work bans, there are others who have not attended for work on some shifts at some sites. Wilmar submitted that there have also been some occasions where some employees have taken unprotected industrial action. Wilmar provided that members of the AMWU participated in industrial action at Wilmar’s distillery, despite no notices being issued there. Wilmar submitted that only recently the AMWU has started to include the Distillery on its notices.

In response to the delays that Wilmar says have been caused by both protected and unprotected action, Wilmar issued a notice to employees on 4 June 2024 that they would commence a lockout of employees engaging in protected industrial action.[9] In response to this, the Respondents each withdrew their notices of protected industrial action relating to bans on overtime for the period 5 June until 11 June 2024.

Protected industrial action took place at each of Wilmar’s mills and the distillery involving members of each of the Respondents on 12 June 2024. As a result of this action, Wilmar filed an application pursuant to s.424 of the Act. Subsequently the Respondent’s withdrew all outstanding notices of protected industrial action and Wilmar discontinued its application.

On 24 June 2024, after a hiatus in the protected industrial action from 5 June 2024, the Respondents have notified of upcoming protected industrial action to be taken as follows: Four one-hour stoppages at each of Wilmar’s sites on 2, 4, 8 and 11 July 2024.

Wilmar submitted that beyond the notices provided, further future industrial action could take the form of stoppages of work (including on an indefinite basis), bans on overtime, and various other partial work bans. The Respondents submitted that although it is possible that further protected action will be taken, none has been notified and none is currently planned. Wilmar pointed to a statement from the CEPU which indicated that if the Agreement was voted down (which it was), that the union would be ‘ramping [its] industrial action right up’[10] and pointed to a workplace express article dated 7 June 2024 that threatened a range of activities from rolling stoppages and 24 hour picket lines.[11] Wilmar noted that previous industrial action beyond 1 hour stoppages had taken place. The Respondents submitted that the full context of the statement from the CEPU needed to be considered, that it was made on an advice to their members to stop taking industrial action to avoid being locked out, and was a reassurance that the union was not backing down permanently.

Wilmar submitted that on the basis of previous action taken and comments made in public correspondence, that further industrial action beyond the notices was probable and impending and the word “probable” on its plain meaning required some assessment of the future. In circumstances where the parties had reached a stalemate and were refusing to move, had already taken a great deal of industrial action and had expressed in various communications/media to take more industrial action, the probable threshold was met. The Respondents submitted that the evidence did not support a conclusion that any other industrial action is ‘threatened, impending or probable’ and that Wilmar’s case went no higher than the 4 days of 1- hour stoppages notified for 2, 4, 8 and 11 July 2024.

Witness Evidence

Given the need to publish my reasons expeditiously in accordance with the Act,[12] I make note of key issues arising out of the witness evidence. Where I have not noted evidence in my decision, I have nonetheless had regard to it in my considerations.

Evidence of Mr Michael McLeod

Mr McLeod gave evidence that he was the General Manager – Operations of Wilmar and that he held that role since April 2012.[13] In his role he has oversight of all aspects of all of Wilmar’s eight sugar mills (including cane supply, bioethanol operations and cogeneration facility at the Pioneer Mill[14] and the operations during the crushing season.[15] Mr McLeod confirmed that he held qualifications from New Zealand in a Certificate of Engineering which was in the areas of production and operations.[16] Mr McLeod also described the two distinct seasons in the sugar milling process being the crushing seasons and the maintenance season.[17]

The Crushing Season and Operation of the Mills

Mr McLeod gave evidence, which I accept, that the start date of the crushing season is determined in conjunction with crane growers[18] and there are many variables that effect the sugar crushing season including weather,[19] breakdowns at the mill,[20] less occasionally breakdowns/minor derailments of the cane rail network[21] and staff shortages.[22] I accept Mr McLeod’s evidence that the crushing season generally runs from June to November/December each year during wish the sugar cane is both harvested and processed.[23] Once the crushing is complete, there is a period where the plant undergoes a washdown in preparation for the maintenance season.[24]

Mr McLeod submitted that Wilmar employs some 1300 staff during the crushing season,[25] the mills operate 24 hours a day working continuously with rotating crews on 12-hour shifts.[26] The number of employees on each shift will depend on the mill but falls within the range of 11 to 18.[27]

The Crushing Process

Mr McLeod submitted that each canegrower is limited by its location and infrastructure as to which mills they can crush at. The cane is delivered to those mills. A logistics schedule is prepared which allocates cane bins to the harvesting operation that is based on what each mill expects to be able to crush the following day.[28] Each grower will harvest enough of their crop to fill their allocated bins. For those growers who burn their cane (not all do), they will proceed to burn their crop the night before they harvest (as soon as they are allocated their bins), to ensure their bins are also filled.[29] The cane supply employees manage the cane locomotives to ensure the empty ones are given to growers in time and the full ones are delivered to the relevant mill for crushing. Sometimes this might involve that those bins are filled and emptied twice in the same day using a ‘just in time’ approach to prevent any degradation of the cane between harvesting and crushing. This is because the sugar starts to deteriorate in the cane from the moment it is harvested, and this directly impacts the sugar quality and the amount of payment the grower will get for their cane. For this reason, Wilmar seeks to ensure the cane is harvested and processed as soon as is possible but within 24 hours to ensure the best quality and therefore the best price is achieved for the growers.[30]

Mr McLeod further submitted that the harvesting will finish early in an afternoon with sufficient cane cut to ensure the mill can continue operating overnight and the following morning until around 8am, such creating a buffer that operations are not broken before the first filled bins arrive that following day for crushing.[31] Once the cane arrives it is weighed and moves onto conveyer belts for processing which takes about 24 hours to process the conversion of sugar cane to raw sugar.[32] The process is set out in detail in Mr McLeod’s statement.[33]

Mr McLeod stated that each of Wilmar’s mills each have different capacities for the maximum amount that can be crushed each day during the crushing season[34] and therefore it follows that it is not practical for the mill to catch up on lost production to any great extent and that instead the more practical solution is to extend the crushing season.[35] Further, Mr McLeod explains that given the crushing seasons ends in the wet season, there is a very real possibility that any lost production, may not ever be able to be caught up[36] and consequently part of the crop will go unharvested and this will have a direct impact on Wilmar in terms of lost revenue and also on the Canegrowers.[37]

Impacts of Protected Industrial Action in the Crushing Season

Further, Mr McLeod submitted that as a consequence of the protected industrial action taken at each of Wilmar’s mills and the distillery since the beginning of May 2024, the crushing season start had been delayed. When cross examined, Mr McLeod readily conceded that other factors also caused delays to the crushing season.[38] I am however, satisfied on the basis of other evidence put before the Commission by Mr Greenwood,[39] that delays for reasons other than the protected industrial action, are already built into the scheduling of the crushing season by Wilmar and therefore I accept the evidence of Mr McLeod that the 2024 crushing season has so far been delayed predominantly by the industrial action taken since the beginning of May 2024.[40] Those delays as at 26 June 2024 rang from delays of between 6 and 15 days across the mills.[41]

Impact of 1-hour Stoppages on Wilmar

Shutdown

Mr McLeod gave evidence about the actions that needed to be taken in order for a 1-hour stoppage of each plant to occur safely and to minimise the risk of damage to the equipment.[42] His evidence was that the shut-down process takes a period of somewhere between 12 and 24 hours.[43] There were a number of what he described as critical reasons for this process. These included:

(a)The need to process all of the sugar juice through the factory until it has been converted into syrup due to the rapid deterioration of the juice when it contains a lot of water or impurities whereas the syrup can be stored in the medium term with minimal risk of degradation.

(b)During the processing of the sugar there is a substance called “massecuite” that requires specialist pumps to get it around the factory and when there is a shut down if it is not completely processed it can harden similar to cement and if it is not flushed out properly can cause damage to the equipment and is also a safety risk for staff who are required to remove the material from choked pipes or vessels.

(c)Three important pieces of equipment in the plant are the alternators, turbines and the high-pressure boilers. The steam from the boilers is needed to process and clear the sugar juice and the massecuite and consequently is the last part of the plant to be shut down. Given that the boilers operate at high temperatures and at high pressures, they need to be cooled at the appropriate rate to ensure all of the factory is in a safe state and to reduce the risk of damage to the plant. The generating alternators also operate at high temperatures and speeds and also need to be shut down in a controlled manner. The steam driven turbines are reliant on the boilers operating and also need to be shut down.[44]

Further, it was Mr McLeod’s evidence that at least some of these steps would need to be taken where there was a stoppage (even of just 1 hour) and he acknowledged that each mill was different. Mr McLeod submitted that shutting down all three pieces of equipment (alternators, turbines and boilers), required approximately 10-12 hours during which they required monitoring by a licensed operator at all times. Mr McLeod explained that the equipment could not be left without supervision even for a 1-hour stoppage and he explained the range of time was relevant to the different mills in terms of size and complexity of the equipment. He further explained that as the Pioneer Mill was run in conjunction with a cogeneration plant it has a different boiler which takes longer again to shut-down the cogeneration plan and estimated this at approximately 36 hours and the cogeneration activity would therefore involve a 36-hour stoppage of works for the 1 hour stoppage to occur safely.[45]

Startup

Mr McLeod gave evidence in respect of starting up operations requiring between 6 and 12 hours.[46] His evidence was that a boiler was required to be lit and brough back up to operating temperatures and pressure “following a standard pressure rising curve”. Again, he qualified the difference in time of the ranges was consequent upon the size and complexity of the equipment at each mill given their differences.[47] Mr McLeod goes on to explain that once the boiler is back online, the remainder of the mill process will be required to start up and will take a couple of hours before they are ready again to process fresh cane, again depending on mill stocks available to process and the differences in installed equipment.[48]

Total downtime and other impacts

Mr McLeod considered the shutdown time of 10-12 hours, start-up time of 6-12 hours and the actual stoppage time of 1 hour and concluded an approximate time of at least 18 hours of lost production time.[49] I note that at the higher end of Mr McLeod’s evidence, that would total 25 hours. Mr McLeod again noted that such a delay may not ever be able to be made up at the end of the season.[50]

Mr McLeod also explained that where there was any stoppage, there was also a requirement to notify the growers so that they could take steps to adjust their timeframes for the harvesting of cane that was intended to be crushed. He noted that Wilmar had no capacity to store excess cane at mills and that any delay to the crushing of cane would result in a degradation of its quality and subsequent impact on revenue.[51]

Mr McLeod gave other evidence that was uncontested in respect of the impact of overtime bans, technology bans and other forms of industrial action including the significant flow on impact of that action.[52]

Observations

Mr McLeod made appropriate concessions during cross examination, such as the differences between the mills. He was unshaken in his evidence about the consequences of a 1-hour stoppage on the operations noting the three different pieces of equipment involved in such a stoppage and what was required for each of them in isolation and in combination.[53] It was apparent that Mr McLeod was knowledgeable about the operations across the mills, distillery and cogeneration plant. He was appropriately and perhaps even uniquely placed (as opposed to the witness evidence of anyone else), given his role, held for more than 12 years, across the relevant operations of Wilmar, together with his qualifications, to give evidence about the relevant issues across those operations. He was a confident witness who made appropriate concessions and gave credible evidence which I accept.

