DECISION

Fair Work Act 2009
s.266—Industrial action related workplace determination

BP Refinery (Kwinana) Pty Ltd
v
Australian Workers’ Union, The
(B2019/4)

Industrial action related workplace determination.

Introduction and statutory framework

[1] BP Refinery (Kwinana) Pty Ltd (BP) is a private corporation that operates in Western Australia. Its primary business is to refine crude oil, manufacturing various refined fuels such as motor gasoline, diesel fuels, and aviation fuels. It is the largest oil refinery in Australia.

[2] For relevant purposes, BP is currently covered by the BP Refinery (Kwinana) Pty Limited & AWU Operations & Laboratory Employees Agreement 2014 (the 2014 Agreement). The nominal expiry date of the 2014 Agreement was 30 November 2017. The parties to the 2014 Agreement are BP, all operations and laboratory employees (collectively, the Employees) 1, and the Australian Workers’ Union (AWU).  

[3] In June 2017, the parties began negotiating for a proposed replacement of the 2014 Agreement. This process involved many bargaining meetings, and in May 2018, BP and the AWU participated in an interest based bargaining process with the Fair Work Commission (Commission). In October 2018, no agreement had been reached and the AWU applied to the Commission for a protected action ballot order. The protected action ballot order was granted 2 and employees of BP took protected industrial action in December 2018. On 4 January 2019, the Commission made an order pursuant to s 424(1) of the Fair Work Act 2009 (Cth) (the Act) (Termination Order) to terminate the protected industrial action.3

[4] The Termination Order was a “termination of industrial action instrument” as defined in s 266(2)(a) of the Act. In relation to such instruments, s 266(1) of the Act provides for the arbitration of outstanding bargaining issues through the making of a “workplace determination” as follows:

“266 Industrial action related workplace determination

(1) If:

(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b) the post-industrial action negotiating period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.”

[5] Sections 267 and 268 establish requirements concerning the content of an industrial action relation workplace determination as follows:

“267 Terms etc. of an industrial action related workplace determination

Basic rule

(1) An industrial action related workplace determination must comply with subsection (4) and include:

(a) the terms set out in subsections (2) and (3); and

(b) the core terms set out in section 272; and

(c) the mandatory terms set out in section 273.

Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275.

Agreed terms

(2) The determination must include the agreed terms (see subsection 274(2)) for the determination.

Terms dealing with the matters at issue

(3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-industrial action negotiating period.

Coverage

(4) The determination must be expressed to cover:

(a) each employer that would have been covered by the proposed enterprise agreement concerned; and

(b) the employees who would have been covered by that agreement; and

(c) each employee organisation (if any) that was a bargaining representative of those employees.

268 No other terms

An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).”

[6] Section 272 of the Act provides for the core terms that must be included in a workplace determination. It provides a workplace determination:

•  must include a nominal expiry date which must not be more than 4 years after the its operative date;

•  must not include terms that would not be about permitted matters or would be unlawful if the determination were an enterprise agreement or designated outworker terms;

•  must include terms such that the determination would pass the better off overall test under s 193 of the Act if the determination were an enterprise agreement; and

•  must not include a term that would, if the determination were an enterprise agreement, mean that the FWC could not approve the agreement because it contravened s 55 of the Act or because of the requirements in Subdivision E of Division 4 of Part 2-4 of the Act.

[7] Section 273 of the Act provides for the mandatory terms of a workplace determination. It provides that a workplace determination:

•  must include a term that provides a procedure for settling disputes about any matters arising under the determination and in relation to the National Employment Standards (NES); 4

•  must include the model flexibility term unless the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements); and

•  must include the model consultation term unless the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).

[8] Section 274(2) provides that an “agreed term” for the purposes of s 267(2) is “a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-industrial action negotiating period, agreed should be included in the agreement”.

[9] Section 275 sets out those factors which the Commission must take into account in determining the terms of a workplace determination as follows:

“275 Factors the FWC must take into account in deciding terms of a workplace determination

The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following:

(a) the merits of the case;

(b) for a low-paid workplace determination--the interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive;

(c) for a workplace determination other than a low-paid workplace determination--the interests of the employers and employees who will be covered by the determination;

(d) the public interest;

(e) how productivity might be improved in the enterprise or enterprises concerned;

(f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;

(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

(h) incentives to continue to bargain at a later time.”

[10] Section 276(1) provides that “A workplace determination operates from the day on which it is made”.

[11] Following the end of the post-industrial action negotiating period on 16 February 2019, BP and the AWU, being the bargaining representatives for the proposed agreement the subject of the Termination Order, had not settled all of the matters that were at issue during the bargaining for the agreement. Accordingly, the Commission is required to make a workplace determination which resolves the outstanding issues in accordance with the provisions of the Act, set out above. 5

[12] Pursuant to this task, this Full Bench heard evidence adduced by the parties and received submissions on 5 – 13 August 2019 and closing submissions on 1 November 2019.

Factual Background

BP and its workforce

[13] As earlier stated, BP refines crude oil to produce various refined fuels. In conducting this business, BP employs operators to operate the Kwinana Refinery (Operators) and laboratory employees to test intermediate and final fuels produced at the Kwinana Refinery (Laboratory Employees).

[14] At the time this Full Bench heard evidence in the matter, BP employed 138 Operators and 19 Laboratory Employees. 6 Most Operators work on a rotating shift roster, comprising of both day shifts and night shifts. Most Laboratory Employees work on a rotating shift roster comprising of both day shifts and afternoon shifts, although some Laboratory Employees are day workers only.

[15] On a planned basis the Kwinana Refinery is required to be shut down completely or partially to undertake maintenance and repair work. This complete or partial shutdown is known as a “Turnaround Event” or a “TAR Event” (TAR). Some processing units at the Kwinana Refinery are required to be shut down on a planned basis every six months to two years to undertake maintenance and repair work on the units or to recharge, top up or replace the catalysts. Further, the Kwinana Refinery or some processing units at the Kwinana Refinery are required to be shut down on an unplanned basis, usually to address an unexpected mechanical breakdown or an emergency that creates safety or environmental risks (a “swoop”).

The 2014 Agreement

[16] The 2014 Agreement came into effect on 13 November 2014 with a nominal expiry date of 30 November 2017.

[17] The 2014 Agreement provided an increase to the salaried wage rates for both Operators and Laboratory Employees. Whilst set out in different provisions of the 2014 Agreement 7, the wage increases for both Operators and Laboratory Employees were as follows:

•  4.2% from 28 March 2014;

•  3.8% from 27 March 2015;

•  3.8% from 25 March 2016; and

•  3.8% from 24 March 2017.

[18] There remain a large number of issues for this Full Bench to determine and give effect to in the Workplace Determination. For this reason, further detail of the 2014 Agreement will not be provided here, but rather, where it is necessary to our conclusions of the remaining issues to be determined below, we provide the relevant details of specific clauses within the 2014 Agreement.

Wage increases and growth since the expiry of the 2014 Agreement

[19] For employees of BP covered by the 2014, the last wage increase was 3.8% and it took effect on 24 March 2017. The 2014 Agreement reached its nominal expiry date on 30 November 2017 and there has been no further wage increase for employees covered by it since its expiry.

Bargaining history since the 2014 Agreement

[20] On 15 June 2017, BP initiated bargaining for a replacement for the 2014 Agreement. From 23 June 2017, BP has participated in thirty-five bargaining meetings to negotiate for a replacement for the 2014 Agreement. 8

Site inspection

[21] The Full Bench conducted an inspection of the site on 12 August 2019. The Full Bench was grateful for the opportunity to better appreciate the scale of the operations, the layout of the site and the working environment of Operators and Laboratory Employees.

Issues to be determined

[22] During the course of the matter before us, the parties have each filed a number of draft workplace determinations, setting out their respective positions in relation to the wide range of issues which were the subject of dispute during the bargaining period. Initially, the parties provided the Commission with a joint document identifying the agreed terms, and two separate documents (one prepared by BP and another prepared by the AWU) identifying the list of issues to be determined by the Commission.

[23] There were a large number of terms agreed between the parties, and this was reflected in each of their respective draft determinations. Section 267(2) of the Act requires those terms agreed between the parties as at the end of the negotiation period, in this matter being 16 February 2019, must be included in the Workplace Determination. Such terms will be included in the final Workplace Determination which we will make.

[24] Identification of the non-agreed terms is critical in the exercise of the Commission’s power under s 267 of the Act in respect of making a workplace determination.

[25] The following matters, described broadly by category, remain not agreed between the parties and must therefore be the subject of arbitration by the Commission:

•  Definitions

•  Nominal Expiry Date

•  Conditions of Employment

•  Components of annuals salary and fixed total salary

•  Regularity of salary payments

•  Salary increases

•  Company bonus scheme

•  Superannuation

•  Redundancy pay entitlements

•  Leave entitlements

•  Consultative committees

•  Starting and finishing times

•  Shift coverage

•  Availability Roster

•  Rosters

•  Make up hours

•  Working arrangements

•  Additional hours

•  Nine day fortnight

•  Time off in lieu

•  Contractors

•  Process testing and maintenance

•  Classification arrangements

•  Manning issues

•  Day Team

Evidence

[26] Evidence was given by the following persons:

For BP:

•  David Plant, Optimisation Manager, BP

•  Paul Mace, Operations Superintendent, BP

•  Marina Campbell, Maintenance and Engineering Manager, BP

•  Robert Bimrose, Employee and Industrial Relations Director, BP

•  Paul Alford, Business Improvement Lead, BP

•  Gregory Power, Principal Consultant, Drayton’s Workplace Consulting

For the AWU:

•  Robert Boyham, Operator Training Simulator Trainer, BP

•  Clint Brenchley, Deputy Shift Team Leader, BP

•  Jeremy Butson, RCU Control Technician (CT2A), BP

•  Greg Cary, Control Technician, BP

•  Chris Craig, Deputy Shift Team Leader (DTSL), BP

•  Jarrad Cullen, Control Technician, BP

•  Scott Dean, Quality Measurement Technician, BP

•  Martin Donnelly, Control Technician, BP

•  Tegan Duffy, Operations Technician, BP

•  Jeremey Durack, Control Technician, BP

•  Mark Ellis, Control Technician (Mogas CT3A), BP

•  Haile Gebrezgabher, Quality Measurement Technician, BP

•  Neil Glanz, Quality Measurement Technician, BP

•  Blair Leafe, Process Operator, BP

•  Ryszard Majewski, Control Technician, BP

•  Tammy McNabb, Quality Measurement Technician, BP

•  Brian Meharry, Day Technician North (OT4), BP

•  Brian Morris, formerly employed at BP

•  Felicity Mortley, Shift Coordinator (LT6), BP

•  Clayton Phillips, Control Technician, BP

•  Jenna Shemeld, Operations Control Technician, BP

•  Rene Sladky, Control Technician, BP

•  Dean Strauch, Control Technician, BP

•  Kylie Taylor, Quality Measurement Technician, BP

•  Katie Wagner, Control Technician, BP

•  Clive Hacking, Control Technician, BP

•  Denise Solly, Quality Measurement Technician, BP

•  Troy Irwin, Process Operator and employee representative on the AWU Negotiating Committee for the AWU Operations/Laboratory Agreement negotiations, BP

•  Rod Russell, Operations Control Technician, BP

Evidence

BP Witnesses

•  David Plant

[27] Mr David John Plant filed two witness statements and gave oral evidence on behalf of BP. At the time of filing his statements, Mr Plant was employed by BP as an Optimisation Manager. Among other things, Mr Plant deposed that:

•  In addition to expected poor future gasoline margins, the margins and operating profit of the Refinery are expected to be impacted by other developments. This includes new refineries and refinery expansions in the Asia Pacific and the Middle-East, Puma Energy Australia (Holdings) P/L building an import terminal in Kwinana, just south of the Refinery and recent legislative changes that require investment in the Refinery and will lead to lower margins for the Refinery. 9

•  The Puma Terminal poses a direct threat to the future competitiveness of BP through the erosion of BP’s location advantage. 10

•  Likely compliance requirements to new Commonwealth legislation may require BP to construct and commission an additional process unit and supporting infrastructure. 11

•  In relation to the cost of transporting refined products, BP has achieved a lower profit margin for its refined product transported to New South Wales and other Australian ports due to the need to compete with refined product imported using the Long Rage ships from the Asia Pacific and European refineries. 12

•  Unless BP improves its competitiveness, BP is less likely to have its capital expenditure approved by the BP Group. 13

•  The range of new refineries expected to commence operating in the Asia Pacific region and the Middle East which are expected to supply the Asia Pacific market will increase the supply of diesel and jet fuel in those markets and reduce the margins experienced at BP for diesel and jet fuel. 14

Paul Mace

[28] Mr Paul Mace filed two witness statements and gave oral evidence on behalf of BP. At the time of filing his statements, Mr Mace was employed by BP as an Operations Superintendent – Development. Amongst other things, Mr Mace deposed that:

•  BP does not get the benefit of the additional hours for overtime paid for in the annualised salary. This is because Operators take the view that the actual hours of work are 35 hours per week on average only and that anything above 35 hours per week is worked on a voluntary basis. Further, Operators take the view that shift coverage works on a voluntary basis and that BP cannot change rosters to require them to work additional hours to meet operational requirements, including during a TAR event. 15

•  A Shift Manager often needs to contact many non-rostered Operators on the availability list before cover is obtained. 16

•  Shift coverage is not evenly distributed amongst the Operators. 17

•  Arranging shift coverage can be a time-consuming exercise and at times several hours are required to organise shift coverage during a shift. 18

•  BP would like to have in place a system that ensures shift coverage is more evenly shared amongst Operators and gives Shift Managers confidence that shift coverage will be provided in the event of an unplanned absence that cannot be covered by the spare capacity on the shift. 19

•  In relation to the removal of the OT1 classification, BP is of the view that an Operator who has one area of expertise in relation to part of a manned position, but who is not trained or certified to operate one manned position is still a trainee and so should be classified as a trainee and should not be classified in a separate classification. 20

•  In relation to the removal of OT3 classification, an Operator who is trained and certified to hold one manned position but is training to hold two manned positions should still be classified as an OT2. BP holds the view that an OT3 has limited additional skills whilst training for the second manned position and cannot operate the second manned position. 21

•  BP is of the view that an Operator who commences training to become a Control Technician but has not completed the initial training should remain as an OT4 or an OT5 and should only be classified as a CT1 or a CT1A upon completing the initial training. 22

•  BP conducts risk reviews of processing units and processes at the refinery; risk reviews take varying amounts of time. BP wishes to have the right, if volunteers are not obtained, to direct an appropriately skilled Operator to participate in a longer risk review and to change from a shift roster to a day roster. 23

•  Regarding the proposal in the AWU’s Proposed Workplace Determination (AWUWD) for part-time employees to receive double time payment for hours worked in excess of their ordinary hours, there is no reason why a part-time Employee should be compensated differently to a full-time Employee for hours worked outside of their ordinary hours. 24

•  Regarding clause 8.6 of the AWUWD, BP seeks greater flexibility in rostering training for purposes other than ERG. 25

•  There is no greater risk associated with draining of the ISOM unit at night than conducting maintenance tasks on other units. 26

•  In relation to handover times, a typical handover for a control technician takes 10 minutes and a handover for a STL/DSTL is typically 15 minutes. 27

•  Last minute changes associated with a TAR Event mean that it may not be possible to provide 72 hours’ notice of cancellation of a night shift, it may only be practical to provide 24 hours’ notice of a cancellation of a night shift. 28

•  The assertion that an OT3 is capable of ‘running solo’ the CDU2 processing unit on the first day after they have attained their OT3 certification is denied. 29

•  The assertion that an OT1 can ‘run solo’ a manned position on the first day they have qualified as an OT1 is denied. 30

•  Operators who are classified as OT1 and OT3 are still undertaking training in relation to one or two manned positions and are not yet certified to operate one or two manned positions. 31

•  The assertion that for an Operator to perform a TAR Unit Lead involves a significant change to their duties is denied. 32