Evidence of Mr Eric Motti

Mr Motti provided a witness statement in these proceedings. He gave evidence he was a qualified boiler maker with some 35 years of experience and that he held the role of Workplace Relations Manager with Wilmar and its predecessors such as Sucrogen and CSR Limited since 1 July 2006. Mr Motti gave evidence that he had held various roles with the predecessor CSR Limited since commencing his apprenticeship in 1980 at the Victoria Mill.[54] Mr Motti gave a summary of the enterprise agreement negotiations that had commenced on 16 March 2023 and its history since that time including the number of meetings held, concessions that had been made, the efforts to try to reach agreement, the rejection of the offers made by employees and the stalemate reached.[55] He also provided an overview of the industrial action taken in respect of this agreement including copies of the relevant notices.[56]

Mr Motti annexed a number of communications. The first was at EM11 and is a communication issued by the CEPU on 4 June 2024. That communication included a statement to the effect of “once the agreement is voted down we will be ramping our Industrial Action right up”.[57] Further at EM12 an article from Workplace express dated 7 June 2024 in which the Secretary of the AMWU Queensland suggests ongoing action with rolling stoppages and community pickets.[58] Mr Motti also provided a second statement in the matter updating the most recent notice of industrial reaction received from the AWU on 26 June 2024.[59] Other than Paragraph 40 of Mr Motti’s 1^st statement in which Mr Motti gave hearsay evidence provided to him by Mr Wallace, the remainder of his statement was uncontested and I accept Mr Motti’s the remainder of that evidence.[60]

Evidence of Mr Mark Greenwood

Mr Greenwood gave evidence that he was the General Manager – Commercial at Wilmar, that he had held that role since October 2022[61] and that he held the qualifications of a Bachelor in Chemical Engineering with First Class Honours from the University of Adelaide.[62] Mr Greenwood gave evidence that his role involved strategy, business development, sales and marketing of Wilmar’s products and his understanding of the financial drivers of the operation as well as the financial impact on the industrial action impacting Wilmar’s operations.[63]

Overview of the sugar industry in Australia and Queensland

Mr Greenwood adduced evidence in his witness statement, from the Australian Sugar Milling Council’s website about the amounts of cane crushed, sugar produced and industry revenue each year over the years of 2014 to 2023 across Australia and Queensland. It also included information on the number of mills, milling companies and growers as well as the relevant sugar content which as we heard from Mr McLeod, affects the prices that the growers get for their products.[64]

Mr Greenwood gave the following working estimates based on that information as follows:
(a) Crop crushed each year – approximately 32 million tonnes;
(b) Sugar produced each year – approximately 4.5 million tonnes;
(c) Sugar allocated to domestic consumption – approximately 1.0 million tonnes;
(d) Sugar allocated to export – approximately 3.5 million tonnes; and
(e) Industry revenue – historically this has been $1.5 billion to $2.5 billion (including coproduct sales). However, at prices for the 2024/25 season, industry revenue is likely to exceed $3.5 billion.[65]

Mr Greenwood further submitted in his evidence that approximately 95% of Australia’s raw sugar is produced in Queensland and Wilmar is responsible or approximately 50% of all sugar produced in Australia, noting that most of this product is exported. He stated that Australia is considered a “premium supplier and has a strong reputation as a reliable supplier of raw sugar.”[66] He concluded that a disruption of significance caused by industrial action could have an adverse impact on Australia and the industry’s reputation as would the inability to supply sufficient sugar to meet the demands of existing export commitments.[67]

Mr Greenwood submits that Wilmar crushes approximately 15-16 million tonnes of sugar cane to produce approximately 2-2.2 million tonnes of raw sugar with provides approximately 50% of the total industry revenue. He further noted that based on the cane price formula typically applied across the sugar industry, revenue from sugar is distributed to millers and growers approximately in a 1:2 ratio.[68] He also said that in addition to raw sugar, there are a range of various co-products such as molasses, renewable electricity exported to the grid and at Wilmar, ethanol, fertiliser and stockfeed. He noted that in aggregate these co-products add a further 10-20% of revenue to the millers.[69]

Mr Greenwood provided a sugar price for 2024/2025 season based on a futures contract that pre-set the market price at $AU612 per tonne[70] although he believes this could be as much as $AU750 per tonne due to other factors[71] or potentially higher.[72] Mr Greenwood submits that on that basis, Wilmar is working on a forecast of $730 - $840 per tonne of sugar produced.[73]

Mr Greenwood attached to his statement a report of an Economic Impact Assessment produced by Lawrence Consulting for the Australian Sugar Mining Council with respect to the Queensland Sugar manufacturing industry in 2020/2021.[74] Based on that analysis he provided some data around the Queensland sugar industry in respect of its contribution to the Queensland economy and he went on to break up the three regions in Queensland that are relevant to Wilmar given the location of their mills.[75]

Mr Greenwood submitted that the relevant revenue produced in those three regions by the Sugar industry as a % of the gross regional product (GRP) was as follows:

Far North Queensland Region (Herbert - Victoria and Macknade mills) where the industry contributes $592 million in gross value and that represents 1.9% of GRP;
North Queensland Region (Burdekin – Invicta, Pioneer, Kalamia and Inkerman mills) where the industry contributes $1 billion in gross value and that represents 7.3% of total GRP; and
Mackay Region (Proserpine and Plane Creek Mills, Bioethanol Distillery in Sarina) where the industry contributes $937.5 million in gross value and 3.8% of GRP.[76]

Impacts of Protected Industrial Action in the Crushing Season

Mr Greenwood provided information in his statement about the reasons that the crushing season is constrained. He gave evidence that this is because the wet season begins in December and the sugar content in the cane “(CCS content) has also reduced and the crop becomes progressively less valuable.”[77] In cross examination, Mr Massy referred Mr Greenwood to MG4[78] which referred to the rainfall in the Lower Burdekin region which demonstrated that the rainfall for December was the same as the preceding 4 months.[79] The Lower Burdekin region is a section of one part of the three Regions across Wilmar’s operations. To the contrary, Mr Greenwood’s evidence at MG3, which was replaced with the Bureau of Meteorology report dated 14 May when Mr Greenwood swore in his evidence in chief,[80] was uncontested in cross examination. It says more broadly that “The best guidance for future rainfall or temperature forecasts is the Bureau’s long range forecast … the long-range forecast for June to August is showing an increased chance of above average rainfall for parts of eastern Australia...”[81]

On the basis of an estimate that the crushing season typically lasts from June to December, Mr Greenwood stated that there was the very significant potential for industrial action or wet weather to cause a failure to crush the entire crop[82]. Mr Greenwood stated that unless the crushing season can be extended, which is dependent on when the wet weather season beings, that it may be impossible to ‘catch up’ any day lost throughout the crushing season. Any cane that is not crushed will remain in the paddock and is referred to as (standover cane).[83] During the Hearing, Mr Greenwood clarified that standover cane refers to cane that is not harvested rather than cane that is not crushed[84].

During the hearing, Mr Greenwood gave evidence that the crush had begun at some mills in Queensland[85] and that the two mills that had not begun crushing were the Victoria and the Plane Creek mills[86] at the time of his statement being made.

Mr Greenwood stated that there is a range of reasons beyond Wilmar’s control that could lead to a crop not being entirely harvested and crushed including inclement weather, breakdowns at the mills and cane train disruptions[87]. Mr Greenwood gave evidence that the breakdowns, inclement weather etc are factored into the calculations of the milling capacities.[88] In relation to inclement weather, Mr Greenwood provided that the impacts of wet weather on the sugar industry is demonstrated by the events of the 2010 statement and he referred to the report for Queensland Sugar Limited[89] which identified that wet weather equated to a 17% reduction in sales revenue, attributed to the result of a La Niña weather event. Mr Greenwood also provided that he was aware of industrial action being taken during the 2010 crushing season and stated that he believed that action would have had a direct impact on the available crushing season and that the days were not able to be made up at the end of the season due to the weather[90].

During the Hearing, regarding equipment breakdowns, Mr Greenwood stated that Wilmar anticipates that their equipment will not be working 100% of the time and that they assume a certain availability of the equipment between 85-90% and that following a breakdown, it would not be feasible to ramp up to the point where they could catch up, and that potentially by extending the crushing season they could start to catch up but that it is not always possible.[91]

In relation to the example crush of the 2010 season, during cross examination Mr Greenwood clarified that even if a crush is extended, that there are consequences if it goes beyond December. The sugar content in the cane reduces, and the optimal time around August/September. Extending the crushing season to the latter part of December reduces the revenue that can be obtained from the sugar which produces less revenue for the millers and for the growers.[92]

Observations

Mr Greenwood was a confident witness who gave a credible account of the industry and the impacts of various factors which he was comfortable to speak for within the context of his knowledge arising from his role, experience and qualifications. I found that he gave credible evidence, consistent with other evidence before the commission which I accept. Mr Greenwood annexed significant additional evidence that was unchallenged in respect of the sugar industry and the impact of the industrial action on the cane growers. I am satisfied that this unchallenged evidence supports the findings that I have made.

Evidence of Mr John William Seedhouse

Mr Seedhouse gave evidence he was employed as the general Manager Finance and Information at Wilmar and had held that role since 9 April 2019.[93] Mr Seedhouse holds a Bachelor of Commerce majoring in Accounting, a Bachelor of Arts majoring in Philosophy, a Masters of Business Administration and is a past member of the Chartered Practicing Accountants currently retired.[94]

Mr Seedhouse provides in his witness statement his estimates of lost revenue that results from the direct loss of revenue as a result of the notified 1-hour stoppages and he concedes under cross examination that his calculations are based on the assumptions of 18 hours of loss productive time per stoppage and that those losses will not be able to be made up for at another time.[95] I noted further in cross examination and re-examination his further comments about any extra capacity in the daily throughputs of the mill and accept his evidence that his analysis erred on the conservative side in respect to any additional capacity he might be able to claw back[96] (conservative in the sense that it would be less likely that any loss productivity could be clawed back towards the end of the crushing season if the weather permitted it).[97]

In so far as the assumptions acknowledged about lost hours from a stoppage being between 18 (in respect of crushing) and 24 hours (in respect of cogeneration and bioethenol) and noting that the crushing revenue assumes that the day cannot be made up at the end of the crushing season, I accept the following figures from Mr Seedhouse’s evidence:

Cogeneration - $487,235 lost revenue per day
Bioethanol - $80,122 lost revenue per day
Crushing revenue Wilmar $3,754,000 per day ($3.754 million)
Crushing revenue Cane Growers $5,405,000 per day ($5.405 million)[98]

Evidence of Mr Reuben Lawrence

Mr Lawrence was engaged by Wilmar to provide a report regarding the economic impact of Wilmar and the Queensland Sugar Manufacturing Industry[99]. Mr Lawrence holds a Bachelor of Economics (Honours) from the University of Queensland. He has over twenty-five years of experience in consulting and in advising both government and corporate clients across a vast array of projects and industries.[100]

Mr Lawrence stated that he provided the report on the basis of data from 2020-2021 as he had been engaged by the Australian Sugar Milling Council to undertake an economical impart/contribution study for the entire sugar manufacturing industry for Queensland and that as part of that study, he had been provided with data about Wilmar.[101] Mr Lawrence stated that whilst the data was provided on the basis of 2020-2021 data, that he did not possess any material at all within his field of knowledge that would require him to adjust the figures and that the parameters provided by Wilmar to him in his preparation of his report would not indicate a significant deal of difference between the likely spending patterns from 2021 to the most recent financial year[102].

Mr Lawrence was provided with a copy of the report produced by Dr McKenzie and commented that the evidence brief regarding turnover for Wilmar was strictly related to operating turnover, which was contrasted to the approach taken in his report.[103] Mr Lawrence further stated that it was misleading in Dr McKenzie’s report to cast impacts on revenue in terms of gross domestic product, as they are two different things (revenue and value add) but noted that it was likely a minor point.

Mr Lawrence explained why he took the approach that he did, in stating that it was the best and most thorough way of demonstrating economic impacts specific to local economies to demonstrate the proportion of not only overall spend but all spending categories.[104]

When Dr McKenzie gave her evidence, she claimed that Mr Lawrence had double counted figures in both the direct and again indirect calculations.[105] After some discussions among counsel, Mr Lawrence was brought back to give further evidence, an opportunity to respond this Dr McKenzie’s opinion.[106] There was some disagreement about what was direct and what was indirect.[107] Based on the evidence before me, I preferred Mr Lawrence’s evidence and formed the view that on the evidence the question asked by Mr Massy of Dr McKenzie in this exchange did not align with the evidence given by Mr Lawrence and did not satisfy me that there was any double counting in Mr Lawrence’s report.[108] In any event, ultimately Mr Lawrence gave evidence that he had not in any way double counted any figures in his analysis and I accepted this proposition.[109] If I am wrong on that, nothing turns on it in any event as my calculations are ultimately not based on these figures in Mr Lawrence’s report.

Observations and Other considerations

The Respondents made submissions that the Lawrence report is unreliable and its findings should not be given any weight.[110] The CEPU relied on an authority from the Federal Court about the admissibility of the Expert evidence.[111] The CEPU also pointed to the AWU’s closing submissions and specifically to the authority of the Full Bench in Mt Arthur Coal,[112] as to a fair basis by which expert evidence is admitted at common law and specifically highlighted the following:

“the expert’s contribution should not have the effect of supplanting the function of the tribunal deciding the issue before it, and the admissibility of the evidence depends upon proof of the factual basis of the opinion”

The Respondents base their objection to the Lawrence report on their issuance of a notice to produce upon Wilmar to produce certain documents.[113] The documents that were not produced pursuant to that notice included Mr Lawrence’s modelling for tables 11 and 12 of his report and also for the source data. Wilmar says they did not have that information in their possession and note the very tight turnaround times for the production of the material. I also noted that it was open to the Respondents to seek a notice to produce from Mr Lawrence directly which they chose not to do. The Respondents had an opportunity to cross examine Mr Lawrence, put those concerns to him in respect of his modelling and then it would be a matter for the Commission as to how that evidence is assessed.

Further I note that Dr McKenzie had the opportunity to peruse Mr Lawrence’s report. In respect of the multipliers used in Mr Lawrence’s report on the indirect effects of Qld Sugar manufacturing on Queensland GSP, Employment, Business spend, wages and salary Dr McKenzie simply says in her report that the multiplier seems high.[114] She puts her criticism no higher. In respect of Dr Lawrences report on the indirect effects of Wilma Sugar Australia on Queensland GSP, Employment and Business spend, Wages and Salaries, again Dr McKenzie says simply that this seems high.[115] Again she puts this no higher. I note that Mr Lawrence disagreed with the low multiplier that Dr McKenzie applied which he described as a “singular multiplier”.[116] I found Mr Lawrence’s explanation of the multiplier effect to be logical and clear.[117]

Whilst I note the concerns of the Respondents, I have placed no weight on the data in the Lawrence report that is calculated with the multipliers in question. Instead, as recommended by the full bench in Mt Arthur Coal, I have satisfied myself on the basis of my own calculations which derive from the evidence provided throughout the first two days of the hearing and I have set those out accordingly in my decision. I note that the limbs of s.424 are satisfied on this basis, but that doesn’t mean I agree that little weight should be placed on Mr Lawrence’s report. I simply find that the tests are met without the multiplier.

Evidence of Mr Scott Power

Mr Power provided a witness statement. He gave evidence that he has been a qualified electrician for 20 years and he has worked in the sugar industry for all of his working life. He has worked for Wilmar at the Plane Creek Mill since 2010, and its predecessors Sucrogen and CSR at the same Mill since 2004.[118]

Mr Power gave evidence about the crushing season, the maintenance season, the impact of industrial action on both of those seasons and also on the Sarina Distillery which is at the Plane Creek Mill site. I summarise the key elements of Mr Power’s evidence as:

(a)   The crushing season window usually runs from June to November;[119]
(b)   The maintenance season runs outside of that window;[120]
(c)   The crushing seasons in 2021 and 2022 ended late because they started late;[121]
(d)   Cane was left in the paddock in 2021 where it finished in late November due to poor mill reliability;[122]
(e)   In the 2022 season the crushing season finished on 7 January 2023 due to wet weather in December and a large crop which again resulted in not all the crop being crushed and some cane being left in the paddock;[123]
(f)    The season finished on 31 December 2023 and not all the crop was crushed with some cane left in the paddock;[124]
(g)   There were significant delays in 2023 caused by a poor season, poor mill reliability and lack of tradespeople;[125]
(h)   Plane Creek is behind of maintenance irrespective of issues arising out of the industrial action;[126]
(i)     There are half as many electricians as ideal, Wilmar has been advertising for them all year and there are less than last year;[127]
(j)     If staffing levels were ideal, overtime would help make up for lost time;[128]
(k)   Overtime shifts are being offered but it does not seem to be helping;[129]
(l)     Some contractors have been brought into help, but they have no experience in sugar, work slowly or become injured and these issues cause work stoppages and delays;[130]
(m) Wilmar engaged in an overly ambitious project to replace the centrifuges at Plane Creek and the project timeframe has blown out;[131]
(n)   The industrial action did not contribute to these delays as it was a capital project mostly being done by contractors;[132]
(o)   Plane creek’s crushing start date was delayed by 2 weeks and is expected to finish by 5 December 2024 due to the delays in the maintenance season previously mentioned;[133]
(p)   He does not believe that the revised dates are achievable, and the season will extend beyond November 2024, irrespective of any industrial action;[134]
(q)   The rolling industrial stoppages totalled 6.5 hours between 30 May and 12 June because ½ hour was a stop and the other ½ hour a lunch break;[135]
(r)    The significance of a 1-hour stoppage is small in comparison to other factors in Wilmar’s control;[136]
(s)    He stated he has told additional steam trials will be required as a result of the industrial action and he finds it difficult to understand how that is possible without a stoppage doing a steam trial, however they are all finished now with the last being completed on 18 June 2024;[137]
(t)     He gave evidence that the cleanout of the plant for a stoppage can take 12-24 hours and the time to start up can take 6-12 hours;[138]
(u)   He believes that if a one-hour stoppage is required then there is not a requirement to undertake as much work as if shutting the mill for a long time;[139]
(v)   He set out his process for undertaking a shutdown which totals between 4 hours and 40 minutes to 6 hours and 40 minutes;[140]
(w) He set out the process to start the mill again which totals 5 hours and 5 minutes to 7 hours and 5 minutes;[141]
(x)   He believes the time at (v) and (w) above is the total time required to shut down the plan “if necessary for a one-hour stoppage”;[142]
(y)   He stated there is no risk to plant or machinery as along as stirrers, turbines and waste system are monitored and that this can be done by management[143] (it is unclear what he refers to, but he may be referring to his earlier paragraph about a production pause);[144]
(z)   He stated that if there is a 1-hour stoppage there would be a 10-12 hour delay in the crushing and that it is his understanding that cane will go sour after 2-3 days so the 10-12 hour delay would not result in any losses;[145]
(aa)      He stated that Wilmar could notify farmers to hold off on cutting cane where protection action notice is given;[146]
(bb)      He stated that Plane Creek is mostly only relied on for steam in the Sarina Distillery and a 1-hour stoppage may lead to delays of up to 6 hours at the Sarina Distillery.[147]

In swearing in his evidence in chief Mr Power adduced further evidence that to shut down a turbine would take ½ an hour from full speed and if they don’t generate power, they could be shut down immediately.[148]

During cross examination Mr Power:

(a)   Acknowledged that there was competition for electrical tradespeople due to the expansion of the coal mining industry in the Mackay hinterland, two bulk coal-loading terminals close by, considerable construction project work at the Dalrymple Bay terminal and the needs of the nearby coal fields;[149]
(b)   Acknowledged that some of the contract staff did have sugar experience;[150]
(c)   Acknowledged that the maintenance season was affected by the protected industrial action taken;[151]
(d)   Did not agree that a full day stoppage would require time to get the maintenance activities back up and running in their normal pattern of productivity and then suggested there was only 6.5 hours of stoppage;[152]
(e)   Acknowledged that the 2024 crushing season having started late would finish late;[153]
(f)    Agreed that any industrial action is likely to further push out the completion of the crushing season;[154]
(g)   Gave evidence that a one-hour stoppage would stop 12 hours of work;[155]
(h)   Acknowledged that if the industrial action goes ahead another 31 December end to the crushing season was a possibility;[156]
(i)     Acknowledges that overtime will not avoid an extension to the crushing season at the current staffing levels despite saying otherwise in his statement;[157]
(j)     Acknowledges that Wilmar have done everything in their power to mitigate the delays to the crush so far;[158]
(k)   Acknowledges that the evidence he is given come from an electrical perspective as that is his specialty;[159]
(l)     Under cross examination in respect to who needed to step in to monitor stirrers, turbines and waste system was evasive about whether this needed to be monitored by someone qualified to do so given staff would be absent on industrial action.[160]

Observations

Mr Power’s evidence was often contradictory, especially so about whether the plant needed to be shut down and if so, how long for. He gave evidence ranging from it could be shut down in less than an hour to up to 24 hours. He gave similar estimates to those given by Mr McLeod in some of his evidence. He gave conflicting evidence about whether overtime could catch up and he gave evidence under cross-examination that differed from his witness statement in respect of the impact on the crushing season being able to catch up the lost production that would result from the stoppages. You can see this from the information set out in paragraphs [71] and [73] above. Given the contradictions I prefer the evidence of Mr McLeod. I note Mr Power’s acknowledgement that he gave his evidence from his perspective of electrical expertise which is entirely understandable.