•  The assertion that the move to annualised salaries removed the need for employees to work overtime is denied. 33

•  The assertion that the 150 Additional Hours are uncompensated is denied, as these hours reflect the OT Payment that have been included as a component of the annualised salary since annualised salaries were introduced. 34

Marina Campbell

[29] Ms Marina Campbell filed two witness statements and gave oral evidence on behalf of BP. At the time of filing her first statement, Ms Campbell was employed by BP in the position of Health, Safety, Security, Environment and Quality Manager. At the time of filing her second statement, Ms Campbell was employed by BP as a Maintenance and Engineering Manager. Amongst other things, Ms Campbell deposed that:

•  Clause 7 of BP’s Proposed Workplace Determination (BPWD) will give BP the ability to access the full scope of Employees’ skill, competence and training. Operators have taken the view that they can only ‘volunteer’ to perform certain tasks. The proposed clause allows for better operational outcomes in relation to safety, quality and efficiency. The clause includes Employees undertaking from time to time duties that are lower or higher than in the Employees’ specific classification level or performing tasks incidental to the Employees’ classification level. 35

•  In regard to Shift Roster 2 proposed in the BPWD, this roster benefits BP in relation to the availability of day resources to assist with maintenance on the weekends through the Refinery Technicians performing the day work on weekends. In respect of Refinery Technicians on this roster, they work fewer night shifts which contributes to lessening the fatigue impact from working nights. 36

•  In relation to clause 8.6(d) of the BPWD regarding the start and finishing times for Operators, Ms Campbell deposed that, notwithstanding that the start and finishing times are currently 7.00am and 7.00pm, the majority of Operators commence work and finish work earlier than those times. Gate entry electronic data held by BP recorded the entry times and departure times at the Refinery of shift Operators for the period 1 January 2018 to 20 February 2019. A report from this period indicates that on average 86% of Operators entered the Refinery to commence day shift by 6.05am and that 93% of night shift Operators arrived at the Refinery by 6:10pm. Changing the start and finishing times will result in efficiency and productivity improvements, including the ability to stagger the start times for maintenance crews at the start of the day. The peak work load for issuing permits could be distributed over a longer period, reducing delays. 37 A start time for 6.00am for day shift Operators would therefore enable permits to be issued to maintenance crews from 7.00am which in turn would increase productivity of maintenance workers.38

•  Data collected by BP for delays to the start of maintenance work showed that the average time from the start of the maintenance shift to the issuing of a permit was 49 minutes, and maintenance personal may have no alternative work to perform until the permit is issued. 39

•  Clause 8.6(f)(i) of the BPWD removes the limitations imposed on BP under the 2014 Agreement with respect to rostering training for Operators and the limitations on the use that can be made of make-up hours. 40 Clause 8.6(f)(ii) also provides that the make-up hours for Laboratory Employees will be rostered for training and other business needs.41

•  BP justifies the need to require Employees to work a Day Roster based on a number of factors including safety, the enablement of business efficiency, access to Operations knowledge and input into key business decisions and process costs. 42

•  In or around 2015 a decision was made by BP globally to abolish 9-day fortnight arrangements across all BP operations. Clause 8.7(b) of the AWU Workplace Determination provides Laboratory Employees with the right to elect to work a 9-day fortnight; BP wishes to have a uniform application of policy to all employees without making exception for Laboratory Employees. 43

•  In relation to clause 8.8 of the BPWD, BP wishes to provide clarity on how additional hours are allocated and used. 44

•  In relation to clauses 9 and 26 of the BPWD regarding shift coverage, these clauses are inserted due to the imperative to safely operate the Refinery processes at all times. 45 Shift Managers have reported that the process of attempting to fill an unforeseen absence of an employee has left them feeling physically ill. This is due to the stress of having to confront the decision of shutting down several process units.46 The BPWD seeks to reduce the risk of a situation where units need to be shut down because of an inability to cover all required positions.47 The BPWD seeks to reduce this risk through Operators confirming their availability to be called in to provide coverage via an ‘availability roster’ one month in advance.48

•  Shift coverage provisions in the AWUWD fail to address the risks relating to being unable to cover all required positions, in part due to the prescriptiveness and time-consuming nature of the proposed clauses. 49

•  The BPWD provisions regarding TAR arrangements seek to ensure flexibility in working arrangements to ensure a TAR event is carried out in a cost effective, efficient and appropriately manned manner. 50 Having the ability to require Operators during the Execution Phase, and a short period either side of the Execution Phase, to work a different shift roster pattern contributes to a safer Execution Phase as the workload is more equally spread.51 Having the certainty about the availability of the number of Operators to perform their respective roles during a TAR Event by having the ability to appoint and require the performance of tasks contributes to better safety.52

•  Under the current arrangements emanating from the 2014 Agreement, Operators can withdraw their volunteer status during the Preparation Phase for the TAR Event. The timing of such a withdrawal poses risks if late in the process another Operator has to catch up on the preparations done thus far. 53

•  For the 2017 TAR, in order to get volunteers, and after failed attempts, BP only achieved sufficient availability of Laboratory Employees to do work by offering additional TOIL. This is despite the fact that the annualised wages of Laboratory Employees include compensation for working additional hours. 54

•  If BP were able to direct Operators to work the TAR roster as required, the potential for employee fatigue and associated risks would be reduced as the workload would be distributed amongst Operators more evenly. 55

•  BP’s costs for 430 employees are approximately 42% of its total operational costs and the 162 Operators and Laboratory Employees account for 40% of those labour costs and represent the largest labour cost of operating the Refinery. 56

•  The ability for BP to direct employees to work on a public holiday, which BP proposes in clause 15.10 of the BPWD, is due to the nature of Refinery being a major hazard facility. 57

• BP wants to have the ability to consider the means of achieving greater consistency and efficiency by re-designing the Permit to Work system so that dedicated Operators act as dedicated permit control officers responsible for each of the areas of the Refinery. 58

•  BP seeks to have the flexibility to implement changes to manning levels as technology allow and does not wish to be restrained from doing so. 59

•  She is concerned that Employees will continue to reference clause 32 of the AWUWD as setting the limit on the duties and responsibilities of Operators and that any request or direction by BP to perform duties not listed will be resisted. 60

•  Clause 30(b) of the AWUWD regarding reductions in staffing numbers is restrictive and the prospect of obtaining agreement for changing staffing numbers is ‘virtually nil’. 61

•  The assertion that the three shift rosters proposed by BP will increase the fatigue experienced by Operators is denied. 62

•  Tasks formerly done by Operators on shift are now routinely done by staff working days. 63

•  In respect of fatigue concerns for Laboratory Technicians working past midnight, data demonstrates that out of 409 individual shifts over a six-month period in 2019, there were 13 occasions when an individual worked past midnight. 64

•  Robert Bimrose

[30] Mr Robert Bimrose filed two witness statements and gave oral evidence 65 in support of the BPWD. At the time of filing, Mr Plant was employed by BP as Employee & Industrial Relations Director. Among other things, Mr Bimrose deposed that:

•  The BP Group has approximately 1800 employees in Australia who are paid an annualised salary (including employees of BP). With the exception of approximately 260 employees, the remaining 1500 (approximate) employees are paid on a monthly basis, half in advance and half in arrears. Of the 260 employees, 200 employees working at the Kwinana Refinery are paid on a fortnightly basis and are covered by the 2014 Agreement and the BP (Kwinana Refinery) Maintech 2015 – Maintenance Technicians Agreement. The remaining 60 employees work at lubricant processing plants are paid fortnightly and are covered by another single enterprise agreement. 66

•  BP Group wants to harmonise its payroll practices across the entities where possible, including having a monthly payment cycle for employees who are paid annualised salaries. The BP Group wants to reduce its operating costs associated with payroll activities. A monthly payment cycle will reduce the payroll transactions from 26 to 12 times per annum, in turn reducing the resources required for payroll validation checks and the risk of mistakes. 67

•  Clause 11(c) of the AWUWD, which provides for Employees to be paid fortnightly, would be inconsistent with the payroll practices of the BP Group. 68

•  Clause 11(f) of the AWUWD, regarding effecting payment by cheque in the event of a failure in the banking system, is no longer necessary as such a clause could result in further delays to the payment of salaries. Continuity plans currently in existence provide for payments to be processed within a matter of hours where a failure in the banking system occurs. 69

•  BP is concerned that not having a clause in the Workplace Determination requiring employees to perform duties within their skill, competence and training when directed may give rise to disputes concerning the requirement of the employees to follow the lawful and reasonable directions of BP. 70

•  During a bargaining meeting on 6 September 2018, an AWU delegate stated that participation in TAR Events was voluntary. 71

•  The absence of the Code of Conduct clauses 7(b) and 7(c)(ix) from the Workplace Determination may give rise to disputes in relation to compliance with the Code of Conduct. 72

•  Clause 8.1 of the AWUWD would limit overtime hours to ‘production requirements’, BP should not be precluded from directing employees from working overtime during turnarounds, swoops and other projects. 73

•  Changes in BP’s policies no longer permitting compressed working weeks (including a 9 day fortnight) were due to concerns relating to inconsistent work hours impacting productivity. 74

•  The BPWD does not include a provision which permits employees to elect to work a 9 day fortnight. BP wants to ensure that its employees are treated in a consistent manner and that its policies are consistent with policies applied by related entities within the BP Group. 75

•  Clauses 29 and 31 of the BPWD clarify that there are a number of components that make up the Total Fixed Salary paid to Employees, and this is to avoid future disputes regarding the components of the Total Fixed Salary. 76

•  BP wants to incorporate the leave loading into the Total Fixed Salary for Laboratory Employees who are day workers to ensure consistency across the Employees covered by the agreement. 77

•  The clauses concerning retrenchment in the AWUWD are excessive and may create operational difficulties for BP. 78

•  BP no longer wishes to continue with the bonus pay arrangements provided under the 2014 Agreement because they do not operate as a discretionary reward, they have no regard to individual performance, they do not provide BP with a capacity to review or amend the plan and BP wishes to have a single consistent approach to determining discretionary bonuses. 79

•  BP opposes clause 11.3(d) proposed in the AWUWD regarding superannuation contributions as it adopts a practice that is more generous that BP’s legal obligations. 80

•  BP’s provision of an additional day of public holiday for Day Workers in lieu of Easter Tuesday known as ‘My Day’ would be better addressed in company policy rather than in a workplace determination. 81

•  Regarding the functions of consultative committees as proposed in the AWUWD, the use of contract labour is a matter for the sole decision of BP and should not be subject to the review or recommendation of the committee. 82

•  During bargaining, BP stated it was concerned at the wage growth of Operators and Laboratory Employees from 2007 to 2016, with the wage growth being 71 per cent in the 10 year period. 83

•  The Annual Cash Bonus (ACB) Plan, which includes a measure on individual performance, applies to other employees of the BP Group. Mr Bimrose deposed that he is not aware of there being any negative impact on safety and workplace culture by reason of the application of the ACB Plan to other employees in the BP Group. Further, Mr Bimrose deposed that it has not been suggested to him that the focus on individual performance in the ACB Plan has a negative impact, or has a potential negative impact, on safety and workplace culture. 84

•  Contrary to the suggestion in Mr Irwin’s Statement that Operators at the Refinery were not the highest paid in Operators in Australia, Mr Bimrose’s understanding is that the Operators at BP are the highest paid in Australia in respect of ordinary hours of work. 85

•  Contrary to the assertion in Mr Irwin’s statement that BP only entitles Mr Irwin to take 6.6 shifts off per year for personal/carer’s leave, Mr Bimrose denies this and deposed that BP permits Mr Irwin to take 10 days off for personal carer’s leave per year. 86

•  In 2018, the margin generated by BP for supply of gasoline decreased significantly, and BP realised that it could not enter a replacement agreement that rolled over the 2014 Agreement. 87

•  In reference to the Solly Statement, he is not aware of a formal dispute over the 90% pension factor applying to some employees. 88

•  Before BP would direct an Operator to work as a day worker, it would consult with them to learn of their personal circumstances. 89

•  Regarding the suggestion that the 2014 Agreement is silent on the ability of BP to direct a dayworker to take accrued annual leave, Mr Bimrose deposed that clauses 51.3, 51.4, and 72.6 concern this issue. 90

Paul Alford

[31] Mr Paul Alford filed two witness statements. At the time of filing, Mr Alford was employed by BP in the position of Business Improvement Lead. Among other things, Mr Alford deposed that:

•  The operation of many provisions in the 2014 Agreement prevent BP from having the requisite level of certainty, flexibility and consistency required to carry out a cost-effective, efficient and appropriately manned TAR Event. 91

•  The 2014 Agreement is interpreted by Operators in a way that imposes a number of constraints on the operations of the Refinery especially for TAR Events. Operators take the view that they may voluntarily enter project teams but are not obliged to work in project teams, that they are not required to work more than 35 hours per week (and only in accordance with the current agreed rosters and a TAR roster) and that they are only required to perform the agreed duties, and work on a TAR Event is not part of the agreed duties. 92

•  To carry out a cost effective TAR event, BP wants to be a position where it can, amongst other things, arrange for TAR Unit Leads to be rostered on day shifts for the duration of the Preparation Phase, select and appoint Operators to perform other defined TAR roles and work with the TAR Unit Leads at times required by BP during the Preparation Phase. 93

•  The combined operation of not being able to change rosters, not being able to require Operators to work overtime and rigid job descriptions prevents BP from appointing TAR Unit Leads. Instead, BP is reliant on Operators volunteering to be a TAR Unit Lead and to change their roster accordingly. 94

•  Relying on volunteers to perform TAR Unit Leads results in BP not having the ability to select the most suitable Operator to perform the required role. 95 This is also an issue with Operators performing other defined TAR roles.96 The fewer the Operators who volunteer for other defined TAR roles, the greater the duration of the TAR Execution period.97 Mr Alford estimates that the daily cost during a shutdown was around $2.5 to $3 million during the 2017 TAR.98

•  Under the current arrangements, BP is unable to ensure that the workload during the TAR Execution Period is distributed across the Operators in a more equitable manner, as volunteers working a TAR role work extended hours. 99

•  In the lead up to the TAR Execution Period for the 2017 TAR, a number of Operators who had volunteered to work the TAR Roster subsequently withdrew; this was disruptive to the Preparation Phase and placed a significant burden on management in trying to accommodate the changes in manning. 100

•  The limited number of suitable volunteers during the 2017 TAR was a source of frustration from the TAR Unit Leads and they felt like safety was being compromised as a result. 101

•  Having certainty of suitable Operator availability would shorten a TAR Event. 102

•  If BP could execute TAR Events efficiently, the total duration of a major TAR Event could be reduced by 3 to 5 days, resulting in a total cost saving of $7.5 million to $15 million per major TAR Event. 103

•  Clause 10 of the BPWD contains an appropriate regime for BP to conduct TAR Events efficiently, safely and flexibility by providing benefits and protection for Employees. 104

•  Clause 10.2 in the AWUWD regarding seeking and obtaining the recommendations of the Consultative Committee in relation to the selection of Employees to fill TAR roles is likely to create a delay in TAR events. Additionally, the need for the roster to be worked during the TAR Execution Phase to be agreed in writing may become subject to the dispute resolution procedure if there is a lack of agreement. 105

•  Maintenance tasks performed by BP maintenance employees or maintenance contractors must be authorised by an Operator; this is provided through a ‘Permit to Work’. 106 After a permit is issued, they can commence their work. BP seeks to avoid maintenance employees and maintenance contractors from being delayed in the commencement of their work.107 A study revealed that the average lag time between a maintenance employee starting on site and being authorised under a permit to work to commence work was 1 hour and 4 minutes and the cost of the lag was estimated at $1.0 million per year.108 BP wishes to avoid the bottleneck associated with the issue of Permits to Work, and accordingly wishes for Operators to commence their day shifts at 6am and to complete various tasks before maintenance employees and contractors start at site at 7am.109

•  BP does not wish to be restricted from implementing digital automation opportunities, which deliver efficiencies. BP does not wish to be restricted on the basis that the tasks required of Operators are not set out in role descriptions for the various types of Operators. 110

•  He has never experienced an issue, including a banking ‘failure’, which has affected the payment of his salary and he has not heard of other staff experiencing such an issue in the 13 years he has worked at the Refinery. 111

•  In relation to Mr Brenchley’s Statement:

•  At no time did Mr Brenchley inform Mr Alford that he did not have the training or briefing to be the RCU Unit Lead or to be involved in the preparations for the 2017 TAR. 112

•  At no time was Mr Alford informed by Mr Brenchley that he regarded the performance of a TAR Unit Lead as involving a major change in the role of an Operator or that he did not feel comfortable in performing the role of RCU TAR Unit Lead. 113

•  Mr Alford agrees that during the TAR Execution Period a TAR Unit Lead at times has more responsibility than an Operator working on a unit during normal operations. In Mr Alford’s view, this greater responsibility during a TAR Event supports BP having the ability to select and appoint TAR Unit Leads and not relying simply on volunteers to fill the role of TAR Unit Leads. 114

•  In relation to Mr Butson’s Statement:

•  At no time did Mr Butson inform Mr Alford that he did not have training or the skills and experience to perform the role of TAR Unit Lead for the 2017 TAR. 115

•  In relation to Mr Irwin’s Statement:

•  Mr Alford denies that BP is asking TAR Unit Leads to work a six day on, one day off 12 hour shift roster throughout the entire TAR Execution Period, BP is only seeking that TAR Unit Leads work on a six day on, one day off 12 hour shift roster during the Shut-down Phase and Start-up Phase of the TAR Execution Period and the initial week of the Mechanical Phase of the TAR Execution Period. 116

•  Mr Alford denies that a six day on, one day off 12 hour shift is unsafe. 117

•  Mr Alford denies that none of the Operators filling the role of TAR Unit Leads in the 2017 TAR received training. 118

•  In relation to Ms Solly’s Statement:

•  Mr Alford denies that the provision of 72 hours’ notice of cancellation is practical. During the Start-up and Shut-down Phases of the TAR Execution Period, BP often experiences delays and issues. 119

•  BP opposed the AWU proposal that BP publish TAR rosters at the time an expression of interest is undertaken. If TAR rosters are included in the Workplace Determination, it will not be necessary to publish the TAR rosters as part of the EOI process. Mr Alford is concerned that a requirement to publish a TAR roster may lead to disputes if BP takes the view that it is necessary to change to another TAR roster subsequent to the EOI process. 120

Gregory Power

[32] Mr Gregory Power filed a single witness statement and gave oral evidence. At the time of filing, Mr Power was employed as the Principal Consultant of Drayton’s Workplace Consulting. Among other things, Mr Power deposed that BP pays the Employees (operators and laboratory employees) the highest relative annualised salary for employees working in oil refining in Australia. 121

AWU Witnesses

Robert Boyham

[33] Mr Robert Boyham filed a single witness statement in support of the AWUWD. At the time of filing, Mr Boyham was employed by BP as an Operator Training Simulator Trainer. Amongst other things, Mr Boyham deposed that:

•  An OT3 can ‘run solo’ in a second manned position providing that he/she can swap with a qualified person during an emergency scenario. 122

•  An OT1 classification should be retained because the likelihood of training a spare operator would likely only cover 50% of training time. An OT1 (and an OT3 and CT1) can be utilised to cover a manned position that they are not yet assessed as fully competent on provision that a competent person is available to take over in an emergency. This is referred to as ‘going solo’ and although not detailed in the structure, it has become practice. 123

•  The CT1 is a 2-year training position necessary to lead to competency as a CT2. The CT1 will also reach a phase of their training where although they have not yet achieved the level considered to be assessed, they can ‘run solo’ in the role as long as a competent person is in a position available to swap in an emergency. The CT1 will perform all of the duties of a CT2 during this period, which may last for up to 6 months. 124

•  The OT1, OT3 and CT1 classifications grades encourage the trainee to develop a broad base of operating skills and promote learning. Although the OT3 and CT1 spend some time performing a role above their pay structure, the categories have always been fair and encourage training and efficiencies benefitting both the company and the operators involved. 125

•  Overtime coverage only became an issue again when consecutive EBAs resulted in further de-manning, where not working overtime to cover absences became impossible due to a reduction in the numbers in the remaining workforce. The solution was ‘Flexi-time’. Mr Boyham disagrees with the characterisation of the 1992 EBA as including compensation for 154 hours overtime per annum. Over the years, the nature of the annualised salary and staff structure changed so that the original calculation representing the compromise was no longer relevant. 126

•  There will be fatigue implications on employees if BP increases the number of sequential night shifts in its shift roster. 127

Clint Brenchley

[34] Mr Clint Brenchley filed a single witness statement in support of the AWUWD. At the time of filing, Mr Brenchley was employed by BP as a Deputy Shift Team Leader. Among other things, Mr Brenchley deposed that:

•  He volunteered for a role to support the TAR in 2017 and was surprised when told that he would have to lead the TAR event on the RCU because at that stage in his career he had no experience with leading a TAR. 128

•  The only training he received during the TAR17 was a single session conducted by Mark Roberts about creating permits. 129

•  During the TAR in 2017, delays arose due to the inefficiency of the maintenance crew and unfinished maintenance work that should have been completed before the commencement of shutting down. 130

•  A TAR lead is required to have a much higher level of understanding of the process unit and has the responsibility to create and approve permits, which usually lies with an Area Authority. 131

Jeremy Butson

[35] Mr Jeremy Butson filed a single witness statement in support of the AWUWD. At time of filing, Mr Butson was employed by BP as an RCU Control Technician (CT2A). Among other things, Mr Butson deposed that:

•  The execution of TAR17 on the SUR units went well, with only minor delays to the plan that were outside of the team’s control, such as the start and finish times of other units. 132

•  There are many skills a TAR Ops Lead requires that are outside their normal role such as a high level of experience on the unit, a higher level of leadership, a greater level of understanding of more complex or novel maintenance processes and a greater level of responsibility. 133

•  Gregg Cary

[36] Mr Gregg Cary filed a single witness statement in support of the AWUWD. At the time of filing, Mr Cary was employed by BP as a Control Technician. Amongst other things, Mr Cary deposed that:

•  There were a number of reasons for the introduction of an annual salary in the 1992 Enterprise Bargaining Agreement with BP, including a remuneration package that would incentivise the workforce to reduce and ultimately eliminate inefficient and restrictive work practices that had become institutionalised over decades. 134

Christopher Craig

[37] Mr Christopher Craig filed a single witness statement in support of the AWUWD. At the time of filing, Mr Craig was employed by BP as a Deputy Shift Team Leader (DTSL). Amongst other things, Mr Craig deposed that:

•  Changes to the shift roster, especially with short term notice, will have a big personal impact on Mr Craig. The current roster arrangement being fixed and predictable provides the maximum stability for Mr Craig’s children. 135

•  Working in the 2017 TAR had impacts on the custody arrangement Mr Craig had with his children. 136

•  He understood the expectation that the DSTL role came with an expectation of being more flexible in moving onto different shifts permanently to provide STL cover. 137

•  He has covered the STL role many times more than would be expected just for leave coverage. 138

•  Between Jan 2014 and July 2017, there was no STL on his shift meaning that he did the majority of coverage in this period. This created difficulties in taking annual leave. 139

•  In his time at BP, he has never heard of the requirement to provide 150 additional hours of labour with no TOIL or remuneration. 140

Jarrad Cullen

[38] Mr Jarrad Cullen filed a single witness statement in support of the AWUWD. At the time of filing, Mr Cullen was employed by BP as a Control Technician. Amongst other things, Mr Cullen deposed that:

•  On 2 October 2018, the D-shift Shift Manager asked for volunteers to write training manuals for the L&D department (operations training department). 141

•  He requested that he be given appropriate training before working in the RCU L&D role, but he was told by Garry Budd that BP would not provide the training at that time. 142

•  On 30 October 2018 he wrote an e-mail to Renee Sandy and Garry Budd to inform that that he was not prepared to take on the L&D role as he was not appropriately trained. 143

Scott Dean

[39] Mr Scott Dean filed a single witness statement in support of the AWUWD. At the time of filing, Mr Dean was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Dean deposed that:

•  At no point in his job interview or to the date of filing had it been mentioned to him that he is required to work extra hours for free outside of his normal 35 hours a week as outlined in his job interview. 144

•  Having a 9 day fortnight allows him to maintain a work / life balance with his children; if he had known that the 9 day fortnight was going to be taken away, he would not have moved his family from Brisbane to Perth to work in this role. 145

Martin Donnelly

[40] Mr Martin Donnelly filed a single witness statement in support of the AWUWD. At the time of filing, Mr Donnelly was employed by BP as a Control Technician. Amongst other things, Mr Donnelly deposed that:

•  Having a predictable roster allows him to manage his family commitments. Disruptions to child custody arrangements have in the past caused his children stress and anxiety. 146

•  Due to personal commitments he has had to refuse requests to work overtime because he has been unable to make care arrangements. 147

•  If he is unable to refuse requests to work overtime, there will be occasions where he will not be able to comply due to his responsibilities to his children. By failing to comply, he asserts that he will face the prospect of disciplinary action. If he agrees to work overtime, he shall be in breach of court orders regarding childcare. 148

Tegan Duffy

[41] Ms Tegan Duffy filed a single witness statement in support of the AWUWD. At the time of filing, Ms Duffy was employed by BP as an Operations Technician. Amongst other things, Ms Duffy deposed that:

•  Form Mr Duffy’s interview to officially being offered the job, ‘there was no mention of additional hours’. She was advised that any additional hours worked would be compensated with TOIL. 149

•  If her shift roster were to change at short notice, it would be impossible to make school and Day care arrangements for her children. 150

•  Working a different shift roster with additional hours may compromise her ability to enable her children to engage in sporting activities. 151

Jeremey Durack

[42] Mr Jeremey Durack filed a single witness statement in support of the AWUWD. At the time of filing, Mr Durack was employed by BP as a Control Technician. Amongst other things, Mr Durack deposed that:

•  Upon commencing employment with BP in 2011 he noted that the EBA stated that extra hours of work were required to maintain the 35 hour week. These were in the form of Make up Days. Furthermore, that his employment contract mentioned additional hours and that these hours were an expectation of employment and were to be reasonable. These additional hours were referenced as overtime and would be compensated with time off in lieu. 152

•  It was explained to him that overtime would be used to cover for an absence in a manned position and that it was to be shared amongst the shift on an equal basis. 153

•  Since starting his position in November 2011, he has not been made aware of any position that has gone unmanned. 154

Mark Ellis

[43] Mr Mark Ellis filed a single witness statement in support of the AWUWD. At the time of filing, Mr Ellis was employed by BP as a Control Technician (Mogas CT3A). Amongst other things, Mr Ellis deposed that:

•  Sometime around the end of November 2016 he had a discussion with Paul Mace where it was agreed that he would continue to work on the simulator for an average of 35 hours per week with the freedom to choose which days he worked and the number of hours each day, provided he adequately covered the training requirements of all shifts equally. 155

•  The role of CR3/Isom simulator trainer and Mogas L&D coordinator require two very different skillsets and the amount of work required by each role fills a 35-hour working week by itself. 156

Haile Gebrezgabher

[44] Mr Haile Gebrezgabher filed a single witness statement in support of the AWUWD. At the time of filing, Mr Gebrezgabher was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Gebrezgabher deposed that:

•  He started working for the Refinery in June 2015 as a day worker. However, due to BP’s request to provide shift cover, he has been flexible to accommodate such requests. 157

•  He has accumulated over 30 hours of credit time in lieu by being flexible and volunteering to cover during TAR2017. 158

Neil Glanz

[45] Mr Neil Glanz filed a single witness statement in support of the AWUWD. At the time of filing, Mr Glanz was employed by BP as a Quality Measurement Technician. Amongst other things, Mr Glanz deposed that:

•  As a day worker, when covering a shift position, he was paid at the shift workers’ rate of pay for his grading. 159

•  At the beginning of March 2017, all day workers were asked by the Laboratory Supervisor if they would like to opt in or opt out of the shift coverage pool and those ‘who said no were simply not asked when an opportunity came up.’ 160

•  In 2016 he was asked if he would like to volunteer to assist the refinery for the 2017 TAR. 161

•  From 27 July 2016 until the first day of TAR 2017 his roster did not change, he continued to work his day shift. He was required to attend a weekly briefer meetings which would run for more than half an hour. These meetings were scheduled during normal working hours. 162

•  He had a number of duties for the 2017 TAR which were outside of his normal duties as a Quality Measurement Technician. 163

•  During the TAR his roster was 13 days on and 1 day off, working 12-hour shifts. He found that his fatigue levels increased dramatically working this roster. He felt that he was not adequately recovered after this time, and he applied for and was approved time off using TOIL hours. 164

Blair Leafe

[46] Mr Blair Leafe filed a single witness statement in support of the AWUWD. At the time of filing, Mr Leafe was employed by BP as a Process Operator. Amongst other things, Mr Leafe deposed that:

•  He was involved in the J1088 project in 2018. 165

•  To his knowledge, he did not hear feedback from the company that the team did not get enough support. The commissioning project generated a great deal of positive feedback from his STL’s, PE’s and Shift Managers. 166

•  To his recollection, there was never an email from the company soliciting for extra support and he did not hear anyone within the operations team saying that they could not help if help was required. 167

Ryszard Majewski

[47] Mr Ryszard Majewski filed a single witness statement in support of the AWUWD. At the time of filing, Mr Majewski was employed by BP as a Control Technician. Amongst other things, Mr Majewski deposed that:

•  In mid-2018 there was a request made for an operator to fill a role in the L&D department. He informed his Shift Manager of his interest in filing the role. 168

•  In March 2019 he was told by Barry Shackles that he would be moving to the L&D department to replace Chris Settle. There has not been a time frame for the move put in place, and this is the last he has heard anything about the move. 169

Tammy McNabb

[48] Ms Tammy McNabb filed a single witness statement in support of the AWUWD. At the time of filing, Ms McNabb was employed by BP as a Quality Measurement Technician. Amongst other things, Ms McNabb deposed that:

•  She was never informed, and nor was it mentioned in her contract or the 2010 and 2014 Agreements, of any requirement to perform an additional 150 uncompensated hours per year. 170

•  She has been required to perform 70 hours of make-up day (MUD) time each year since taking her current Award shift position to make up the 35 hour week. Any additional time accrued above her MUD time has been credited by BP as TOIL, where she receives one hour of TOIL for each hour of additional time worked. 171

•  The only exception to the application of TOIL was when BP made a request for shift cover during the 2017 TAR. Night shifts are not normally worked in the laboratory, the operating hours are from 7am to 11pm. One hour of TOIL would accrue for each hour worked between 11pm and 7am when a rostered shift worked moved from afternoon shift to full night shift, or a day worker moved from their regular day roster. Two hours of TOIL would accrue per hour between 11pm and 7am when a worker came in whilst they were rostered off a shift. 172

Brian Meharry

[49] Mr Brian Meharry filed a single witness statement in support of the AWUWD. At the time of filing, Mr Meharry was employed by BP as a Day Technician North (OT4). Amongst other things, Mr Meharry detailed his involvement in the 2017 TAR, including his role in issuing permits for work. 173

Brian Morris

•  Mr Brian Morris filed one witness statement and gave oral evidence in support of the AWUWD. 174 Mr Morris had various roles within BP and the AWU including as a staff member of the AWU Operations Negotiations Committee. Among other things, Mr Morris deposed that:

•  Employees at BP historically worked an 8-hour day, afternoon and night shift with alternating long and short breaks after each round of shifts. 175

•  As Operation Supervisor and Shift Manager (1994 – 2011), he came to appreciate the factors that led to the introduction of TOIL, including added workload requirements. The result of various changes led to some award shift people working up to a year or more in planning and preparation roles and an increased coverage into projects or covering staff on leave. 176