Evidence of Mr Martin Philipson

Mr Philipson provided a witness statement. He gave evidence that he has been employed by Wilmar for approximately 15 years, commencing as an electrical apprentice and having been employed as an electrical shift technician for around 2 years based at the Proserpine mill.[161]

Mr Philipson gave evidence about the maintenance of the plant equipment and the crushing of the cane itself, the impact of industrial action on both of those functions. I summarise the key elements of Mr Philipson’s evidence as:

(a)   He stated that each year a date is set for the crushing season to commence in consultation with the growers to determine optimal start time;[162]
(b)   In his experience, it is very rare that the crushing season commences on the date it is originally set and more often than not, the start date comes down to the readiness of the factory following maintenance;[163]
(c)   The Proserpine Mill is currently undergoing some major upgrade projects of the plant and equipment. Specifically, the generator control project, which is entirely contractor delivered, has gone significantly overtime due to scheduling conflicts. The shredder control project was completed using internal staff whereas the generator control project could not be covered by internal resources;[164]
(d)   He would estimate that about half of the workforce at the Proserpine Mill are contractors;[165]
(e)   Having never been a boiler operator, he has however heard that it can take four to six hours to shut down a boiler safely and then another three to four hours to bring a hot boiler back online.[166] He believes that any further impact of an hour stoppage to the rest of the process can be mitigated with prior planning and the required notice period of 4 days should allow time to complete;[167]
(f)    He provided that depending on how the cane is cut, it has a shelf life of 24-48 hours and often takes about 12 hours to arrive at the mill from the farm. Burnt cane has approximately another half day, green cut cane has another 24-48 hours to its shelf-life. He further provided that there is a point at which cut cane becomes unusable for sugar but, in his experience, that only happens several days to a week after harvest. It can still be used as fuel if need be;[168]
(g)   He stated that he didn’t believe that industrial action would effect growers/farmers as they have rotations of cutting, with some cutting later in the season;[169]
(h)   He provided that if there are problems with bringing the mill back online after it shutdowns then it can impact the farmers with cane waiting to be crushed as it could take longer than the shelf-life. He stated though, that he could not see how a few days industrial action can contribute to two weeks of delay to the crushing season;[170] and
(i)     He stated that equipment breakdowns, wet weather or power outages regularly stop crush operations for at least the same period as the industrial action, if not longer and that this would have the same effect on Wilmar and the cane growers with little to no notice.[171]

Under cross examination, he stated he was unsure of whether there would be further notices but that he intended to proceed with the ones notified. Further that the delays during the maintenance season contributed a small amount to the delayed start of the crushing season. He agreed that the proposed stoppages would add to the length of the crush. [172]

He was unsure as to the actual time it takes to shut down power generation and knew that boilers being shut down is separate and independent to shutting down power generation.[173]

He further stated that his statement that he could not estimate the delay to the crushing seasons and acknowledged that they started crushing at the Proserpine Mill and couldn’t estimate the completion date.[174]

Observations

Mr Philipson’s evidence about the amount of time required to shut down the boiler and then bring it back on-line is not in my view reliable. He acknowledged that he is not a boiler maker and I note the objections that important parts of his evidence amounted to hearsay which I accept. Ultimately, I preferred the evidence of Mr McLeod in respect of the time lost to a 1-hour stoppage given his role, experience and evidence.

Evidence of Mr Bryce Caltabiano

Mr Caltabiano provided a witness statement. He gave evidence that he has been within the sugar industry for approximately 6 years having completed his apprenticeship with Wilmar. He is currently completing his Instrumentation certificate and is based at the Pioneer Mill in the Burdekin Region.[175]

Mr Caltabiano gave evidence about the delay to the crushing season, maintenance of the plant equipment and the impact of industrial action. I summarise the key elements of Mr Caltabiano’s evidence as:

(a)   In his experience, each year the crushing season is delayed for a variety of reasons and commonly it is due to maintenance and uncompleted capital projects;[176]
(b)   Additional jobs and projects were added to the timeline.[177] The Capital project being completed by contractors and Wilmar’s tradesmen was delayed by a few weeks because the materials and equipment were not ordered and there was insufficient pre-planning. Further, the contractors were not sufficiently knowledgeable and unsuitably supervised leading to mistakes;[178]
(c)   There remains a number of maintenance jobs to be completed, with water leaks coming from multiple vessels and pipes, and that because of this the Mill is a mess;[179]
(d)   The Mill participated in four full day stoppages and a few one-hour stoppages. He believed that the delay to the crushing season of 16 days could not be entirely attributed to the stoppages of work, that the mill was not ready to commence crushing on the start date;[180]
(e)   He stated that while union members were undertaking industrial action, that contractors were still working on those days performing maintenance work, and that the mills were not entirely shut down because of the stoppages;[181]
(f)    Relating to the overtime bans, he stated that prior to the bans, the employees at Pioneer mill had been working throughout the maintenance season and that some had been doing hundreds of hours;[182] and
(g)   In his experience and to his knowledge, cut sugar cane can last approximately three to four days and that it is always useable, but loses sugar content and once it’s content is low enough, that it can be used in other ways.[183]

During cross-examination, Mr Caltabiano stated as follows:

(a)   A delay to the start of the crushing season would result in a delay to the completion of the season;[184]
(b)   Of the 16 days delay to the start of the crushing season, 4 full days of stoppages were undertaken and a couple of days of 1-hour stoppages; [185]
(c)   Bans on overtime contributed to a delay in the completion of the maintenance work during the maintenance season and approximated that of the 16 days delay, rather than 4 days having contributed to the delay it would be 5-6 days delay considering the smaller stoppages;[186]
(d)   He was not aware that there are contractual obligations requiring cane to be crushed within 24 hours of receipt;[187] and
(e)   He stated that new equipment would be welcomed at the Mill for safer, more efficient and better working conditions[188] and accepted that there is a notorious nationwide shortage in qualified electricians.[189]

Observations

Mr Caltabiano did his best to answer the questions in the context of his experience in electrical instrumentation at the Pioneer Mill. Where his evidence was at odds with Mr Motti in respect of the industrial action taken, I preferred Mr Motti’s evidence which was supported by notices and other more comprehensive information. Where the evidence was at odds with Mr McLeod’s evidence, I preferred the evidence of Mr McLeod as he had more experience and, in his role, a broader overview of the entire Applicant’s operation including all aspects of the mill and all of the different roles at a mill. Mr Caltabiano’s observations about the nationwide shortage were helpful.

Evidence of Mr Trevor Russell

Mr Russell provided a witness statement. He gave evidence that he has been a qualified electrician since 1992 and has had two periods of employment with Wilmar; from 2010-2011 and again from 2022 to now at the Invicta Mill.[190]

Mr Russell gave evidence about the delay to the crushing season, maintenance of the plant equipment and the impact of industrial action. I summarise the key elements of Mr Russell’s evidence as:

(a)   Delays to the crushing season has been mainly due to staffing and plant issues;[191]
(b)   Staff shortages have contributed to the delays, and they have 5 fewer electricians and 10 fewer fitters. He stated that by the end of the week commencing 24 June 2024, that they will be down seven electricians.[192] Wilmar’s hiring practice of engaging contractors contributed to this, in his opinion;[193]
(c)   The inexperience of contractors, issues ordering parts and man-power shortages have delayed the completion of maintenance but all maintenance that Wilmar’s staff are responsible for had been completed prior to any industrial action being taken;[194]
(d)   He stated that there are supervisors who are experienced in the mills able to work on the plant if they choose to do so to mitigate the issues caused by short staffing and industrial action;[195]
(e)   He provided details regarding Plant issues including that a genset requiring reconstruction and deconstruction during a break, Motors in the Ash Slurry pit have drowned four times in 18 months causing stoppages, and that parts were not being ordered/received in a timely fashion;[196]
(f)    In his experience it is always a guess as to when the crushing season will begin and there is no way to predict how many days delay will be caused by rain.[197] Further that prior to industrial action commencing, staffing issue have led to more breakdowns than there would otherwise be;[198]
(g)   Stoppages have a bigger impact during the crushing season than during the maintenance season but that at the moment, he believed staffing, knowledge training, and plant issues contribute more to the number of, and the significance of stoppages;[199]
(h)   In giving an example of industrial action that took place on 12 June (a 1-hour planned stoppage). Considering the uncertainty about when they could return (as a result of Wilmar’s indication that they would take response action and lock them out), they shut down the mill completely which can take around 24 hours to safely shut down the plant;[200]
(i)     He stated that in situations such as a breakdowns, safety hazards, workplace injuries or staffing issues, that shutdowns can occur more or less instantly;[201] and
(j)     He stated that he believed that there were sufficient staff (supervisors, non-union members and members who are not undertaking industrial action) to run the crush during a 1-hour stoppage and provided that there were employees from other mills who could operate fugals.[202]

During cross-examination, Mr Russell stated as follows:

(a)   Confirmed that industrial action has contributed somewhat to the delay to the crushing season and that there would possibly be a flow on effect onto when the season would end;[203]
(b)   The estimates that he gave regarding how long it would take to shut-down and restart the plant at the mills relates only to the time for the boilers to be shut down and that they are the main things to be shut down;[204] and
(c)   He was not aware of all manning issues and could not know for sure, on the basis of the other operators shift schedules, family obligations, whether they would be able to run the mills during the stoppages. [205]

Observations

Mr Russell conceded in cross examination the industrial had impacted on the delay in the crushing season and the potential flow on to the season end. Unfortunately, there is a very wide variation in evidence from individual employees as to the impact of the 1-hour stoppages, and in this respect, I preferred the evidence of Mr McLeod as he had more experience and in his role a broader overview of the entire Applicant’s operation including all aspects of the operations and the different roles required to ensure its optimum effectiveness.

Evidence of Mr Bradley Martin

Mr Martin provided a witness statement. He gave evidence he has been with Wilmar for about 30 years and is currently a shift electrician based at the Plane Creek Mill in Sarina.[206]

Mr Martin gave evidence about the delay to the crushing season, maintenance of the plant equipment and the impact of industrial action. I summarise the key elements of Mr Russell’s evidence as:

(a)   He attributed staffing issues to electricians leaving due to poor pay conditions at Wilmar and that he was aware they were all working at other places earing between $15-$20 more per hour than what they were at Wilmar;[207]
(b)   He recalled delays to the previous crushing season in 2023 of approximately 1 week.[208] Further, that the previous two years were also delayed due to wet weather and then because of maintenance running behind schedule;[209]
(c)   There was still a large amount of testing and commissioning of the plant to be completed before 24 June 2024, the biggest hold up in maintenance being the milling train. There being insufficient staff, the workforce has not been able to ready the Mill for the crushing season;[210]
(d)   He stated that industrial action at the Plane Creek Mill has taken the form of four full day stoppages, and four 1-hour stoppages, but that these would not have pushed the start of the season by two weeks;[211]
(e)   He contested that a 1-hour stoppage would lead to 18 hours in lost production and that the time it would take to stop a mill would depend on a number of variables. He provided that a short stop is a few hours, whereas a long stop is anything over 24 hours;[212]
(f)    He stated that depending upon how long the stop is going to be determines how long it takes to shut down the mill. For example, if it is going to be a short stop of an hour or two, then it can be shut down quickly. They are able to leave the product as is and then start it back up to continue crushing again. The startup could take from four to eight hours depending on whether the boilers have shut down and how much they cooled down;
(g)   For a 24 hour plus period, the shutdown can take four to six hours to crush the remaining product;[213]
(h)   He provided the following rough estimates for the relevant steps in shutting down a mill:
a.Workforce stops tipping bins into milling train and crushes the remaining product (approximately 25 minutes);
b.Shut down the #2 boiler and drop off the #3 alternator (approximately 1 hour)
c.Process the product in the evaporator vessels (approximately 2 hours);
d.Process the products in the pans and shut down the injection water (approximately 2 hours);
e.Process the products in the centrifugal (approximately 1 hour); and
f.Reduce load and drop off the #4 alternator (approximately 1-2 hours);[214] and

(i) Some of the above steps can be taken at the same time and he would estimate the total time to shut down for a short stop is 4-5hours.[215]

During cross examination, Mr Martin clarified that;

(a)   He could recall the first names of people who told him they were earning more and that these people were ‘Tom’, ‘Jim’, ‘Nathan’, and ‘Ben’ but that only ‘Jim’ told him that he was earning more. He could not recall if ‘Ben’ told him he was earning more;[216]
(b)   Industrial action during the maintenance season will attribute some time to the later finish of the crushing season;[217]
(c)   The estimates given above at (h)a.-f. are in the context of a forced shut down due to a rain stop or loss of cane;[218]
(d)   The total estimate of time to shut down for a short stop could be longer than 4-5 hours;[219] and
(e)   The total time to shut down prior to the one-hour stoppage and to start up again could add up to 8-10hours or longer.[220]

Observations

Mr Martin provided his view of the issues traversed. Some of the evidence he gave was hearsay. The main concern is that unfortunately, again his evidence varied widely from the evidence of other individual employees as to the impact of the 1-hour stoppages, and in this respect I preferred the evidence of Mr McLeod as he had more experience and in his role a broader overview of the entire Applicant’s operation including all aspects of the operations and the different roles required to ensure its optimum effectiveness.

Evidence of Dr Margaret McKenzie

Dr McKenzie prepared two statements in these proceedings. She gave evidence that she is a Senior Economist employed by per Capita. She explained that per Capita is an independent public policy think tank. She gave evidence that she holds a Bachelor of Arts (Honours) in Anthropology from Monash University, a <aster of Economics and a PhD in Economics from Birbeck College in London.[221]

Dr McKenzie was provided with:

(a)   a letter of engagement by Hall Payne;[222]
(b)   a copy of the Application in these proceedings;[223]
(c)   the witness statement of Eric Motti;[224]
(d)   the witness statement of Istvan Torok;[225]
(e)   the witness statement of John Seedhouse;[226] and
(f)    the witness statement of Mark Greenwood.[227]

In Dr McKenzie’s first report, she answers a number of questions put to her by Hall Payne including:

The contribution of the sugar industry to Australian gross domestic product directly and indirectly;
The contribution of Wilmar Sugar’s operations to Australia’s sugar manufacturing industry and to Australia’s gross domestic product directly and indirectly;
The contribution of the sugar industry to the national workforce directly and indirectly;
The contribution of Wilmar Sugar’s operations to the national workforce directly and indirectly;
The contribution of the Sugar manufacturing industry to Queensland gross state product directly and indirectly;
The contribution of Wilmar Sugar’s operations to gross state product directly and indirectly;
The contribution of the sugar manufacturing workforce to Queensland’s workforce directly and indirectly;
And a number of key questions about the impact of the industrial action. [228]

Dr McKenzie was subsequently provided a copy of Mr Lawrence’s report and she produced a second statement providing her comments on that report.[229] I refer to Dr McKenzie’s evidence in her report and in cross examination in respect of Mr Lawrence’s report at paragraph [68] of this decision.

Observations

On Dr McKenzie’s evidence of industrial action resulting in a loss of 14 days at 18 hours production could cause lost revenue of $86.6 million.[230] This is not insignificant.

Mr Lawrence provided feedback on Dr McKenzie’s report and explained the contrasting approach she had taken as opposed to him.[231] Mr Lawrence was provided more time to review Dr McKenzie’s report and he came back later in the day to do that. He later returned and provided his feedback to Dr McKenzie’s evidence.[232] His comments also included some criticism that the modelling that underpinned her report was not available to analyse.[233] This is the same complaint made of Mr Lawrence’s report and just as that caused me to have some concern about those parts of the report that are impacted by the modelling in terms of its probative value, I consider it appropriate to apply that same weight to those aspects of the McKenzie report.

I note Mr Lawrence disputes that Dr McKenzie has not used any multiplier.[234] In my experience economists always apply some multiplying factor in order to measure the ripple effect of expenditure. I am unable to accept Dr McKenzie’s proposition that there are no ripple effects for the spending of that revenue and its impact on other areas of the economy. On that basis I prefer Mr Lawrence’s evidence that there should be a multiplier.

I had some difficulty with Dr McKenzie’s evidence. I found her responses lacking clarity, perhaps this was due to the short turnaround during which she was required to produce her evidence and the lack of opportunity to consult with Mr Lawrence before producing her report and giving her evidence. One criticism of concern to me is that in Dr McKenzie’s report when she measured the losses in terms of their share of the Queensland economy, she measured the Sugar manufacturing revenue. This is not correct because it ignores the direct losses of the cane growers who have even more significant loses than Wilmar.[235] For this reason and others set out, in assessing the second limb I preferred the evidence of Mr McLeod, Mr Seedhouse, Mr Greenwood and Mr Lawrence.

Notwithstanding that I did have regard to Dr McKenzie’s evidence and agreed that the impact was not of great significance to the Australian economy as a whole however none of her evidence persuaded me against a finding that the protected industrial action has threatened, is threatening or would threaten to cause significant damage to an important part of the Australian economy.

Evidence of Mr Trevor Dibben

Mr Dibben provided a witness statement. He gave evidence that he had been employed by Wilmar as a boiler operator at the Proserpine Mill for 32 years, ceasing employment in March 2024.[236]

Mr Dibben gave evidence about the impact of a 1-hour stoppage to the Proserpine Mill. His evidence was given in the context of his experience as a boiler operator. I summarise the key elements of Mr Dibben’s evidence as:

(a)   The evidence given by Mr Motti and Mr McLeod regarding the impact of a 1-hour stoppage was inaccurate;[237]
(b)   Based on his experience, once the tasks necessary to stop the boiler have been completed, the total disruption arising from a 1-hour stoppage could total 10 hours. This is comprised of approximately 4-5 hours to stop a boiler safely, up to 6 hours to restart the boiler, and the 1-hour stoppage itself;[238]
(c)   The mill can sit idle when a normal stop occurs. In this case, the stoppage is 4-5 hours, and the restart process may take up to 2 hours;[239]
(d)   While a stoppage of over 24 hours would result in a startup time of 12 hours, a 1-hour stoppage would result in a startup time of only 5-6 hours;[240]
(e)   It is unlikely that a 1-hour stoppage would result in a production halt of at least 19 hours;[241]
(f)    In the event of a blackout, after power is restored, it takes approximately 5-6 hours for the factory to be restored to its full operational capacity. This is comprised of 1-2 hours to restart the first boiler, 40 minutes to restart the generator (which occurs concurrently with the restart of the first boiler), 2 hours to restart the second and third boilers, and 1 hour to resume process plant heating;[242] and
(g)   It has been the usual practice to store sugar juice in mixed juice tanks or any product in pan stage receivers, which gives employees the ability to stop safely after 5-6 hours.[243]

During cross-examination, Mr Dibben stated as follows:

(a)   Shutting down the boilers involves 2-3 hours of preliminary steps before the 4-5-hours process of shutting the boilers down occurs;[244]
(b)   In relation to restarting the boilers, while every situation is different, it takes approximately 6 hours to restart the boilers, but it can sometimes be quicker;[245]
(c)   The longer periods described by Mr Motti and Mr McLeod involved the processing of the entire factory. For a 1-hour stop, the entire factory does not need to be processed;[246]
(d)   During a blackout scenario, employees may be faced with 3-4 hours where they have no control over the factory and are unable to supervise and monitor the boilers and generation equipment.[247] While the employees are physically present during a blackout, they are effectively “sitting in the dark in the shed doing nothing”;[248]
(e)   The time it takes to run the mill down and run the mill up will vary from case to case, based on the stage of the manufacturing process that has been reached;[249] and
(f)    The restart time would also be affected by a situation where the plant has been shut down for one hour, with no employees physically in attendance or monitoring boilers remotely, as compared to a situation where the boilers are being supervised during a stoppage.

Observations

Mr Dibben gave evidence from his perspective as a boiler maker. His evidence was at odds with other employee witnesses. I accept parts of his evidence when it comes to the boiler restart for example however, I prefer the evidence of Mr McLeod as he has more experience and in his role, a broader overview of the entire Applicant’s operation including all aspects of the operations and the different roles required to ensure its optimum effectiveness.