•  An example of peer group pressure occurred in 1995 when an operator who covered a day shift phoned another operator on his shift who was ‘on top of the rolling list’ and had not responded to Mr Morris’ phone call. The operator said to the other operator ‘Why am I here again covering your overtime? Get your fucking arse in here so I can go home to my family’. The other operator subsequently came in to cover for the remainder of the shift. 177

Felicity Mortley

[50] Ms Felicity Mortley filed a single witness statement in support of the AWUWD. At the time of filing, Ms Mortley was employed by BP as a Shift Coordinator (LT6). Amongst other things, Ms Mortley deposed that:

•  Upon obtaining her position in the laboratory, she was made aware that she was expected to make up 70 hours over the year. She was informed that under her contract, any hours worked above the 70 make up hours would be compensated for in TOIL. 178

•  It was not until the most recent EA negotiation period that she heard of the bank of 150 hours that she was expected to provide to the company. This concept was not mentioned to her during her job interview process or at any time during her employment at BP. 179

•  If her roster were to change with short notice, this would have financial and familial impacts. 180

•  If roster hours were to change to 12pm-12am, this would reduce her hours of sleep and create a potential safety hazard. 181

Clayton Phillips

[51] Mr Clayton Phillips filed a single witness statement in support of the AWUWD. At the time of filing, Mr Phillips was employed by BP as a Control Technician. Amongst other things, Mr Phillips deposed that:

•  After a meeting took place on 26 June 2018, representatives of the Offsites Area Work Group (OAWG) received an email wherein BP mentioned that additional RAMAN sampling was required. 182

•  To his belief all shifts responded with a similar response which was that due to the meeting not reaching quorum the meeting was invalid. 183

•  C Shift did not deny the request to take samples; but they did have unanswered questions that required a meeting to discuss. 184

•  After an unofficial meeting with the Area Superintendent, a mutual understanding was reached; operators proceeded to take samples and BP agreed to make recommended changes. 185

•  Throughout this process Operators did not deny the request to take samples. It was deposed that a breakdown in communications was a big factor in the delay. 186

Jenna Shemeld

[52] Ms Jenna Shemeld filed a single witness statement in support of the AWUWD. At the time of filing, Ms Shemeld was employed by BP as an Operations Control Technician. Amongst other things, Ms Shemeld deposed that:

•  At no time during the recruitment process in relation to her role as BP was she informed by BP that she owed the company a bank of hours. At the time of signing her contract, the agreement recognised a deficit of 40 hours per year ‘caused by the 5-panel roster’ which could be scheduled as compulsory training make up days. The agreement stated words to the effect that any hours worked in excess of the 35-hour week would accrue TOIL. 187

•  She does not recall receiving any formal explanation of overtime management during the recruitment process. It was explained to her that she was expected to perform a reasonable amount of overtime to ensure all operating positions are feasibly manned. 188

•  In relation to shift coverage, she is not paid to be on call during any time of her break, and her understanding is that she has no obligation to remain in a ‘ready state for work’. Accordingly, it is to her understanding that she is not under any obligation to agree to overtime if she is unavailable. 189

•  Overtime response forms part of the Operations Branch Specific Measures for the BP Award Variable Pay Plan; wherein performance against targets is assessed to determine what bonus payment is received. 190

•  If she was directed to work additional unscheduled hours, or her regular roster was able to be changed by the company with minimal notice, she would not be able to adequately breastfeed her daughter and make suitable childcare arrangements. 191

Rene Sladky

[53] Mr Rene Sladky filed a single witness statement in support of the AWUWD. At the time of filing, Mr Sladky was employed by BP as a Control Technician. Amongst other things, Mr Sladky deposed that:

•  He has done several TAR/shutdown events since starting with BP. 192

•  All of his knowledge in TAR/shutdown execution had been learnt during the events, he received no formal training. The only training he received for TAR execution was ‘a few quick power point presentations’ on how permitting has changed from the normal system used to a Brownfields system. 193

•  One nightshift during the last Hydy TAR he was told to leave a fellow Operator to man the Shift Team Leader position. This made him feel uncomfortable as shutting down or starting up a unit is a vulnerable time where an incident could occur. He decided to spend his night ‘mostly on the Hydys and going backwards and forwards when there was any need for Shift Team Leader duties’. 194

Dean Strauch

[54] Mr Dean Strauch filed a single witness statement in support of the AWUWD. At the time of filing, Mr Strauch was employed by BP as a Control Technician. Amongst other things, Mr Staunch deposed that he did not feel that 2017 TAR was undermanned but rather the systems in place with control of work were difficult to work with given a TAR timeframe. 195

Kylie Taylor

[55] Ms Kylie Taylor filed a single witness statement in support of the AWUWD. At the time of filing, Ms Taylor was employed by BP as a Quality Measurement Technician. Amongst other things, Ms Taylor deposed that:

•  She would incur additional childcare related costs if BP were to implement changes to rosters and require employees to work extra hours at short notice. 196

•  The current expectation and system still in use now is that no extra hours above the 70 hours of MUD time is required. 197

Katie Wagner

[56] Ms Katie Wagner filed a single witness statement in support of the AWUWD. At the time of filing, Ms Wagner was employed by BP as a Control Technician. Amongst other things, Ms Wagner deposed that:

•  A one week notice to temporarily change her roster would be detrimental to her child. 198

•  If the company were to direct a permanent roster change at a months’ notice her ‘home life would be thrown into disarray’. 199

•  Moving to a day roster at a significantly reduced wage would impact her ability to afford therapy services for her son. 200

Clive Hacking

[57] Mr Clive Hacking filed a single witness statement in support of the AWUWD. At the time of filing, Mr Hacking was employed by BP as a Control Technician. Amongst other things, Mr Hacking deposed that:

•  BP does not identify which roster pattern they will implement subject to clause 17 of the Workplace Determination. 201

•  BP employed Integrated Safety Support to do a fatigue hours of work analysis of current rosters. The ISS Report showed that the current shift roster worked by the employees covered by the 2014 Agreement has the least fatigue impact on employees. 202

•  If BP has the ability to change shift rosters and shift patterns this may have a profound effect on the fatigue levels and well-being of shift workers and their families. 203

•  Parts of the isomerisation unit are in very poor condition and this requires additional care when preparing for and doing maintenance. 204

•  There were two incidents in the 2017 TAR that BP claim would have been prevented by having more operators available. The Incident Summary Record in relation to the first incident does not mention that having more operators would have prevented this incident. 205

•  Additionally, the United Group Limited report outlines a series of failures of UGL work crew in relation to the first incident. Mr Hacking does not consider the non-availability of Operators as having caused this incident. 206

•  Furthermore, in relation to the second incident, the Alky Incident Summary does not identify a mistake by the Operator as having led to the Alky incident. 207

•  Custom and practice is any involvement in TAR is voluntary, and any additional hours attract TOIL. 208

•  It is always better in a TAR event to have volunteers rather than being directed. 209

•  He strongly supports the current custom and practice which involves operators being able to volunteer for non-core work and overtime. 210

•  His current contract of employment states that he will be paid fortnightly. When he was paid monthly, he found it more difficult to budget and it was more stressful towards the end of the pay month. 211

•  BP claimed that Operators have refused to take samples of the purposes of building RAMAN models which are then analysed in the Laboratory. Due to a series of errors, lack of communication and a cancelled meeting there was some confusion about what samples were required. After a series of workgroup meetings clarifying what was required, the samples were taken. 212

•  BP has claimed that operators have refused to support installation and commissioning of a new recycle gas compressor on the Isomerisation unit. He does noes recall any requests by BP for Operator assistance for this project. 213

•  In relation to BP’s claim that there has been a refusal from operators to fill learning and developing roles, conversations with relevant employees indicate one employee did not accept the role as his request for appropriate training was refused by BP or another employee interested in an L&D role had not heard anything from BP about moving into the position. 214

•  ERG training was recognised as a key area for safety improvement in a report BP Commissioned in around 2000. This report resulted in the implementation of a written procedure for handover at the commencement and conclusion of each shift, which in turn resulted in better handovers. 215

Denise Solly

[58] Ms Denise Solly filed a single witness statement and gave oral evidence 216 in support of the AWUWD. At the time of filing, Ms Solly was employed by BP as a Quality Measurement Technician. Among other things, Ms Solly deposed that:

•  She was involved in the discussions regarding laboratory workers moving to an annualised salary in 1996. The laboratory annualised salary incorporated all payments which had been paid prior to being annualised. These payments included normal earnings, overtime and allowances such as meal allowance, telephone call back allowance, clothing, footwear and equipment allowance and Alky clothing allowance. 217

•  There were savings that resulted from the lab moving to annualised salaries in the past, including a reduction in the number of laboratory workers from 28 to 26 people, more coverage on holidays and weekends and the simplification of wages. 218

•  Regarding requests to work overtime, she currently receives TOIL for each occasion on a 1 hour for 1 hour worked basis. 219

•  A technician must work an extra 70 hours a year to fulfil the 35 hour week requirements and in practice the technician accumulates this MUD time as TOIL on a 1 hour for 1 hour worked basis. At the end of the year 70 hours per technician is deducted from their TOIL balance by the Laboratory supervisor to fulfil the MUD requirement. 220

•  To her knowledge she does not know of any time that a request to work outside of the rostered hours has not been met. 221

•  The BPWD seeks to ‘direct’ employees to work additional hours when required to cover shift and other business needs. It is unreasonable to expect some technicians to be able to immediately cover any gaps in their rostered off time as they may have personal or caring responsibilities. Most technicians will respond positively to a request to work outside their rostered hours because they know that they will get that time back as TOIL. 222

•  In the BPWD clauses 29 and 31 attempt to break up the annualised salary into a number of components. She disagrees with this break up as it undermines the original intent of the annualised salary. 223

•  The BPWD breakdown of the current salary is wrong and it is not clear how the different components have been calculated for a shift worker or a day worker. 224

•  At no point during the period that laboratory workers obtained annualised salaries did the company mention that the workforce owes 150 hours of work for no additional remuneration. 225

•  There are numerous examples where BP has recognised that lab technicians are compensated for working any hours over 35 hours by TOIL on a 1 hour for 1 hour basis. 226

•  BP’s requests for laboratory workers to work nightshift on the 2017 TAR and the associated TOIL arrangements acknowledge that shift workers in the laboratory are not compensated to work nightshift and that double TOIL was given for working while on a break. 227

•  Certificates of Quality for the refinery laboratory LT6, there is no need for an afternoon shift worker to be available after 11pm to do this task. 228

•  During the 2017 TAR the initial gaps in the roster for laboratory employees was subsequently filled. 229

•  Two of the scheduled nightshifts were cancelled by BP with less than 24 hours’ notice. The AWUWD seeks 72 hours’ notice for cancellation of the nightshifts as 24 hours’ notice is an insufficient time to rearrange personal life and family plans. 230

•  The AWU objects to BP management being able to direct how employees use their MUD time, in particular the ability for BP to direct a worker to cover for a laboratory technician allocated to project work. 231

•  If MUD time is used to cover people who are moved to projects or other non-core work activities, training will suffer. 232

•  Clause 8.6(g) of the BPWD regarding the ability to move a permanent shift worker to a day worker position and reduce the pay accordingly will render a permanent shift worker to be financially disadvantaged. 233

•  In the BPWD leave loading is not mentioned, and it is unclear whether the rate of pay for a dayworker includes the leave loading the Lab Day Loading component in the attempted breakdown of annualised salary. 234

•  Currently Day workers do not work public holidays, and the BPWD at clause 15.10 stipulates that a day worker may be required to work on a public holiday. Currently laboratory day workers are entitled to take Easter Tuesday as a public holiday, but this entitlement has been omitted from the BPWD. BP staff have been given a ‘my day’ in lieu of East Tuesday wherein they can utilise this day whenever is agreed, and this practice is enshrined in clause 15.10 of the AWUWD. 235

•  The AWUWD fairly compensates dayworkers that are required to work on a public holiday through providing them with 2 hours of TOIL for 1 hour worked as contained in clause 15.10(c), in contrast to the BPWD which provides 1 hour of TOIL for 1 hour worked. 236

•  The AWUWD has removed the line inserted in the BPWD regarding a pension factor for determining the value of pre-1992 service to prevent disputes and disadvantaging laboratory employees. 237

•  BP seeks to remove the entitlement of a 9 day fortnight and this would have personal impacts on the four laboratory dayworkers who are currently eligible to take a rostered day off per fortnight under the 9 day fortnight clause. 238

•  There are major changes in the BPWD to the category structure for laboratory technicians, BP’s proposed category structure is ambiguous, lacks definition and would be difficult to use in practice. 239

•  AWU seeks to continue the redundancy provisions included within the 2014 Agreement as the workforce covered by the enterprise agreement has specific skills unique to the business of oil refining, BP is the only refinery in WA and only 1 of 4 in Australia meaning that finding another equivalent job if made redundant is hard. The BPWD seeks to reduce the current redundancy entitlement conditions to the minimum NES quantum. 240

•  In relation to the issue of contractors and consultation through the Laboratory Consultation Committee, the AWU has concerns about BP’s practices surrounding the use of contractors. This includes the number of permanent EA workers in the laboratory falling from 28 in 1996 to 19 now, wherein the number of contractors in this period has risen. In other parts of BP, the maintenance areas have a higher proportion of contract workers than full time BP workers. Clause 25 of the AWUWD offers job security for the workforce. 241

•  Troy David Irwin

[59] Mr Troy Irwin filed a single witness statement and gave oral evidence 242 in support of the AWUWD. At the time of filing, Mr Irwin was employed by BP as a Process Operator and was also an employee representative on the AWU Negotiating Committee for the AWU Operations/Laboratory Agreement negotiations. Among other things, Mr Irwin deposed that:

•  There were eight phases of meetings between BP and the negotiation team representing employees. 243

•  The BPWD would lead to disputes and unrest as ‘the total culture seems to be shifting’. It would put in doubt the annualised salary, rosters and the ability to have a successful work/life balance through planning for future family time. 244

•  Under the BPWD there is no DSTL CT2A grade for a Day Worker and therefore he would suffer a $72,550.56 salary reduction as he would be classified as a CT2A. 245

•  A fortnightly pay cycle allows him to budget more effectively and to handle financial emergencies better. A monthly pay cycle would require him to renegotiate his pay cycle payments. 246

•  The 2014 Agreement does not mention a start time for Operations Employees, but in his experience working at BP since 1995, the start has always been 7 o’clock. 247 He arrives at the security gate for the start of his shift anywhere between 6:10 or 6:30am, to ensure that a complete handover can take place.248

•  During an OCC meeting held on 7 September 2016, there were concerns raised from DSTLs about the amount of time the DSTLs were spending in covering the STL position and that the coverage was outside the intent of the DSTL role profile and agreements. 249

•  Clause 10.1 of the AWUWD maintains the status quo of employees voluntarily entering into Project teams. 250

•  A handover can take 5 to 10 minutes for an Outside Technician, 10 to 30 minutes for a Control Technician and 15 to 45 minutes for a Deputy Shift Team Leader or Shift Team Leader. 251

•  The BPWD removes any detailed terms of calculation for the bonus and does not guarantee a minimum bonus payment of 2.25% per year. Furthermore, the individual component for the bonus will go against the culture within the refinery. 252

•  The Operations Consultative Committee has enabled efficiencies in the organisation as a result of the consultation with it. 253

•  The BPWD makes no reference to Contractors and Supplementary Labour and the AWUWD retains the ability to influence BP if it is considering outsourcing current direct-employee positions. 254

•  The clause in the AWUWD regarding redundancy is required to protect workers who are transitioning to new jobs/industries. 255

•  The clause in the AWUWD regarding minimum staffing numbers addresses the AWU’s concern that if staffing numbers are to reduce, then BP may rely upon overtime to cover the shortfall, thus eroding the 35 hour week with excess overtime. 256

•  The removal of all guidelines in the BPWD around process testing and process maintenance leaves the tasks open to interpretation and may lead to disputes in the future. 257

Rod Russell

[60] Mr Rod Russell filed a single witness statement in support of the AWUWD. It was indicated to the Full Bench that the AWU would not be relying on Mr Russell’s evidence and accordingly, the Full Bench has not taken his evidence into account.