Evidence of Ms Nicole Frisken

Ms Frisken provided a witness statement. She is a State Organiser of the AMWU. Ms Frisken gave evidence that the AMWU’s focus in negotiating for a replacement agreement was to negotiate a reasonable wage increase and review the trade classifications reclassification process. Industrial action was a potential part of the AMWU’s bargaining strategy.[250]

Given that, on Ms Frisken’s evidence, the taking of industrial action is a decision for the AMWU’s members, she could not say with any certainty what, if any, industrial action will be taken next, and that the AMWU taking or not taking further protected action were equally possible. However, Ms Frisken’s evidence was that she thought it “highly unlikely” that an indefinite stoppage would be notified as the next step, considering this a “significant escalation”.[251]

Observations

Ms Frisken’s evidence about the impact of the 1-hour stoppages is largely hearsay.[252]

Evidence of Mr Liam Sharkey

Mr Sharkey provided a witness statement. He gave evidence that he is an Organiser for the CEPU as part of their ETU branch.[253]

Mr Sharkey gave evidence about the work performed at Wilmar’s mills and the employment makeup of Wilmar. He stated that historically people would line up for jobs at the sugar mills. He provided that over the last ten years or so since Wilmar took over the Mills in the Herbert, Burdekin and Mackay regions that the terms and conditions of employment have fallen behind in the industry, with workers seeking minimal wage increases.[254]

Mr Sharkey also described the bargaining that has been done to date for the current agreement, providing that it commenced on or about 20 March 2023 and detailed the various actions and the steps leading to the application for a Protected Action Ballot order. [255] ;

Mr Sharkey provided an overview of the industrial action taken to date at the Wilmar sites.[256]
During cross-examination, Mr Sharkey stated as follows:

(a)   His comments about people lining up to work at the Mills in the past was based on information provided to him by long-term workers/delegates and members of the CEPU who work in the Mills, and named a Mr Michael Carr as one such person;[257]
(b)   He could not recall off the top of his head how much more employees at Wilmar were earning in comparison to the Award;[258]
(c)   He stated that there have not been any discussions around any further industrial action at this stage and it was an open question as to whether there would be more;[259]
(d)   He added that his members are part of communities and understand the impacts that industrial action can have on their communities. He described the notices as indicating minimal action to be taken and providing more than the required 4 days’ notice to Wilmar. He stated he did not believe industrial action will increase as his members were very aware of the potential impacts it could have;[260]
(e)   Mr Sharkey stated that he did not know the details around how long a 1-hour stoppage would disrupt the operation of the Mill. He stated that realistically, the stoppages that have been notified equate to one hour of production for their members;[261] and
(f)    Mr Sharkey acknowledged that he had said the impact of the stoppages were minimal but when asked what the impact was, he said he didn’t know. When asked how those two statements can be consistent with one another he said he didn’t know.[262]

Observations

Some of Mr Sharkey’s evidence amounted to hearsay and I can place little weight on that. He made a number of assertions for which I could not see any bases. It was clear that Mr Sharkey feels very passionately about the position of the unions in respect of the proposed enterprise agreement and in considering his evidence together with his correspondence to members dated 4 June 2024,[263] I am satisfied that it is unlikely that the industrial action will cease beyond that which has been currently notified.

Evidence of Mr Michael Backo

Mr Backo provided a witness statement. He gave evidence that he has been employed by the Applicant as a Boiler Operator at Inkerman Mill for over 20 years.[264]

Mr Backo also gave evidence about the crushing season, maintenance of the plant equipment and the impact of industrial action that is limited to a perspective on the boiler shutdown. The key elements of Mr Backo’s evidence is summarised as follows:

(a)He attributes delays in both the crushing season and the maintenance of the plant equipment to staffing issues, including the mill being short staffed and the introduction of contractors who do not possess sufficient expertise with the plant and equipment at the mills;[265]
(b)He provides the following information on shutting down the boilers:
a.Once all the processes and necessary tasks are completed and the alternator is offline, the boiler station would take a maximum of 4 hours to cool down;
b.A boiler can remain on idle for a few hours with a boiler operator and operator assistant;
c.It takes approximately 4 hours to ensure a safe shutdown;
d.It takes approximately 4 hours to ensure a safe start up;[266]
(c)He disagrees with the Applicant’s assertion that it takes a minimum of 12 to 24 hours to stop the mill, instead stating it takes approximately 5 hours. Rather it would take 12 to 24 hours to boil out, which is done if the factory is being shutdown for a week or more;[267]
(d)He disagrees with the Applicant’s assertion that it takes a minimum of 6 to 12 hours to start the mill, instead stating it takes approximately 4 hours;[268]
(e)Using the example of a brown or blackout event, he states that all operations come to an immediate stop and it takes approximately 4 hours to start back up after a brown or blackout event, depending on the circumstances of the event;[269]
(f)Whilst the Applicant has stated that for a 1 hour stop, lost production is likely to be at least 18 hours (assuming 12 hours for the shutdown, then 6 hours to safely start the plant back up), plus the 1 hour stoppage, totalling -19 hours of lost production, Mr Backo disagrees. He states in his experience that it takes approximately 9 to 10 hours, inclusive of the 1 hour stoppage;[270] and
(g)He states that in his experience, after a stop and within 4 to 5 hours, it would not be necessary to monitor gauge glasses and it would be safe to leave the station, unless there is bagasse in the bin, which would require monitoring for potential hazards.[271]

During cross-examination, Mr Backo provided further evidence that:

(a)   He agreed that during crushing season delays could be caused by wet weather and breakdowns, in addition to industrial action;[272]
(b)   He agreed that some of the delays in the 2024 maintenance season have been contributed to by industrial action, as there had been industrial stoppages, intermittent stoppages and some overtime bans;[273]
(c)   He confirmed that the initial start date for the crushing season at Inkerman Mill was 4 June 2024, but crushing season had instead commenced on 9 June 2024;[274]
(d)   When asked about the length of time the ‘processes and necessary tasks’ that must occur prior to a boiler shutdown require, as referred to in his written statement of evidence, he confirmed it would take approximately 1 hour.[275]

Observations

Mr Bakko made appropriate concessions and noted the limitations of his evidence. He acknowledged that the industrial action had contributed to the delays in the crushing season beginning. In respect of his view on the impact of a 1-hour stoppage, I preferred the evidence of Mr McLeod given his experience, his role and his responsibility within the company that gave him an oversight across all functions, sites, Mills and roles within the Wilmar operations.

Wilmar filed an expert report from Mr Lawrence. I accept the Lawrence report the finding that the Sugar Manufacturing Industry contributes $2.3 billion directly to the Queensland economy.[321]

I note that in Svitzer Australia Pty Ltd v Australian Maritime Officers’ Union, The,[322] Deputy President Easton opined:

“…It is an unremarkable feature of expert economic evidence that estimations and assumptions are applied to large sums of money...”[323] and

“ …There is no evidence to contradict or support Mr Houston’s estimate that 5-10% of trade will be lost, and I am in no better position to provide an estimate than he is. In fact, in light of Mr Houston’s experience and expertise, I am in a markedly inferior position to make such an estimate….”[324] and

“… However, I am able to forensically assess whether Mr Houston’s estimate is a sufficiently sound basis to determine Svitzer’s application under s.424. I do not have to determine the actual value of the threatened losses in the same way that a judge might have to calculate actual loss. From Mr Houston’s evidence I can comfortably assess the order of magnitude of the potential damage.[325]..”.[326]

My Consideration of the Second Limb

There was debate between the parties as to whether any future industrial action should be considered. For the purposes of establishing the first limb it is unnecessary to consider this because the notified stoppages already satisfy the first limb. However, in respect to the whether any damage should be accounted in the second limb I note Wilmar’s submissions that the word probable should result in a finding that future industrial action should be considered.[327]

I accept that the arguments that support this contention are:

(a)   The meaning of the word probable, on its plain meaning means more than something that is already known but rather something that is likely to be;
(b)   The history of industrial action taken to date in respect to this Agreement;[328]
(c)   The media articles that report statements by the various unions indicating an intent to ramp up, expand or continue action;[329] and
(d)   The stalemate that has been reached, the entrenched and passionate views of the parties to fight for more than has been offered.[330]

In respect of calculating the impact, it is my view that these arguments may well be made out and if they are then a further calculation would need to take account of what that impact might include for any probable protected industrial action. However, I have only sought to calculate the impact of the protected industrial action that has already been notified.

Impact of the Notified 4 x 1-hour stoppages

I am satisfied based on all of the evidence (noting my preference for Mr McLeod’s evidence in respect of the consequence of a 1-hour stoppage) that for every 1-hour stoppage of work, 6 hours of production is lost at the Sarina distillery[331] and between 12 and 14 hours of production is lost at each of the other mills.[332] For the purposes of my calculation, I will apply the lower end of Mr McLeod’s evidence of 12 hours lost per mill.[333]

On Mr Seedhouse’s evidence,[334] which is based on 18 hours of lost productivity in the for a 1-hour stoppage,[335] the losses are as follows:

(a) Mills
Lost Revenue to Wilmar $3.754 million per day (approximately)
Loss Revenue to Canegrowers $5.405 million per day (approximately)
Total Lost Revenue $9.159 million per day (approximately)

(b) Bioethanol
Lost Revenue $80,122 per day (approximately)

(c) Cogeneration
Lost Revenue $487,325 per day (approximately

Mills lost revenue: I have discounted the estimated lost revenue to take into account my finding that 12 hours of production will be lost rather than 18 hours. Mr Seedhouse’s estimate therefore reduces from $9.159 million to $6.106 million of lost revenue. There are four 1-hour stoppages currently notified so the total estimated loss is $24.424 million.

Bioethanol lost revenue: I have accepted Mr Power’s evidence that 6 hours of production is likely to be lost as a result of a 1-hour stoppage in the Sarina Distillery, which means Mr Seedhouse’s estimated reduces from $80,122 to $26,707.33 per day. There are four stoppages notified so the total estimated loss is $106,829.

Cogeneration lost revenue: In my calculation there was no evidence before me to lead me to discount Mr Seedhouse’s estimate of $487,325 per day. There are four stoppages currently notified and the total estimated loss is $1.9493 million.

The total estimated direct revenue lost from the notified stoppages is therefore $26.48 million. This does not take into account any multiplier effect referred to in the expert reports. I note that Mr Lawrence applied a multiplier of 0.53 to the revenue of Wilmar sugar when considering its impact in the Queensland economy and that Dr McKenzie considered that this seemed high.[336] Dr McKenzie does not argue there should be no multiplier. It would be nonsensical to suggest no multiplying effect in economic terms. On that basis I am satisfied it is appropriate to apply a more conservative multiplier of 0.3. This would result in a figure of $34.424 million. This is a significant figure in absolute terms for the notified industrial action.

I am therefore satisfied that the lost revenue for the 4 notified 1-hour stoppages is at least $34.424 million. Having regard to the definition of significant discussed at [129] of this decision and referencing Sucrogen, “significant” meaning “important, notable and consequential,” I am satisfied these figures are significant.

Is the damage to an important part of the Australian economy?

The parties contested whether Wilmar’s contributions to the sugar industry formed the basis of an ‘important part of the Australian economy’.