Section 275 matters

[61] In reaching our conclusions below, we have taken into account all of the matters set out in section 275 of the Act when deciding what terms to include in a workplace determination. Some of these matters will necessarily apply themselves differently to the specific issues in dispute, however by way of summary and in respect of the entire Workplace Determination, we have had regard to each factor in the following way:

The merits of the case – s 275(a)

[62] The Full Bench in Transport Workers' Union of Australia v Qantas Airways Limited; Q Catering Limited 32 (Qantas Airways) observed in relation to the merits consideration (endnotes omitted):

“[33] This is obviously an important consideration although it is neither possible nor desirable to exhaustively list the disparate merit considerations that might be considered relevant in this matter.

[34] EBA7 is an appropriate starting point because it represents the package of terms the parties have previously agreed to apply, the terms under which the parties are presently operating, and the basis for the negotiations conducted by the parties. If terms have not been operating satisfactorily or if circumstances have changed such as to warrant a change, then a party seeking the change must make out a case for the change. Traditional merit considerations will be relevant. These fall generally within the concepts contained in the objects of the Act including the achievement of productivity and fairness through enterprise level collective bargaining, noting that this arbitration is in substitution for bargaining between the parties that did not result in an agreement.

[35] It is also relevant to have regard to practices of other employers in the airline industry and the terms and conditions applying to their employees. Such information is capable of being relevant to the fairness of particular terms as well as the appropriateness of the package of benefits in a highly competitive environment. We note in this regard that in many respects, the current wages and conditions of the employees covered by this arbitration are the highest or among the highest of comparable employees in the airline industry in Australia.

[36] As the arbitration involves the replacement of an enterprise agreement, limitations on powers for making modern awards are not relevant. However issues of principle and the approach of industrial tribunals to particular matters will be relevant to the merits of the case. These include the general reluctance of industrial tribunals to interfere with the right of management to manage its business, unless some unfairness to employees is demonstrated. The Full Bench decision in the XPT Case is frequently quoted as stating the relevant principle. The Bench expressed the principle in these terms:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”

[37] The extent to which the parties have been prepared to deal with matters in enterprise bargaining negotiations and their approach to such matters for this and other groups of employees will also be relevant. Such practices may provide a guide to deciding what provisions are fair and reasonable in a workplace determination applying at this enterprise.”

[63] The Commission has had regard to the history of bargaining and the operation of the previous enterprise agreement in considering the merits of the case. 258

The interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive – s 275(b)

[64] This factor is not relevant to an industrial action related workplace determination.

The interests of the employers and employees who will be covered by the determination – s 275(c)

[65] In relation to s 275(c) of the Act, as articulated in Commonwealth of Australia as represented by the Department of Home Affairs [2019] FWCFB 143 at [32] (‘Department of Home Affairs’) (citing CMFEU v Curragh Queensland Mining Ltd), this section requires the Commission to:

“to take the interests of the employers and employees who will be covered by the determination into account. This consideration calls for an appropriate balance between the legitimate expectations of the employers and employees”  259.

The public interest – s 275(d)

[66] In Department of Home Affairs the Full Bench opined (citing Parks Victoria v The Australian Workers' Union and others [2013] FWCFB 950 at [49]-[50]; O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Randall v Australian Taxation Office (2010) 198 IR 114 at [11]) that the relevant test under this section requires:

“The public interest imports a discretionary value judgment confined only by the subject matter, scope and purpose of the Act and refers to matters that may affect the public as a whole such as the achievement or otherwise, of the objects of the Act, employment levels, inflation and the maintenance of appropriate industrial standards 260.”

[67] The Full Bench in Department of Home Affairs (citing Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [23]; see also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 at [129]-[131]) also noted at [34] that:

“The statutory distinction between the interests of the employer and employees on the one hand found in s.275(c) and on the other, the public interest found in s.275(d) means that the public interest is distinct from the interests of the parties, though the considerations may overlap so that which is in the public interest might also be in the interests of one or more of the parties.”

[68] In considering the public interest, the Commission has also had regard to whether an outcome may have an adverse impact on services that are relied on by a portion of the population. 261

How productivity might be improved in the enterprise concerned – s 275(e)

[69] After considering the use of the term ‘productivity’ within the Act and the term’s legislative context, the Full Bench in Schweppes Australia Pty Ltd v United Voice Victoria Branch (Schweppes), observed at [45]-[46] that ‘productivity’ 262:

“…is directed to the conventional economic concept of the quantity of output relative to the quantity of inputs. Considerations of the price of inputs, including the cost of labour, raise separate considerations which relate to business competitiveness and employment costs.

Financial gains achieved by having the same labour input - the number of hours worked - produce the same output at less cost because of a reduced wage per hour is not productivity in this conventional sense. A reduction of unit labour costs, achieved under Schweppes’ shift proposal through less overtime and lower shift loadings, does not constitute productivity within that conventional meaning. Similarly, an increase in the value of output achieved through product differentiation and a higher average value of the quantity of output is not productivity in the conventional sense.”

[70] In finalising the Workplace Determination, we have considered how workplace productivity may be improved in the enterprise agreement.

The extent to which the conduct of the bargaining representatives for the proposed agreement concerned was reasonable during bargaining for the agreement, and have complied with the good faith bargaining requirements – s 275(f) and (g)

[71] We consider that the bargaining representatives for each party were both reasonable during bargaining for the agreement and compliant with the good faith bargaining requirements. We have taken such factors into account when giving weight to the proposals advanced by either side during the critical stages of the bargaining process.

Incentives to continue to bargain at a later time – s 275(h)

[72] The Full Bench in Department of Home Affairs (citing CFMEU v Curragh Queensland Mining Ltd PRQ4464) noted at [37] that s 275(g) of the Act:

‘…requires the Commission to take into account incentives to continue to bargain at a later time, and is consistent with the encouragement of collective bargaining and the desirability of parties making enterprise agreements central to the objects of the Act.’

[73] The nominal expiry date of the Workplace Determination is an incentive for parties to bargain at a later time. Furthermore, we have closely considered whether the conditions of employment included within the Workplace Determination will disincentivise the parties from bargaining in the future.

Other relevant considerations

[74] The Commission is not confined to the aforementioned statutory considerations and can have regard to other circumstances of the particular case. 263 The Commission has had regard to the practices of other employers in a relevant industry.264

Conclusions regarding the issues to be determined

Definitions

[75] “Not agreed terms” in the BP Proposed Workplace Determination that are not in the AWUWD are:

•  Additional Hours

•  Availability Roster

•  Day Roster

•  Planned TAR Event

•  Total Fixed Salary

•  Work Coordinator

[76] “Not agreed terms” in the AWU Proposed Workplace Determination that are not in the BPWD are:

•  Emergency Shutdown system

•  GLMS – Global Learning Management System

•  HF Acid – Hydro Fluoric Acid

•  LCC – Laboratory Consultative Committee established by clause 22

•  LT6 – Laboratory Coordinator

•  OCC – Operations Consultative Committee established by clause 22

•  Process Technician

•  SELL – Sale, Efficient, Legal and Logical

•  Site – BP Kwinana Refinery and associated work areas

•  VPP – the variable Pay Plan set out in clause 11.2

[77] Clauses that are indicated as ‘agreed terms’ in BP’s Workplace Determination that are not included in AWU’s Workplace Determination include:

•  Clause 10.1(c) (see clause 10.2.1 of AWU Workplace Determination for relevant clause) in relation to TAR Events;

•  Clause 15.5(j) in relation to personal/carer’s leave whilst in receipt of workers’ compensation;

•  Clause 15.6(a) in relation to community service leave;

•  Clause 15.10(b) in relation to public holidays.

[78] The Full Bench has inserted the aforementioned clauses in the draft Workplace Determination. Parties are to notify the Commission if in fact such clauses were not agreed between parties.

Nominal Expiry Date

[79] BP proposes that the Workplace Determination operate nominally until two years from the date that the Workplace Determination is made. The AWU proposes that the Workplace Determination operate nominally until one month after the completion of the 2021 TAR.

[80] On 23 September 2019, BP advised the Commission via email that the 2021 TAR event will commence on 11 February 2021. BP noted that the commencement of the 2021 TAR Event on 11 February 2021 was still subject to delay if certain factors change, however BP maintains its position in respect of the proposed nominal expiry date of 31 December 2021. On 2 April 2020, BP advised the Commission that due to the management of issues associated with COVID-19, the 2021 TAR would not commence in February 2021 and instead commence later in 2021.

[81] Section 272(2) of the FW Act states that a Workplace Determination “include a term specifying a date as the determination’s nominal expiry date”. This suggests that there should be some certainty in the nominal expiry date by reference to a specific date and not an event when the timing of that event is not known with any certainty and its end date also not known.

[82] We have taken into account the interests of both the employer and employee in having some certainty around the period of operation of the Workplace Determination, particularly through the next TAR event. The most recent advice is that it is not anticipated to occur until later in 2021. We have therefore determined that the determination should have a nominal expiry date of 30 June 2022. This provides certainty but also provides an incentive to bargain. It provides adequate time between the completion of the TAR event and the expiration of the Workplace Determination within which bargaining can commence. It meets the interests of the employer in having stability in the Agreement but also the interest of employees in setting a not unreasonable period of time within which they may to commence bargaining.

Conditions of employment

[83] Clause 7 of the BPWD provides for numerous “Employment Conditions”. The proposed clause reads as follows:

“7. EMPLOYMENT CONDITIONS

a) Employees shall be ready, willing and available to perform all duties within their skill, competence and training as directed by the Company and will carry out such duties when directed to do so.

b) Each Employee must comply with the Company’s policies and procedures as amended by the Company from time to time. Such policies and procedures are not incorporated into this Determination.

c) Without limiting the operation of clause 7(a) above or any other provision of this Determination, an Employee must:

i. Perform work in a fully flexible manner as required by the Company, including when required to undertake lower or higher Classification Level duties or tasks incidental to their Classification Level as set out in Schedule A or Schedule B, including process and/or minor maintenance work.

ii. Perform such work, including shift work, as the Company shall from time to time require.

iii. Comply with the directions of the Company to work Additional Hours, scheduled and unscheduled, at any time on any day of the week.

iv. Undertake and maintain training as required and paid for by the Company.

v. Undertake their whole job, even where this requires working beyond or outside ordinary rostered hours.

vi. At all times comply with the Company’s site health and safety requirements.

vii. Comply with the Company’s direction to carry out work required for the safety of Employees and any plant or for the prevention or control of pollution.

viii. Use all appropriate protective clothing and equipment provided by the Company for specific circumstances and comply with the Company’s direction to keep the work place and all equipment in a clean and safe condition.

ix. Adhere to the Company’s Code of Conduct and the Values & Behaviours.

x. Participate in risk reviews, development of work procedures, project work, investigations and any other process which is deemed necessary by the Company.”

[84] The AWU does not seek a clause of this nature. Their position in respect of BP’s proposed clause 7 is summarised as follows:

•  The proposed term imposes obligations on employees in terms which are open to interpretation and disputation. Terms such as “fully flexibly” and “whole job” are inappropriate for inclusion in the Workplace Determination.

•  The AWU disputes the concept embodied by the term “Additional Hours” in sub-clause 7(c)(iii) of the BPWD.

•  The AWU submits that sub-clause 7(b) of the BPWD is problematic because it references BP’s policies without incorporating them into the determination and whilst preserving BP’s ability to amend such policies from time to time. An employee in breach of BP’s policies and procedures would, in addition to disciplinary action, be exposed to claims of breach of section 280 of the Act for contravening the Workplace Determination. It is the AWU’s position that it is inappropriate for a workplace determination to impose obligations which cannot be ascertained with certainty.

•  The AWU seeks a clause which clarifies that employees can agree to, but may not be directed, to leave their substantive shift position temporarily to work on a “project”. The AWU also seeks a term that restricts BP’s ability to require an employee to work on Project Work in circumstances where the absence created on the employee’s shift, results in inadequate coverage for that shift.

•  Whilst the terms included in clause 7 of the BPWD may be common in contracts of employment and collective agreements, the Commission must determine whether the clause sought by BP is indicated for a workplace determination, by having regard to the factors set out in s 275 of the Act.

[85] Whilst we do not disagree with the intention of BP, we consider that there should be some restrictions placed around the clause. In its current form the clause provides a very broad discretion to the employer to re-arrange work as it sees fit. Whilst this may not be the intention it is the effect of the clause. We will include the clause but with some modifications:

“7. EMPLOYMENT CONDITIONS

a) Employees shall be ready, willing and available to perform all duties within their skill, competence and training as directed by the Company and will carry out such duties when directed to do so.

b) Each Employee must comply with the Company’s policies and procedures as amended by the Company from time to time. Such policies and procedures are not incorporated into this Determination.

c) Without limiting the operation of clause 7(a) above or any other provision of this Determination, Subject to the specific terms of this agreement, an Employee shall:

i. Perform work in a flexible manner as required by the Company when required to undertake lower or higher Classification Level duties or tasks incidental to their Classification Level as set out in Schedule A or Schedule B, including process and/or minor maintenance work that are within their skills and qualifications.

ii. Perform such work, including shift work, as the Company shall from time to time require.

iii. Comply with the directions of the Company to work Additional Hours, scheduled and unscheduled, in accordance with clause 8.8, at any time on any day of the week.

iv. Undertake and maintain training as required and paid for by the Company.

v. At all times comply with the Company’s site health and safety requirements.

vi. Comply with the Company’s direction to carry out work required for the safety of Employees and any plant or for the prevention or control of pollution.

vii. Use all appropriate protective clothing and equipment provided by the Company for specific circumstances and comply with the Company’s direction to keep the work place and all equipment in a clean and safe condition.

viii. Adhere to the Company’s Code of Conduct and the Values & Behaviours.

ix. Participate in risk reviews, development of work procedures, project work, investigations and any other process as required within the skills, qualification and knowledge of the employee as deemed necessary by the Company.

d) The operation of this term is not intended to allow the Company to reduce in classification or pay any employee without his or her consent.

e) If a direction given to an employee under this clause is contrary to a provision of this Agreement the provisions of the Agreement will prevail. This does not mean that a direction under this clause cannot complement a provision of the Agreement.

[86] We consider that the changes we have made to the clause will provide certainty to employees and will ensure that the explicit terms of the Agreement prevail in circumstances where there may be some conflict with a direction otherwise given to an employee. The clause continues to provide BP with the flexibility to manage its business in a reasonable manner. It is not wrong to require that the management of that business not conflict with the legal obligations contained in the Agreement. To allow a deviation from these would not, in our view, be reasonable or just. 265

[87] We do not agree with the proposal of the AWU that employees are not able to be directed to undertake project work. BP is entitled to utilise its workforce within their skills and capabilities. To agree to the change sought by the AWU would be to unduly restrict that right.

Components of annualised salary and fixed total salary

[88] BP’s submits that the Workplace Determination should expressly recognise that the annualised salary paid to Operators who are Shift workers includes components for overtime, shift handover, public holidays and shift coverage. Relevantly, BP noted that the annualised salary for Operators also includes a component for shift loadings or penalties for working on nights and on weekends, and a component for allowances. Similarly, BP submits that the Workplace Determination should expressly recognise that the annualised salary paid to Laboratory Employees who are Shift workers includes a component for overtime and public holidays.

[89] Further, BP proposes that the annualised salary be described in the Workplace Determination as a “Total Fixed Salary”. 266 The components of the “Total Fixed Salary” are specified in the BPWD as follows:

•  The Total Fixed Salary for Operators: 267

•  Includes “Base Pay, “Additional Hours”, “Shift Loadings”, “Public Holidays” and “Miscellaneous” for Shift Workers; and

•  includes “Base Pay” and “Additional Hours” for Day Workers.

•  The “Total Fixed Salary” for Laboratory Employees: 268

•  Includes “Base Pay”, “Additional Hours”, “Shift Loadings”, “Public Holidays” and “Miscellaneous” for Shift Workers; and

•  includes “Base Pay”, “Additional Hours” and “Lab Loading” for Day Workers.

[90] BP submits that the purpose behind the specification is to identify the differences in components for Shift Workers and Day Workers and to ensure that there is no future dispute over the components of the annualised salary. 269

[91] The AWU says that it is unnecessary and inappropriate to label remuneration as “Total Fixed Salary” for the following reasons:

•  BP do not rely upon the breakdown for the purpose of calculating other entitlements; 270

•  Since 1992, the parties have negotiated agreements on the basis that the remuneration paid was an annualised salary that was inclusive of all shift loadings and allowances 271; and

•  BP’s calculations of the amounts set out in the BPWD are arbitrary, and there is evidence before the Commission that the rates used to calculate the shift loading do not reflect current Modern Award Shift Loading rates, do not reflect shift patterns worked by Laboratory Worker and includes a “leftover component…we put aside the 4 per cent as a miscellaneous allowance component.” 272

[92] We see no reason not to include in the Agreement those components that make up the annualised salary of employees. Such information has in less explicit terms been included in previous agreements between BP and its workforce and the AWU. The difference in this clause is the allocation of amounts to specific purposes, for example, overtime, shift loadings and public holidays.

[93] The provision that the total fixed salary is remuneration for all purposes maintains the current accepted treatment of the annualised salary.

Regularity of salary payments

[94] It is BP’s position that the annualised salary be paid monthly, half in advance and half in arrears. 273 It is the AWU’s position that the annualised salary be paid fortnightly.

[95] We have determined that the Workplace Determination will provide that the annualised salary to be paid monthly, half in advance and half in arrears, as proposed by BP.

[96] It was the submission of the AWU that, for some employees, there is a contractual entitlement to payment of a salary on a fortnightly basis. However, we accept BP’s submission in reply that if the Workplace Determination provides that the annualised salary be paid monthly as proposed by BP, then it will override the contractual entitlement, and further that the contractual entitlement can be varied by BP on the provision of reasonable notice and therefore BP could vary the salary payment to a monthly basis by providing such notice.

[97] We accept the benefits BP say will accrue to it in running a single payroll cycle. We do acknowledge however that there may be a period of adjustment to employees in moving from fortnightly to monthly pay. In this regard we propose that employees be given at least 3 months’ notice of the change. We would encourage BP to consult with the AWU and employees and take action to mitigate any adverse effects on individuals from the change. Including for example, assistance with budgeting and necessary alternations for periodic payments.

Salary increases

[98] The salary increases proposed by either party are set out below:

BP	AWU
a) a gross lump sum payment equal to 1.5 per cent of annualised salary payable on the first available pay period following the commencement of the operation of the Workplace Determination (see clause 11.2(a) of the BPWD);	a) an increase in salary of 12 per cent of annualised salary on the making of the Workplace Determination;
b) an increase in salary of 1.5 per cent of annualised salary on 1 April 2020 (see clause 11.2(b)) of the BPWD); and	b) an increase in salary of 4 per cent of annualised salary on 1 March 2020; and
c) an increase in salary of 1.5 per cent of annualised salary on 1 April 2021 (see clause 11.2(c) of the BPWD).	c) an increase in salary of 4 per cent of annualised salary on 1 March 2021 (see clause 11.1.1 of the AWUWD).

[99] The Full Bench has determined the following increases to the total fixed salary:

i. 4 per cent to be paid on the first full pay period following the commencement of the operation of the Workplace Determination;

ii. 2.5 per cent to be paid on the first full pay period 12 months after the commencement of the operation of the Workplace Determination; and

iii. 2 per cent to be paid on the first full pay period prior to the nominal expiry date of the agreement, which is 30 June 2022.

Company bonus scheme

[100] Clause 41 of the 2014 Agreement provides for a “Company Bonus” known as the “Variable Performance Pay”. The Company Bonus involves assessment by BP against both business and team related measures and a series of specific sub-measures. Assessment is undertaken using a scorecard and a percentage rating for all employees is determined. BP then determines the amount of the Company Bonus, to be paid in March each year and which is set as a minimum of 2.25% of the annualised salary as at 31 December in the previous year. The AWUWD largely replicates the terms of the 2014 Agreement relating to the payment of bonuses. 274

[101] BP wishes to no longer provide the Variable Performance Pay. BP proposes that the Workplace Determination record that Operators and Laboratory Employees are eligible to participate in a Company Bonus plan that provides for a discretionary payment only. BP proposes that the Company Bonus plan will be the “Annual Cash Bonus Plan”. The Annual Cash Bonus Plan currently applies to employees of BP other than specified employees, including Operators and Laboratory Employees. BP submits that its proposal is appropriate as:

•  Other employees at BP participate in the discretionary bonus plan covered by BP policy;

•  Other operators at other BP Group refineries participate in the Annual Cash Bonus Plan; and

•  A discretionary bonus, as opposed to a guaranteed payment, will provide an incentive for employees to improve their individual performance, as this is one measure used in the Annual Cash Bonus Plan.

[102] The AWU submits that BP’s policies, which currently provides for the Annual Cash Bonus Plan, will not form part of the Workplace Determination and BP’s proposed term contains no guarantee that an employee will receive a bonus payment. Accordingly, the AWU submits that BP’s proposed term represents an erosion in employee entitlements compared with the current Variable Performance Pay provided for in the 2014 Agreement and that it cannot be characterised as more beneficial than the complete absence of a bonus term. 275 The AWU oppose a bonus plan based on individual performance because of the potential impact this may have on safety and workplace culture.

[103] Having considered the competing arguments, we do not consider it appropriate to vary the existing bonus arrangements. To this extent, the Variable Performance Pay arrangements that were applicable to Operators and Laboratory Employees under the 2014 Agreement will be replicated in the Workplace Determination.

Superannuation

[104] As agreed by the parties, the Workplace Determination which we will make will contain a clause that provides that BP will make superannuation contributions to Operators and Laboratory Employees at the same rate as for other employees of BP, which is no less than the provisions of the Superannuation Guarantee (Administration) Act 1992 (SCG Act) or such other federal legislation as amended from time to time. Operators and Laboratory Employees may enter into salary sacrifice arrangements as per company policy.

[105] There is dispute between the parties in respect of two areas concerning superannuation. The first area of dispute is whether superannuation contributions should be paid fortnightly. The second area of dispute is whether the Workplace Determination should confer an entitlement to superannuation contributions when employees are absent from work on workers’ compensation.

[106] We have determined that employee salaries will be paid monthly 276 and we are of the view that it is appropriate for superannuation payments to be paid in accordance with the regularity of this cycle. The 2014 Agreement and its predecessor agreements do not specify the regularity of such payments, and there is no evidence before us that BP have failed to make superannuation contribution payments either late, at all, or quarterly as required by the SCG Act.

[107] In respect of superannuation during periods of absence on workers’ compensation, the AWU propose that the Workplace Determination contain the following term:

“Subject to the governing rules of the relevant superannuation fund, the Company must also make superannuation contributions for the period of any absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that:

(a) the employee is receiving workers’ compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements; and

(b) the employee remains employed by the Company.”

[108] In support of its position, the AWU submits that the effect of the Superannuation Guarantee Ruling SGR 2009/2 (the SRG Ruling) is that employers are not subject to the guarantee charge if superannuation is not paid for an employee who is absent from work but in receipt of workers’ compensation. It is BP’s current practice to make superannuation contribution payments for employees who are in receipt of workers’ compensation payments and the term sought would enshrine this practice.

[109] BP opposes the above term sought by the AWU because BP is not required under the SRG Ruling to make superannuation contributions for an employee who is absent from work but in receipt of workers’ compensation, the 2014 Agreement and predecessor agreements do not require BP to make such payments, and there is no evidence of any difficulty associated with the non-provision of such payments.

[110] The current practice of BP is to pay superannuation when an employee is absent from work due to a work-related injury or illness and the employee is receiving workers’ compensation payments or direct payments from the employer.

[111] BP’s argument that it is not required to make such payments so the practice should not be codified in the Workplace Determination is unconvincing. We are satisfied that it is in the interests of the employees and the employer to have some certainty as to the payment of superannuation at such times.

[112] We will include the term as proposed by the AWU in the Workplace Determination.

Redundancy pay entitlements

[113] The parties accept that the Workplace Determination should include a definition of redundancy and a clause regarding consultation. The wording of such a definition and a consultation clause is agreed between the parties and will be included in the Workplace Determination.

[114] BP seek the inclusion of a term which provides that redundancy benefits shall be in accordance with BP’s current company Retrenchment Policy and no less than the NES entitlements. BP considers the current level of redundancy pay to be excessive and wishes to standardise the redundancy pay across all its employees. Furthermore, they seek the inclusion of a term which provides that reasonable endeavours will be made by the Company to redeploy Employees whose positions have been made redundant and that no severance payment will be made if an Employee is redeployed.

[115] Currently, under the 2014 Agreement, the redundancy payments for Operators and Laboratory Employees are to be in accordance with the Redundancy Policy as at the date of the signing of the 2014 Agreement. This Redundancy Policy applies only to Operators and Laboratory Employees and, since at least 1 April 2018, BP’s current Retrenchment Policy applies to managerial and administrative employees. For the purposes of confidentially, it is not appropriate to disclose the Policy here.

[116] In support of its position, BP seeks to standardise the level of redundancy pay across all its employees and submits that there is no justification on the evidence that Operators and Laboratory Employees are provided higher redundancy pay than other employees. Further, BP submits that there is no basis to suggest that the scale in the Retrenchment Policy is inadequate.

[117] The AWUWD seeks the inclusion of a term which provides the same redundancy entitlements as those set out in the Redundancy Policy as at the signing date of the 2014 Agreement. The AWU submit that the term proposed by BP is inappropriate as BP can amend its policies at any time. Furthermore, that if there are redundancies during the life of the Workplace Determination, the terms that the parties have previously agreed should apply are appropriate having regard to the high degree of skill and specialisation that the workforce possesses.

[118] Whilst BP’s Redundancy Policy as at the signing of the 2014 Agreement remains confidential, it is difficult to provide a detailed comparison between it and BP’s current Retrenchment Policy. However, for the purposes of this Workplace Determination we simply note that the entitlements under the current policy are different than those as at the signing date of the 2014 Agreement, with the exception of those employees who commenced employment prior to 1 January 2003 who “may be eligible for a different severance payment calculation”. 277

[119] We are aware that the existing redundancy entitlements of employees to be covered by the Workplace Determination are not specified in the current Agreement but rather the 2014 Agreement contains a commitment to pay entitlements as specified in the Redundancy Policy in play at the time of making the 2014 Agreement. We are aware that this benefit is superior to that contained in the NES.

[120] BP has a different redundancy scheme that applies to employees other than Operators or Laboratory employees. It wishes to have this policy apply across all employees. This scheme is also superior to that provided in the NES although not at the same standard as that which currently applies to Operators or Laboratory Employees.

[121] Beyond a desire to standardise its redundancy provisions no basis is given to reduce the redundancy entitlements of employees to be covered by the Workplace Determination. For this reason, we have decided not to alter the redundancy provisions applicable to employees. The redundancy provisions of the Workplace Determination should indicate that the redundancy entitlements will be those applicable under the 2014 Agreement.

[122] The AWUWD also contemplates other redundancy entitlements, including an election not to work notice period, time off without loss of pay and production of proof for an employee who takes time off during the notice period to attend an interview. BP opposes such entitlements, however notes that if the Commission is minded to insert into the Workplace Determination an entitlement to time off, that the Commission should do so on the express basis that an Employee who takes time off during the notice period to attend an interview during the notice period must provide BP with proof of attendance. 278

[123] The AWU seek a variation to the current redundancy provisions to allow an employee given notice of redundancy to elect not to work the notice period.

[124] We see no reason to grant such a claim. Should BP not require an employee to work through the notice period, there is an obligation on them to pay out the period. Should an employee not wish to work the notice period they may be able to negotiate an early departure – but there should be no expectation that they would be paid for the period of notice not worked.

[125] This is an unusual claim and one devoid of merit given the purpose of the notice period.

[126] The AWU seeks time off (one day) during the notice period in relation to redundancy to enable an employee to seek alternative employment. This provision is in the Award. BP opposes the insertion of such a provision primarily because a number of employees might take the same day off resulting in BP not having sufficient staff to operate the plant safely.

[127] We have decided to grant the application of the AWU in respect of this matter subject to the taking of the day off being subject to agreement with the employer. This still ensures the fears expressed by BP are not realised.

[128] We agree that, should an employee access such time off, they be required to provide proof of attendance at the interview.

Leave entitlements

[129] There is dispute between the parties in respect of certain issues relating to the following categories of leave:

•  Annual leave

•  Compassionate Leave

•  Personal leave

•  Community Service Leave

•  Family and domestic violence leave

•  Long service leave

•  Public Holidays

[130] We will briefly set out the issue of dispute between the parties in respect of each leave category and set out our conclusions for each in turn.

[131] The parties agree that the Workplace Determination should contain a mechanism for the management of excessive annual leave, however there is dispute between them as to the level of excessive leave. BP proposes that the amount of excessive annual leave for Day Workers be 280 hours and the AWU propose that the amount be 350 hours. The 2014 Agreement and its predecessor agreements identified 280 hours as excessive annual leave for Day Workers.

[132] We see no reason to alter the current definition of excess annual leave from 280 hours.

[133] The proposed Workplace Determination of each party provides that “Compassionate Leave entitlements will be in accordance with Company policy but will be no less than the NES entitlement”. The Workplace Determination which we will make will also include such a provision. The AWU seek further wording which reproduces BP current policies on compassionate leave, which is, in its submission, preferable given that BP can amend its policies from time to time.

[134] We see no reason to include any more than the NES entitlement. We will include the terms as proposed by BP.

[135] In respect of personal leave, the issue of dispute between the parties is whether the Workplace Determination should provide that employees are entitled to personal leave in accordance with the NES, as proposed by BP, or whether it should specify that Employees are entitled to 10 days of personal leave per year or 10 shifts per year for shift workers. This issue is one of substance rather than form, given that the NES states that for each year of service an employee is entitled to 10 days of paid personal leave. The AWU concede that there is no substantive difference in entitlements between the proposed clause of each party, as the NES entitlement is such that shift workers are entitled to 10 shifts of personal leave because a “day” as referred to in the NES means a 24 hour period rather than a work day calculated by reference to ordinary hours of work. However, the AWU refers to evidence heard in this matter which it submits is inconsistent with the NES, 279 and further submits that its proposed clause resolved uncertainty regarding the construction with the NES.

[136] We see no reason to repeat the NES in the Workplace Determination. We will include in the Workplace Determination the clause as proposed by BP.

[137] In respect of community service leave, the proposed Workplace Determination of BP incorporates the NES whilst the proposed Workplace Determination of the AWU reproduces the relevant provisions of the NES.

[138] We see no reason to repeat the NES in the Workplace Determination. We will include in the Workplace Determination the clause as proposed by BP.

[139] In respect of family and domestic violence leave, the proposed Workplace Determination of BP provides that such leave will be as per BP’s policy and no less favourable than the NES. The BP policy provides for more generous benefits than the NES, including through the BP Employee Assistance Program and the provision of a safety plan. The proposed Workplace Determination of the AWU reproduces the relevant provisions of the Oil Refining and Manufacturing Award 2010.

[140] The NES provides the most contemporary minimum provisions in relation to this form of leave. We see no reason to depart from it or adopt the wording as proposed by the AWU. We will include the clause as proposed by BP in the Workplace Determination.