I have referenced the definitions of important and part at paragraphs [130] and [131] of this decision. I am not persuaded by the submissions of the Respondents on this issue. The evidence of Mr Greenwood which I accept is:

that Wilmar is responsible for producing 50% of all sugar in Australia;[337]
that Wilmar is responsible for producing 50% of the total industry revenue;[338] and
based on the Queensland Sugar Industry report for the financial year 2020/2021, the Queensland Sugar industry contributed 19,673 direct and indirect full time equivalent jobs.[339] Even if it is argued that this is based on the Lawrence Report and I consequently provide no weight to it, I note that in Sucrogen, it was found that the Sugar industry employee approximately 22,000 people directly and approximately 110,000 people in upstream and downstream economic sectors dependent on the sugar sector.[340] As I noted earlier, there was no evidence put before me of any significant change to the industry since Sucrogen despite the parties relying on Sucrogen in their submissions.
The contribution of Wilmar’s revenue to the Queensland economy at 7.3% of the total GRP in North Queensland region, 3.8% of GRP in the Mackay region and 1.9% of the GRP in the Far North Queensland region.[341]

On the basis of the evidence before me, I am satisfied that the damage is indeed to an important part of the economy. Therefore, in consideration of all of the elements in the second limb I am satisfied on the evidence that the protected industrial action has threatened, is threatening or would threaten to cause significant damage to the Australian economy or an important part of it.

Orders under s.424

Having found that the protected industrial action scheduled to occur from 2 July 2024. were likely to cause significant damage to the Australian economy or an important part of it, I was required to make an order under s.424 to either suspend or terminate the protected industrial action.

It is a matter of discretion for the tribunal to suspend or terminate the protected industrial action (provided one option is chosen).[342] Wilmar did not ask for orders terminating the protected industrial action and in my view it is not appropriate to do so in any event.

The remaining matter of contention was the duration of the suspension order. Wilmar submitted that the suspension order apply for a period of three months. The Respondents argued that if an order was to be made, the order should only apply to the duration for the immediately notified action or it should be terminated[343].

In Qantas,[344] the Full Bench gave primary consideration to the effect of the protected action on the wider aviation and tourism industries,[345] and they considered they “should do what we can to avoid significant damage to the tourism industry.”[346]

Having regard to the fact that a consequence of making any orders pursuant to s.424 of the Act is that any industrial action then taken, will lose the protection afforded to it by virtue of s.418 of the Act as set out in s.413(7). I am conscious that this may have a significant impact on the bargaining party’s ability to bring pressure to bear on the negotiations which is an important right in collective bargaining as a result of losing those legal protections.

I note and agree with Deputy President Easton’s observations in Svitzer,[347] that:

“On many occasions the Commission has formulated orders under s.424 by reference to the history of bargaining between the parties and predictions or concerns about future bargaining. That is, in formulating orders under s.424 the Commission has considered matters well beyond the avoidance of the dangers described in s.424(1)(c) and well beyond the prevention of the damage described in s.424(1)(d).”[348]

I also have had regard to the orders made by Commissioner Spencer in Sucrogen[349] that appear to be just as relevant in this present matter:

“The suspension of the industrial action on the basis of the legislative criteria in s.424(1)(d) provides a cooling off period in this now protracted dispute. The short period of the suspension allows for the parties to have what now must be termed final negotiations in this matter, but also relieves the pressure on the employees (many of whom are particularly dependant on this seasonal employment), the growers to harvest their cane and the millers to progress the crush at this important stage whilst the CCS content is still maintained at suitable levels and prior to the prospect of rainfall. The leverage of the employees to then continue to take protected industrial action is maintained and it is anticipated that in this four week period, urgent discussions without the threat of industrial action from both sides, will bring about an agreement on the very few remaining issues between the parties.”[350]

Having regard to the lengthy negotiations that have occurred and the escalation of the stalemate reached by the parties in order that an agreement might be reached, I am loathe to undermine the ordinary course of things any more than is necessary.

In all of the circumstances, I have determined that a period of 6 weeks would permit the parties to have a short cooling off period, permit the crushing season to properly get underway. So that Wilmar understands they are not off the hook in terms of the ongoing bargaining, the suspension is not for a long time and the parties must come to an agreement on the outstanding matters such that the remainder of the crushing season can then continue without disruption.

DEPUTY PRESIDENT

Appearances:

Mr J Murdoch KC for Wilmar. Instructed by Minter Ellison Lawyers
Mr C Massey for the CEPU, instructed by Hall Payne Lawyers
Mr L Saunders for the AMWU, instructed by Maurice Blackburn Lawyers
Mr T Spence for the AWU

Hearing details:

27, 28 and 30 June 2024
Brisbane

[1] Fair Work Act 2009 (Cth) s.424(1)(b).

[2] Ibid s.424(1).

[3] Ibid s.424(1)(d).

[4] Fair Work Act 2009 (Cth) s.596(2)(a).

[5] Transcript Day 2, Friday 28 June 2024, PN1719.

[6] Ibid, PN1721.

[7] [2021] FWCA 3319, AE511778

[8] PR773273, PR773270, PR773268

[9] DCB p.23

[10] DCB p.228.

[11] DCB p.230.

[12] s.424(3).

[13] DCB p.252, Exhibit A1 at [1].

[14] Ibid at [2].

[15] Ibid at [5].

[16] Transcript Day 1, Thursday 27 June 2024, PN124.

[17] DCB p.252, Exhibit A1 at [4].

[18] Transcript Day 1, Thursday 27 June 2024, PN129.

[19] Ibid PN133.

[20] Ibid PN134.

[21] Ibid PN123-PN136.

[22] Ibid PN137-PN138.

[23] Exhibit A1 at [6], DCB p.252.

[24] Ibid.

[25] Ibid at [13].

[26] Ibid at [15].

[27] Ibid at [16].

[28] Ibid at [18].

[29] Ibid at [19].

[30] Ibid at [20].

[31] Ibid at [21].

[32] Ibid at [22].

[33] Ibid at [22](a) –(h).

[34] Ibid at [8].

[35] Ibid.

[36] Ibid at [9].

[37] Ibid.

[38] Transcript Day 1, Thursday 27 June 2024, PN129-PN144.

[39] Ibid PN360 and PN386.

[40] Exhibit A1 at [10]-[11], DCB p.252.

[41] Ibid at [11].

[42] Ibid at [24].

[43] Ibid at [25].

[44] Ibid.

[45] Ibid at [27].

[46] Ibid at [29].

[47] Ibid at [30].

[48] Ibid at [31].

[49] Ibid at [32].

[50] Ibid at [32].

[51] Ibid at [33].

[52] Ibid at [34]-[36].

[53] Transcript Day 1, Thursday 27 June 2024, PN129-PN227, PN253 – PN259.

[54] Exhibit A2, DCB p.17 and Exhibit A3, DCB p.446.

[55] Ibid [10]-[13].

[56] Ibid [14]-[45].

[57] Ibid at [27] and EM10, DCB p.23 and 227-228.

[58] Ibid at [28], DCB p.229-230.

[59] Exhibit A3, DCB p.446-447.

[60] Transcript Day 1, Thursday 27 June 2024, PN129-PN227, PN306-PN322.

[61] Exhibit A4 at [1], DCB p.260.

[62] Transcript Day 1, Thursday 27 June 2024, PN344.

[63] Exhibit A4 at [2], DCB p.260.

[64] Ibid, DCB p.260 and DCB p.266 at [4] and MG1.

[65] Ibid p.261 at [7].

[66] Ibid at [8].

[67] Ibid.

[68] Ibid [9].

[69] Ibid [10].

[70] Ibid [11].

[71] Ibid [12].

[72] Ibid [13].

[73] Ibid [14].

[74] Ibid at [15] and MG2.

[75] Ibid at [16]-[17].

[76] Ibid [17]-[18].

[77] Ibid [21]. See also Transcript Day 1, Thursday 27 June 2024, PN384.

[78] Ibid at MG4, DCB p.307.

[79] Transcript Day 1, Thursday 27 June 2024, PN370-372.

[80] Ibid PN331-PN334.

[81] Ibid MG3 as tended at hearing day 1 titled “The Bureau moves to La Nina watch”.

[82] Exhibit A4 Ibid at [26].

[83] Ibid at [26] - [27], DCB p.263-264.

[84] Transcript Day 1, Thursday 27 June 2024, PN364.

[85] Ibid PN338.

[86] Ibid PN347.

[87] DCB p.841 Exhibit A4 at [21]

[88] Ibid PN360 and PN386.

[89] DCB p842. Exhibit A4 at [35] MG-5

[90] DCB p842-843 Exhibit A4 at [36]-[37]

[91] Transcript Day 1, Thursday 27 June 2024, PN387.

[92] Ibid PN384.

[93] Exhibit A5, DCB p.13-16.

[94] Transcript Day 1, Thursday 27 June 2024, PN409.

[95] Ibid PN413-443.

[96] Ibid PN440.

[97] Exhibit A5, DCB p.13-16.

[98] Ibid [4]-[20].

[99] Exhibit A6 RL1, DCB p.394.

[100] Ibid, DCB p.393.

[101] Transcript Day 2, Friday 28 June 2024, PN507.

[102] ibid, PN508.

[103] Ibid, PN513

[104] Ibid, PN514

[105] Transcript Day 2 28 June 2024 PN1396-PN1420.

[106] Ibid PN1487-1488

[107] Ibid PN1519-PN1525.

[108] Ibid PN1537-PN1544.

[109] Ibid PN1489-PN1492, PN1513-PN1514.

[110] Closing submissions of the AWU at [61].

[111] Mineralogy Pty Ltd v Sino Iron Pty Ltd and Ors [2015] FCA 825; 329 ALR 1 {32].

[112] Construction, Forestry, Maritime, Mining and Energy Union, Mt Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399 (Mt Arthur Coal). At [37].

[113] See paragraph [9] of this decision. See also Transcript Day 2 28 June 2024 PN474-PN489.

[114] Exhibit R6, DCB p.991-992.

[115] Exhibit R6, DCB p.993-994.

[116] Transcript Day 2, 28 June 2024 PN1170.

[117] Ibid PN 1171-PN1172.

[118] Exhibit R1, DCB p.554-560.

[119] Ibid at [8].

[120] Ibid at [9].

[121] Ibid at [11].

[122] Ibid at [13].

[123] Ibid.

[124] Ibid at [12].

[125] Ibid at [11].

[126] Ibid at [14].

[127] Ibid at [15].

[128] Ibid at [16].

[129] Ibid.

[130] Ibid at [17].

[131] Ibid at [20].

[132] Ibid.

[133] Ibid at [21].

[134] Ibid at [22].

[135] Ibid at [24].

[136] Ibid at [25].

[137] Ibid at [26].

[138] Ibid at [30].

[139] Ibid at [31].

[140] Ibid at [32]-[33].

[141] Ibid at [34]-[35]

[142] Ibid at [36].

[143] Ibid at [38].