[141] In respect of long service leave, the AWU seek a clause which provides that the provisions of the Long Service Leave Act (WA) apply to the extent that those provisions are not inconsistent with the relevant clause of the Workplace Determination. BP oppose the inclusion of such a provision on the basis that BP has a policy relating to long service leave, BP currently applies the provisions of the Long Service Leave Act (WA) and that it has not been demonstrated that there is non-compliance with such legislation.

[142] We see no issue with the inclusion of the additional paragraph in this clause as proposed by the AWU. It creates no further obligation on BP and provides clarity to employees. The clause in the Workplace Determination will include this additional wording.

[143] Finally, there are three issues of dispute between the parties in respect of public holidays. The first issue of dispute is BP’s proposed clause which provides that “Depending on [BP’s] operational requirements, Employees may be required by [BP] to work on public holidays”.

[144] BP seeks to be able to direct an employee (day worker) to work on a public holiday. It says that as it is a ‘major hazard facility…and given the need to occasionally shut down processing units on an unplanned basis (usually in an emergency)’ it is reasonable that it be able to do so. 280 We agree but we will amend the clause proposed by BP so that it reads:

“Employees may be required by the Company to work on public holidays in emergency situations, unplanned shutdowns or where there is a shortage of skilled operators.”

[145] The second issue of dispute between the parties in respect of public holidays is whether Day Workers who are required to work on a public holiday will receive one hour of time off in lieu of overtime (TOIL) for each hour workers, as proposed by BP, or will receive two hours of TOIL, as proposed by the AWU.

[146] The AWU seeks the accrual of 2 hours of TOIL for each hour of overtime worked on a public holiday. BP seeks one hour of TOIL. We will maintain TOIL at 1 hour for each hour of overtime worked subject to what we have said below on TOIL.

[147] The proposed Workplace Determination of both parties provides that Day Workers are entitled to Western Australia gazetted public holidays. The AWU seeks an additional entitlement for employees in the form of “one additional day (“My Day”) in lieu of Easter Tuesday.” BP oppose the inclusion of this additional entitlement on the basis that neither the Act, any law in Western Australia or the Award declare or prescribe Easter Tuesday as a public holiday. Further, the 2014 Agreement did not confer on employees the right to be absent from the refinery on an additional day in lieu on Easter Tuesday. Currently, the BP “My Day Policy” allows an employee to select another day in the year to be taken as the additional holiday (which was, prior to 1 January 2015 on Easter Tuesday) and submit that there is no demonstration on the evidence of any unfairness or unreasonableness associated with the conferral of the additional holiday by way of company policy.

[148] We see no reason to grant employees an additional day off in lieu of Easter Tuesday.

Consultative Committees

[149] The proposed Workplace Determination of both parties provides for a “consultative committees” clause. The parties are also agreed that the Workplace Determination should contain a clause that BP and delegates of Employees will maintain an OCC and LCC and that meetings of the OCC and LCC will be scheduled as required and no reasonable request for a meeting will be refused.

[150] In addition to the agreed terms, BP proposes that the scope of the consultative committees is to consult on the operation of the Workplace Determination and that each consultative committee will consist of eight standing members (4 BP representatives, 3 delegate Employees and an AWU representative wherever appropriate).

[151] Similarly, in addition to the agreed terms, the AWU proposes that the “consultative committees” clause should contain the following:

“c) The composition of the Consultative Committees shall be determined on an ad hoc basis depending on the issues arising for discussion, but a quorum for any Consultative Committee meeting shall be 3 Employee representatives and 3 Company representatives.

d) The purposes of the Consultative Committees is to provide a forum for mutual communication and feedback on site related issues with the aim of improving workplace performance and relationships.

e) The Consultative Committees shall monitor and review the amount of overtime, TOIL and accrued leave.

f) The Consultative Committees may be used prior to any issues, dispute or grievance being referred for resolution under Dispute Resolution Procedure in clause 16.

g) The Consultative Committees shall monitor and review the operation of this Workplace Determination.

h) The Company may delegate decision making authority for specific matters to one or both Consultative Committees.”

[152] BP opposes the detailed specification of the role and function of the OCC and the LCC within AWU’s proposed ‘Consultative Committees’ clause. 281 In short, BP regards AWU’s proposed subclauses as unnecessary because there is no need:

•  To specify that the OCC and LCC will meet at least quarterly if there is:

•  An agreed term that the OCC and the LCC will meet as required and no reasonable request for a meeting will be refuse; or

•  No issue that requires consultation.

•  To specify that the membership of the OCC and the LCC may be increased;

•  To specify a quorum for a consultative body;

•  To specify such a detailed purpose;

•  To restate the function of the OCC and the LCC when this function is inferred from the statement of the purpose of the OCC and the LCC;

•  To state that the Company may confer additional functions on the OCC and the LCC;

•  For BP to provide contract labour requirement details every six months; and

•  For a consultative committee to express views on core duties of Employees and any disputes of such core duties should be resolved under the dispute resolution process.

[153] In support of their ‘Consultative Committee’ subclauses, AWU submit:

•  An interest among employees to reduce overtime and BP’s interest to reduce TOIL accruals make them appropriate issues for consultative committees to address, particularly if the number of Operators by BP will reduce in the future 282;

•  BP’s assertions that consultative committees do not progress matters expeditiously because employee representatives do not respond to action items within the allocates time are unfounded 283;

•  The consultative forum may assist in building and maintaining cooperative workplace relationships 284.

[154] We have carefully considered the submissions of both parties on the Consultative Committees (CC). We consider that there is some benefit to the parties in having aspects of the CCs spelt out.

[155] We have therefore determined, in relation to the additional provisions the AWU propose:

•  A quorum for the CC does not need to be specified. It is up to each party (BP, AWU and employees) to ensure it has in attendance the required number of people;

•  We agree with the “purpose” as proposed by the AWU and this should be included in the Workplace Determination;

•  We see no reason for the clause to specify that the consultative committee “monitor and review” overtime, TOIL and excess leave although these are matters that may be relevant to its considerations. Further, these matters do relate to the operation of the Workplace Determination so come within the scope of the role of the CC as proposed by BP;

•  We agree that it is reasonable that the CC monitor the operation of the Workplace Determination;

•  We do not consider it necessary to specify that the CC may be used prior to disputes being referred to the dispute resolution process. If matters arise in relation to the operation of the Workplace Determination the CC may deal with those but it should not be seen as a de facto first step in the dispute resolution procedure where this is not otherwise specified in the dispute settling procedure;

•  BP may refer any matter to the CC for its views. This is not the same as delegating decision making. We see no need to specify that BP may delegate its decision making on specific matters to the CC.

Starting and finishing times

[156] There is dispute between the parties in respect of the starting and finishing times to be specified in the Workplace Determination for both Operators and Laboratory Employees.

[157] Currently, the 2014 Agreement provides that:

•  Laboratory Employees working day shift will commence at 6.00am and finish at 6.00pm; 285 and

•  Laboratory Employees working afternoon shift will commence at 11.00am and finish at 11pm. 286

[158] There is no express reference to a start times for Operators working day shifts or night shifts in the 2014 Agreement, however AWU submits that a custom existed wherein day shifts commenced at 7.00am and night shifts commenced at 7.00pm. 287 However, this is disputed by BP who note that most Operators arrive at BP at around 6.00am or 6.00pm.288

[159] For Operators, BP proposes that the Workplace Determination specify that day shifts commence at 6.00am and finish at 6.00pm and that night shifts commence at 6.00pm and end at 6.00am. Also for Operators, the AWU proposes that the Workplace Determination specify that day shifts commence at 7.00am and finish at 7.00pm and that night shifts commence at 7.00pm and finish at 7.00am.

[160] We have considered the multitude of issues in relation to this matter including:

•  The actual time many Operators arrive at work;

•  The interaction between Operators and maintenance personnel; and

•  The benefits that would accrue in terms of improved productivity with greater alignment between the commencement time of operators and maintenance personal.

[161] For these reasons we have determined that starting and finishing times for Operators should be:

•  Day shift – 6.00am – 6.00pm

•  Night shift – 6.00pm – 6.00am.

[162] We are mindful that this will be a substantive change for some Operators and therefore propose that Operators be given three months’ notice of the commencement of the revised starting and finishing times and that such notice be given not earlier than the date of commencement of the Workplace Determination.

[163] For Laboratory Employees, the parties agree that day shifts will commence at 7.00am and finish at 7.00pm.

[164] For Laboratory Employees working afternoon shifts, BP proposes that the Workplace Determination specify that afternoon shift commence at 11:30am and finish at 11:30pm. The AWU proposes that the Workplace Determination specify that the afternoon shift commence at 11.00am and finish at 11.00pm.

[165] We do not consider that a half hour alteration to the commencement time for the afternoon shift will create fatigue issues. To the extent that fatigue issues are more prevalent at the end of the shift, an alteration to starting hours by 30 minutes will not change this.

[166] The substantive issues for BP appear to be that:

•  laboratory shift work employees take a 30-minute lunch break after about 30 minutes of work. It is not apparent why this is the case and why it cannot be otherwise managed; and

•  some testing cannot be done after 11.00pm at night.

[167] It is apparent that a 30-minute alteration to the commencement time for afternoon shift will stretch the operating hours of the laboratory by 30 minutes. Whilst such a change will be in the interests of BP, we are not convinced that the productivity gain is such that it reasonably offsets the interests of employees.

[168] For these reasons we have decided not to alter the starting and finishing times for the afternoon shift in the laboratory. It is recommended that the meal break issue be subject to discussion between the parties.

Shift Coverage

[169] In relation to shift coverage, the parties agree that:

•  Employees must provide shift coverage;

•  Subject to clause 9.1(c), the Employee waiting for the relief must continue covering the position until relieved;

•  After 16 hours of continuous work for Operators, the Employee must finish their shift after notifying the Company; and

•  An Employee on leave is exempt from this position. The exemption will apply from the time the employee completes their last rostered shift to the time the employee starts back on the first rostered shift.

[170] In addition to the agreed terms, BP submits that the ‘Shift Coverage’ clause include the following (underlined):

a) Employees must provide Shift Coverage and shall work Additional Hours in connection with the provision of Shift Coverage in accordance with clause 8.8.

c) Operations Employees must be available to provide Shift Coverage in accordance with clause 26 in Schedule A.

d) After 14 hours of continuous work for Laboratory Employees or 16 hours of continuous work for Operations Employees, the Employee must finish their shift after notifying the Company.

[171] In addition to the agreed terms, AWU propose the following clause be inserted:

e) Laboratory Employees employed as shift workers that are requested to work in excess of a 12-hour shift may do so, provided that they are not required to work more than 14 hours in any consecutive 24 hours. This provision does not stop a Laboratory Employee from having the right to refuse to work more than 12 hours without due notice or the right of the Company to request that a 12 hour shift be extended on occasion.

[172] BP submits that the Commission should recognise expressly that the annualised salary paid to Operators who are Shift workers includes components for overtime, shift handover, public holidays and shift coverage. 289

[173] AWU submits that there is a higher demand on higher classification Operators to provide shift coverage and that the BPWD does not address the issue of shift coverage by Deputy Shift Leaders for Shift Team Leaders. AWU submits that the problems associated with shift coverage are linked to the adequacy of BP’s employee numbers and the competencies of the workforce. In short, AWU submit that the associated problems can be solved by ensuring that BP employees a minimum number of Process Technicians such that the need for calling in employees from their rostered days off is minimised and by ensuring that the BP workforce is continually trained so that they can be deployed flexibly to units when unexpected absences arise. 290 Shift coverage arrangements should be such that employees who are unable to provide shift coverage for personal reasons have their circumstances accommodated without penalty.291

[174] In reply, BP submit that AWU’s claims regarding a higher demand on higher classification Operators is not borne out in the evidence. Further, that BP anticipates that Deputy Shift Team Leaders will provide coverage for Shift Team Leaders.

[175] We agree with the additions to the Shift coverage clause proposed by BP and will include them in the proposed Workplace Determination. The changes provide appropriate cross referencing within the Workplace Determination.

[176] We consider it appropriate to limit the maximum number of daily hours for laboratory employees. We do not consider the additional paragraph, as proposed by the AWU, is necessary.

Availability Roster

[177] BP argue that in recent times the company has encountered significant difficulties in arranging shift coverage. The difficulties have included Operators not informing BP that they are travelling overseas or interstate and are thus not available to provide shift coverage, some Operators refusing to provide shift coverage and an uneven distribution of shift coverage amongst Operators. 292 There have been 48 occasions since January 2014 where BP has needed to contact Employees not on the availability list to provide shift coverage.293 BP has been close to shutting down a unit or the Kwinana Refinery due to the difficulties associated with arranging shift coverage.294

[178] AWU argue that the existing system has never failed to result in shift coverage. However, AWU acknowledges that some of the shortcomings with the current system include the uneven spread of overtime allocation, the time Shift Managers have to spend making multiple phone calls to arrange shift coverage and the higher demand on employees at higher classification levels to provide shift coverage. 295 The AWU submits that the key to the success of shift coverage will be the adequacy of BP’s employee numbers and the competencies of the workforce.296

[179] BP seek clauses in relation to Operators providing Shift Coverage. In summary, when asked by a Shift Manager, Operators are mandated to advise the Shift Manager of their availability, during a particular non-rostered period, to be called by the Company to provide Shift Coverage. This is for the first 48 hours following the end of their rostered period. Operators may advise the Shift Manager that they are unavailable to provide Shift Coverage and are not required to provide any reason or explanation. 297 BP’s proposed clauses also provide that an Availability Roster will be developed one month in advance and that the Company will in the first instance seek to provide Shift Coverage using ‘spare’ Operators rosters on the particular Shift.298 The clauses also provide for circumstances where BP has contacted all Operators, but no Operators respond that they are attending work to provide Shift Coverage. In this circumstance, BP may direct an ‘available’ Operator to attend work to provide Shift Coverage, having regard to the amount of Shift Coverage provided by the Operator in the previous 12 months and relevant personal circumstances that Operators have communicated to BP.299 Operators listed as ‘available’ on the Availability Roster who are contacted by BP to provide Shift Coverage and who attend work and perform work during a non-rostered period will receive TOIL in accordance with clause 8.9(b) of the BPWD. Furthermore, if an Availability Roster shows a gap in coverage for the required positions within 10 days from the particular non-rostered period in question, a Shift Manage may nominate a non-rostered Operator to be available to provide Shift Coverage.300 Shift Managers will address concerns related to instances of unavailability by an Operator, and Operators may be subject to disciplinary processes.301

[180] BP argues that the clauses are appropriate to be included in the Workplace Determination because:

•  The clause will require Operators to inform BP if they are unavailable 302;

•  The clause will avoid an outcome where there is no availability to provide shift coverage 303;

•  The clause will avoid the circumstance of BP needing to contact non-rostered Operators to provide shift coverage for the operation of a processing unit 304;

•  The clause will hopefully enable the more even distribution of shift coverage 305;

•  The clause will provide the Operators with fair remuneration (in the form of TOIL) for providing shift coverage 306; and

•  Employees are remunerated for being available to provide shift coverage (in the form of 74 of the 150 Paid Additional Hours at double time pay) 307.

[181] Clause 9.2 of the AWUWD provides a process for managing shift coverage. In summary, where a position on shift is vacant due to a rostered employee being absent from work due to a short-term unplanned absence, the following procedure would be adopted:

•  First the Shift Manage will determine whether the vacancy can be filled by Spares already rostered on shift;

•  Second, if the vacancy cannot be filled, the Shift Manager will make telephone contact with the Available Operators to request they cover the shift in the following order:

•  The employee in the same shift team who has performed the least number of over-time hours;

•  The employee in the same shift team who has performed the second least number of over-time hours;

•  This is until the employee in the same shift who has performed the most overtime hours is contacted.