[144] Ibid at [31].

[145] Ibid at [41].

[146] Ibid at [42].

[147] Ibid at [44].

[148] Transcript Day 2, Friday 28 June 2024, PN590-PN591.

[149] Ibid at PN596-PN600.

[150] Ibid at PN601.

[151] Ibid at PN609- PN612.

[152] Ibid at PN613-PN623.

[153] Ibid at PN630-PN631.

[154] Ibid at PN632 and PN664 and PN690.

[155] Ibid at PN643 and PN647.

[156] Ibid at PN663.

[157] Ibid at PN665-PN666.

[158] Ibid at PN672.

[159] Ibid at PN688.

[160] Ibid at PN784.

[161] Exhibit R2, DCB p.507.

[162] Ibid at [6]

[163] Ibid at [7]

[164] Ibid at [9]-[10]

[165] Ibid at [12]

[166] Ibid at [18]

[167] Ibid

[168] Ibid [20]

[169] Ibid [21]

[170] Ibid [22]

[171] Ibid [24]

[172] Transcript Day 2, Friday 28 June 2024, PN869-PN872.

[173] Ibid, PN876-880

[174] Ibid, PN881-882, PN894-898

[175] Exhibit R7, DCB p.552.

[176] Ibid at [7]

[177] Ibid at [12]

[178] Ibid at [11]

[179] Ibid at [14]

[180] Ibid at [15]

[181] Ibid at [16]

[182] Ibid at [17]

[183] Ibid at [18]

[184] Transcript Day 2, Friday 28 June 2024, PN922-923

[185] Ibid PN926

[186] Ibid PN928-930

[187] Ibid PN931

[188] Ibid PN932-935

[189] Ibid PN936

[190] Exhibit R8, DCB p.503.

[191] Ibid [5]

[192] Ibid at [8]

[193] Ibid

[194] Ibid at [10]-[11]

[195] Ibid at [12]

[196] Ibid at [15]-[17]

[197] Ibid at [21]

[198] Ibid at [22]

[199] Ibid at [27]

[200] Ibid at [29]-[30]

[201] Ibid at [32]

[202] Ibid at [35]

[203] Transcript Day 2, Friday 28 June 2024, PN974-979

[204] Ibid PN984

[205] Ibid PN987-989

[206] Exhibit R3, DCB p.562.

[207] Ibid at [5]

[208] Ibid at [6]

[209] Ibid at [7]

[210] Ibid at [10]-[11]

[211] Ibid at [16]

[212] Ibid at [18]-[19]

[213] Ibid at [20]

[214] Ibid at [24]-[25]

[215] Ibid at [26]

[216] Transcript Day 2, Friday 28 June 2024, PN1036-1048

[217] Ibid at PN1063-1064

[218] Ibid at PN1097

[219] Ibid at PN1116

[220] Ibid at PN1120-1122

[221] Exhibit R5 at [1]-[3], DCB p.566.

[222] Ibid MM1, DCB p.568

[223] Ibid DCB p.577.

[224] Ibid DCB p.587.

[225] Ibid DCB p.829.

[226] Ibid DCB p.834.

[227] Ibid DCB p.838.

[228] Ibid MM3, DCB p.975-987.

[229] Exhibit R6, DCB p.988.

[230] Exhibit R5, DCB p.979 at [10].

[231] Transcript Day 2 28 June 2024, PN 513-517.

[232] Ibid PN1164

[233] Ibid PN1166-1167.

[234] Ibid PN1170.

[235] Exhibit R5, MM3 at [27] to [33], DCB pp.982-983. See also Exhibit A5 at [20(b)], DCB p.16.

[236] Exhibit R9, DCB p.464.

[237] Ibid at [10].

[238] Ibid.

[239] Ibid.

[240] Ibid.

[241] Ibid.

[242] Ibid.

[243] Ibid.

[244] Transcript Day 2, Friday 28 June 2024, PN1616-1620.

[245] Ibid PN1622.

[246] Ibid PN1623.

[247] Ibid PN1624-1625.

[248] Ibid PN1627.

[249] Ibid PN1631-1638.

[250] Exhibit R11, DCB p.476.

[251] Ibid.

[252] Exhibit R11 at [18(a)] –[18(h)], DCB p.478 and Exhibit R11 at [21], DCB pp.479-480.

[253] Exhibit R4, DCB p.510.

[254] Ibid at [13]

[255] Ibid at [22]

[256] Ibid at [33]-[46]

[257] Transcript day 2, 28 June 2024, PN1738

[258] Ibid at PN1745-1746

[259] Ibid PN1777

[260] Ibid PN1779

[261] Ibid PN1780-1782

[262] Ibid at PN1782

[263] DCB, p226-227, last full sentence.

[264] Exhibit R12, DCB p 462 at [1]-[4].

[265] Ibid at [12].

[266] Ibid at [12](a), (c)-(e).

[267] Ibid at [12](f).

[268] Ibid at [12](g).

[269] Ibid at [12](i)-(j).

[270] Ibid at [12](h).

[271] Ibid at [13].

[272] Transcript Day 2, Friday 28 June 2024, PN1884-1886.

[273] Ibid at PN1887-1893.

[274] Ibid at PN1894-1896.

[275] Ibid at PN 1900.

[276] Exhibit R13, DCB p.458-459.

[277] Ibid.

[278] Transcript Day 2 28 June 2024 at PN1959.

[279] Ibid PN1959-PN1960.

[280] Ibid PN1961.

[281] Ibid PN1964.

[282] Ibid PN 1961.

[283] s.424(1)(a)

[284] s.424(1)(b).

[285] s.424(1)(d).

[286] s.424(1).

[287] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August 2009) [29], [(2009) 187 IR 119].

[288] State of Victoria - Department of Human Services v Health Services Union [2012] FWA 8376 (Gregory C, 4 October 2012) [80], [(2012) 225 IR 306].

[289] Sucrogen Australia Pty Ltd v The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FWA 6192 (Spencer C, 27 August 2010) [10] (Sucrogen); citing The New Shorter Oxford English Dictionary.

[290] BHP Coal Pty Ltd; Hay Point Services Pty Ltd v Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PR903492 (AIRC, Bacon C, 17 April 2001) [38]; citing the Macquarie Dictionary (2nd Revised Edition).

[291] Sucrogen at [10].

[292] [2010] FWA 6192.

[293] Transcript Day 3, Sunday 30 June 2024, PN2024.

[294] See Sucrogen at [7] and Exhibit A at [3] DCB p.252.

[295] Ibid at [18] – [19] and Exhibit A4 at [4]-[9] DCB p.260-261.

[296] [2011] FWAFB 7444.

[297] On judicial review in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [67]-[70], [129] and [176]-[180] the Full Court found that on the Full Bench’s findings “no order could be made terminating or suspending the protected industrial action being engaged in by any of the unions.” The Full Court ultimately did not disturb the Full Bench’s order because they found that the order terminating Qantas’ protected industrial action was properly made, and by reference to s.413(7) found that “the effect of the FWA order meant that neither side was able to engage in the industrial action which it had with the immunity offered by s 415” (at [90]).

[298] [2016] FWC 8826.

[299] Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union (2018) 281 IR 147, [2018] FWCFB 4120.

[300] [2017] FWC 2533.

[301] Re Sydney Trains (2018) 277 IR 389, [2018] FWC 632.

[302] [2019] FWC 68

[303] [2022] FWC 493.

[304] Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214 IR 367, [2011] FWAFB 7444.

[305] Minister for Industrial Relations for the State of Victoria v Australian Workers' Union & Ors[2016] FWC 8826, Minister for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd& Ors[2017] FWC 2533 and Application by BP Refinery (Kwinana) Pty Ltd [2019] FWC 68.

[306] Sucrogen Australia Pty Ltd v The Australian Workers' Union and others [2010] FWA 6192 and Re Sydney Trains (2018) 277 IR 389, [2018] FWC 632.

[307] Sucrogen Australia Pty Ltd v The Australian Workers' Union and others [2010] FWA 6192 and Re Minister for Tertiary Education, Skills, Jobs and Workplace Relations (2011) 214 IR 367, [2011] FWAFB 7444.

[308] Fair Work Act 2009, s.424(2)(b)(i).

[309] Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, [2012] FCAFC 65 at [93]-[94] and [173] and Schweppes Australia Pty Ltd v United Voice (2011) 214 IR 282 at 294, [2011] FWA 9329 at [57].

[310] [2010] FWAFB 6021.

[311] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 208, (2000) 99 IR 309 at 317, [2000] HCA 47 at [28].

[312] See by analogy Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360 at 376-377, [2010] FWAFB 6021 at [47].

[313] [2022] FWC 493 [55]-[58] and [63]-[67].

[314] Exhibit A2, EM14, DCB pp.233-241.

[315] Exhibit A4, MG3, see also my assessment of the evidence of Mr Greenwood at [54].

[316] Exhibit R1, referenced in this decision at [67](d) to (f).

[317] Sucrogen at [13].

[318] Mr Bryce Caltabiano Transcript Day 2, Friday 28 June 2024, PN936; see also Mr Scott Power Transcript Day 2, Friday 28 June 2024, PN596-PN600.

[319] s.424(1)(d).

[320] BHP Coal Pty Ltd & Anor v CFMEU & Ors at [40]

[321] Exhibit A6, RM1, DCB p.399.

[322] [2022] FWC 493.

[323] Ibid [79].

[324] Ibid [80].

[325] See by analogy Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd (2010) 198 IR 360 at 376-377, [2010] FWAFB 6021 at [47].

[326] [2022] FWC 493 [81].

[327] Transcript Day 3, 30 June 2024 at PN2012

[328] Exhibit A2 at [16]-[22], DCB p.22.

[329] See paragraph [42] in this decision in respect of Mr Motti’s evidence.

[330] Motti A2 [13(z)] DCB p.21 and A2 at EM11 DCB p.227-228. See also Email from Mr Marano DCB p.547.

[331] Exhibit R1 at [44], DCB p.559.

[332] Exhibit A1 at [25], DCB p.257.

[333] Exhibit A1 at [25], DCB p.257.

[334] Exhibit A5 at [2], DCB p.16.

[335] Transcript Day 1, Thursday 27 June 2024, PN428.

[336] Exhibit R6, DCB p.993.

[337] Exhibit A4 at [8], DCB p.261.

[338] Ibid at [9].

[339] Ibid at [16].

[340] Sucrogen at [18]- [19.

[341] ExhibitA4 at [18], DCB pp.262-263.

[342] Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 [92].

[343] Transcript Day 3, Sunday 30 June 2024, PN2213-2215.

[344] [2011] FWAFB 7444.

[345] Ibid [15].

[346] Ibid [13].

[347] [2022] FWC 493.

[348] Ibid [101].

[349] [2010] FWA 6192.

[350] Ibid [46].

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