[182] Under AWU’s proposal, if none of the employees in the same shift team have agreed to the request to cover the shift, then employees in any other shift team will be contacted in the same order as previously expressed. Additionally, the AWUWD provides that Operators who are on the 6 days off part of their shift cycle are deemed to be available Operators for the purposes of covering a vacancy and employees on leave are exempted from the provision. Further, available Operators are not obliged to agree to a request to cover a shift and need not give reasons for declining a request. However, an available Operator must respond to the Shift Manager’s call either by answering the call or returning the call as soon as practicable upon a message being left. 308

[183] BP opposes AWU proposal because the clause does not require Operators to inform BP if they are unavailable to provide shift coverage even if they are nominated as an ‘Available Operations Employee’. Furthermore, the clause does not guarantee that there will be Operators available to provide shift coverage in the absence of a nomination mechanism in circumstances of there being no voluntary availability. The clause also does not guarantee that an Operator will attend BP to provide actual coverage as Operators are not obliged to agree to a request to provide coverage. 309 BP also submit that BP has expressly addressed personal circumstances in its proposed clause.310

[184] Having considered the competing arguments, the Workplace Determination will contain the terms proposed by BP in relation to an availability roster.

Rosters

[185] The BPWD requires Shift workers to work one of three rosters (known as Shift Roster 1, Shift Roster 2 and Shift Roster 3). The AWU does not oppose the implementation of Shift Roster 1 and Shift Roster 3.

[186] Shift Roster 1 is the current shift roster worked by Shift workers employed by BP. Currently, Shift workers work 48 hours over a 10 day shift cycle, comprised of two consecutive 12 hour day shifts and two consecutive 12 hour night shifts, followed by six days off.

[187] Shift Roster 2 is a shift roster to be worked by some Shift workers only, being the Refinery Technicians working in the Offsite area and, perhaps, a small number of additional Operators. Under Shift Roster 2, Shift workers will work 48 hours over a 10 day shift cycle, comprised of four consecutive 12 hour day shifts, followed by six consecutive days off.

[188] Shift Roster 3 is one of a number of shift rosters relating to TAR Events, intended to be only worked close to or during TAR Events. Under Shift Roster 3, Shift workers may work the following rosters:

•  A four and two roster: comprised of four consecutive 12 hour shifts, followed by two rostered shifts off. Start times will be between 5am and 7am for day shift and 5pm and 7pm for night shift. Afternoon shifts may start between 11am and 1pm and finish between 11pm and 1am. The shift start time will be communicated in advance of the TAR Event;

•  A four and four roster comprised of four consecutive 12 hour shifts, followed by four rostered shifts off. Start times will be between 5am and 7am for day shift and 5pm and 7pm for night shift. Afternoon shifts may start between 11am and 1pm and finish between 11pm and 1am. The shift start time will be communicated in advance of the TAR Event; and

•  A six and one roster comprised of six consecutive 12 hour shifts with one rostered shift off. The rostered day off may occur prior to the 7th shift by direction of the Company taking into account operational and safety requirements and personal circumstances. Start times will be between 5am and 7am for day shift and 5pm and 7pm for night shift. Afternoon shifts may start between 11am and 1pm and finish between 11pm and 1am. The shift start time will be communicated in advance of the TAR event. It is anticipated that the Six and One roster will be primarily utilised during the Start-up and Shut Down phases of a TAR Event.

[189] BP submit that Shift Roster 2 is appropriate to be included in the Workplace Determination as it increases the continuous interaction between Shift workers and other staff working at the Refinery and it is consistent with provisions of the 2014 Agreement relating to the parties agreeing to implement systems that facilitate work being performed efficiently. 311

[190] AWU provide qualified support for Shift Roster 2. AWU submits that Shift Roster 2 and an associate shift pay scale can be introduced without a term permitting BP to direct a shift-worker to work as a day worker and with a term preserving the shift rate remuneration for a shift-worker who agrees to a request that they transfer to day work. 312

[191] In submissions in reply, BP clarified its position that Shift Roster 2 is to be worked by Shift workers, not Day Workers and that an Operator working Shift Roster 2 is to be paid the annualised salary for Shift workers, not Day Workers. 313 Further, that an Operator who is a Day Worker is to be paid an annualised salary for Day Workers.

[192] The Workplace Determination will provide for shift rosters 1, 2 and 3 as set out in the BPWD.

[193] The Workplace Determination will clarify that Shift Roster 2 is worked by shift (and not day) workers and that an Operator working Shift Roster 2 receives the shift work annualised salary. Further, the Workplace Determination will specify that the ability of BP to require a shift worker to work shift roster 2 is separate and distinct from the transfer of a shift worker to day work under clauses 8.6(g) and (h).

[194] Another issue of contest between the parties is in respect of the clauses sought by BP in relation to the proposed ability to direct employees to work different shifts by providing the relevant notice.

[195] BP seeks a clause which provides that BP may direct a Shift worker to work a different Shift, a different Shift Roster or to work a Day Roster for a nominated period of time on one week’s notice or permanently on one month’s notice. 314 BP proposes that a lessor period of notice may be required if agreed between the Company and the Employee, or at the discretion of the Company where the company determines that operational circumstances require a reduced notice period.315 BP propose that a roster system may be implemented or altered by the Company to meet the needs of the business as determined by the Company, subject to consultation requirements and undertaking not to rely upon this term before the nominal expiry date of the Workplace Determination.316

[196] BP submit that this clause is appropriate as it allows BP to fill Learning and Development roles and increase the number of Operators working during a day shift. 317 BP contest AWU’s submission regarding the personal difficulties that some Employees are likely to face if they are required to change from being a Shift worker to a Day Worker.318

[197] The AWU submit that BP has not demonstrated that terms giving BP a broad discretion to change an individual employee’s shift are justified. 319 The need for flexibility relate only to TAR, day positions for Process Technicians and L&D roles; flexibility concerns are answered by AWU’s proposals for full flexibility in designing rosters for TAR and that it is inappropriate that training roles be filled except with an employee’s agreement.320 Additionally, BP has not made any attempt to define or model any form of alternative roster arrangement that it might hypothetically implement under such a term and that the absence of evidence means that the Commission cannot make any assessment of the term against the criteria in s 275 of the Act.321 The broad discretion which BP seeks in such terms diminishes the incentive for parties to negotiate in relation to the issue of shift arrangements.322

[198] Furthermore, AWU submit that the fact that BP undertakes not to rely upon cl 8.6(j) of their proposed Workplace Determination prior to the nominal expiry date of the determination is an admission that the term is not necessary. 323 Moreover, the AWU submits that it is unclear what ‘a different shift’ in clause 8.6(g) means, especially if this relates to a shift pattern other than that described in the determination.324 AWU rely on evidence that BP have also not demonstrated that it will support employees to acquire the skills necessary for alternative roles.325

[199] In reply, BP submit that BP intend the ‘different shift’ to be one of the five shifts used in the five panel shift system. 326 Further, in relation to the issue of BP not supporting employees to acquire necessary skills for alternative roles, BP contest this issue based on their closing submissions at paragraphs [627] – [628].

[200] BP seeks a clause which provides that BP may vary a Day Roster or direct a Day Worker to work a different day roster or to work a shift roster for a nominated period of time on one weeks’ notice or permanently on one month’s notice. 327 BP proposes that a lessor period of notice may be required if agreed between the Company and the Employee, or at the discretion of the Company where the company determines that operational circumstances require a reduced notice period.328 Additionally, BP proposes that a Day Worker who works a Shift Roster in accordance with this clause will be paid a Shift worker rate of pay for the duration that they work a Shift Roster.329 Further, BP propose that BP may vary or suspend any Day Roster immediately in the case of an emergency.330

[201] BP submit that this clause is appropriate to include in the Workplace Determination as it allows BP to appoint Operators work TAR rosters during TAR Events 331 and to appoint Operators or Laboratory Employees to work on shift where there is a shortage of qualified Operators or Laboratory Employees.332

[202] AWU submit that historically and currently the enterprise agreements have made no provision for a Day Roster for Operators and that only some Laboratory employees are engaged as day workers. 333 AWU express the same concerns with clause 8.7 of the BPWD as the concerns relating to clause 8.6.

[203] We agree that, subject to operational requirements, BP should be able to direct, on giving appropriate notice, a shift worker to work a different shift roster on a temporary or permanent basis or a shift worker to work a day roster on a temporary basis. However, BP must obtain the consent of an employee if they wish to direct a shift worker to work a day roster on a permanent basis.

[204] We do not consider the relevant notice periods as proposed in the BPWD inadequate but consider that the Workplace Determination should require that any reduction in the notice period only occur in exceptional circumstances.

[205] We do not consider that clause 8.6(j) in the BPWD is necessary. BP do not intend to utilise the provision until after the nominal expiry date of the Workplace Determination. In such circumstances it is a matter best left to bargaining for the agreement following the Workplace Determination.

[206] We further consider it appropriate that clause 8.6(g) be clear that the transfer to alternative shifts means the transfer to shifts on the five panel shift system 334 otherwise provided for in the Workplace Determination or implemented by BP following appropriate consultation with employees and the AWU as parties to the Workplace Determination.

[207] We have also decided that the clause include a requirement to consult with affected employees prior to any final decision being made to alter shifts and that the employee’s personal circumstances will be taken into consideration prior to making a final decision.

[208] We have also decided that similar protections should be afforded in the Workplace Determination to any consideration of the permanent transfer of an employee from Day Roster to Shift Roster.

Make up hours

[209] The parties agree that, when calculated against the ordinary 35 hours per week, the current shift pattern for all Shift workers results in a shortfall of 70 hours for Laboratory Employees and 73 hours for Operators per year. Further, the parties agree that the Workplace Determination should specify the number of hours, referred to as ‘Make Up Hours’, to be worked by those employees who are Shift workers.

[210] In 2004, BP reduced the number of Make Up Hours for Operators from 73 to 40 hours on the basis that the remaining 33 hours were allocated to compensating Operators for shift handovers conducted at the start and end of shifts. The 33 hours were calculated on the basis of 8 minutes handover at the start of a shift and 8 minutes handover at the end of a shift, with four shifts worked in a roster cycle and 31 roster cycles worked each year.

[211] BP submits that it regards the annualised salary since 2004 as including a component representing payment for 33 hours of shift handover, and that it has increased the rate of pay since 2004 but has not altered or reduced the 33 hours representing shift handover. Accordingly, it is BP’s position that the Workplace Determination provide that the number of Make Up Hours for Operators is 73 hours and the number of Make Up Hours for Laboratory Employees is 70 hours. BP’s position that the number of Make Up Hours for Operators is 73 hours is premised on the previous portion of Make Up Hours for Operators allocated to shift handover (33 hours) being re-allocated to Additional Hours, such that 73 hours remain available for Operators for training or other business needs.

[212] Firstly, we consider the issue of contest between the parties in respect of the number of Make Up Hours to be performed by Operators and Laboratory Employees.

[213] The proposed Workplace Determination of both parties provides that the number of Make Up Hours to be performed by Laboratory Employees per annum is 70 hours. The Workplace Determination which we will make will provide that Laboratory Employees are to work 70 Make Up Hours per annum.

[214] In respect of Operators, it is the position of the AWU that the number of Make Up Hours to be performed per annum remains at 40 hours. The AWU seek a clause wherein the number of make-up hours for Operators is reduced to 40 hours per year, in recognition of the handover time at the beginning and end of each shift, and the on shift use of the relevant online Company training system. 335

[215] We have carefully considered this issue along with those matters intended to be included in the additional hours clause of the BPWD (see below). We have concluded that it is not appropriate that shift hand over time be included in make up time but rather in the additional hours provisions.

[216] Secondly, we consider the appropriate matters to be performed by Operators and Laboratory Employees when working the Make Up Hours, and more specifically the allocation of a particular number of hours required to be performed for the purposes of training.

[217] BP propose that where the hours worked in a Shift Roster average less than 35 ordinary hours of work per week, Make Up Hours are to be worked as follows:

“i. For Operations Employees, 73 Make-up Hours per annum must be worked as directed by the Company during a calendar year. A proportion of these hours will be rostered by the Company per annum for the purposes of training. The remaining hours will be used for other business needs as determined by the Company. The Company will provide a minimum of 10 days’ notice of the requirement to work Make-Up Hours.

ii. For Laboratory Employees, 70 Make-up Hours per annum must be worked as directed by the Company during a calendar year. A proportion of these hours may be rostered by the Company per annum for the purposes of training. The remaining hours will be used for other business needs as determined by the Company, including for the purpose of covering a planned or unplanned absence. The Company will provide a minimum of 10 days’ notice of the requirement to work Make-Up Hours. However, if Make-up Hours are used for the purposes of covering a planned or unplanned absence, the Company will provide as much notice as practicable (which may be less than 10 days).” 336

[218] The AWU seek a clause which restricts the allocation of 40 Make Up Hours for Operators and 70 Make-up Hours for Laboratory Employees to training, but not to any particular content or form of training. The AWU submits that the allocation of 40 Make Up Hours to training (and not to other ‘business needs’) will operate in practice as a safeguard to ensure the workforce has the minimum requisite emergency response training. Further, the AWU submit that to the extent that the BPWD does not allocate 40 hours to training, there will be an erosion on the focus on training, resulting in safety and emergency responses being compromised.

[219] In response, BP is concerned that 70 hours of training for Laboratory Employees and 73 hours of training for Operators may not be required each year and that some of the training time might be better allocated to the performance of other functions. Accordingly, BP wishes to have the flexibility to allocate some of the hours to the performance of other functions.

[220] With respect to Operators we have decided that at least 40 of the 73 make-up hours should be dedicated to training. This is in accordance with current practice. The remaining 33 hours should be allocated as determined by BP to meet other business needs with a priority given to meeting training needs.

[221] With respect to Laboratory employees we consider that there should be a minimum allocation to training. The AWU say it should be 70 hours and BP indicate no minimum. We have decided not to specify how this make up time is utilised given the lack of evidence on that matter but indicate that the clause should require that training is given priority from the make-up hours specified.

Working arrangements

[222] The parties agree that the ordinary hours of work for employees are an average of 35 hours per week and that BP will allow a 10-hour rest break between shifts.

[223] In relation to the ordinary hours of work, the AWU seek the inclusion of the following terms:

“Subject to the base requirement to work a minimum average of 35 ordinary hours per week the object of the annualised salary is to encourage the needs of the business to be met in the most efficient way, thereby reducing the need for extended hours to be worked.

It is not [BP’s] intention to artificially increase the extended hours worked through company-initiated hours. Where [BP] initiated hours are required (e.g. an extra person on the panel), the SM concerned will be consulted with a view to minimising the impact on the workforce.

[BP] initiated hours are limited to only production requirements.”

[224] We do not consider the clause proposed by AWU is necessary. Changes to hours of the type contemplated by this clause it seems to us must be covered by the consultation provisions of the Workplace Determination. Further, any increase in “ordinary hours” must result in a reduction in “additional hours” that could be required to be worked and would require some adjustment to the base rate of pay specified in the rates of pay in the Workplace Determination.

[225] In relation to casual employees, clause 8.4(b) of the AWUWD states:

“b) For each hour worked, a Casual Employee will be paid no less than 1/18201h of the Salary amount for their Classification Level as set out in clause 11 of this Determination, plus a casual loading of 25%.”

[226] Clause 8.4(b) of the BPWD is expressed in the following way:

“For each hour worked, a Casual Employee will be paid no less than 1/1820th of the Total Fixed Salary amount for their Classification Level as set out in either Schedule A or B to this Determination, plus a casual loading of 25%.”

[227] While the AWUWD uses the word ‘Salary’ in the context of indicating the method for calculating casual employee pay, BP uses the words ‘Total Fixed Salary’. In the AWUWD the classification levels are within ‘clause 11’, whereas the BPWD refers to such levels within ‘either Schedule A or B’.

[228] The Full Bench has determined that the appropriate wording for clause 8.4(b) will be:

“For each hour worked, a Casual Employee will be paid no less than 1/1820th of the Total Fixed Salary amount for their Classification Level as set out in either Schedule A or B to this Determination, plus a casual loading of 25%.”

Additional hours

[229] The Total Fixed Salary proposed by BP 337 includes a payment to employees for 150 additional hours per calendar year. The BPWD proposes that the 150 Additional Hours is to be allocated as follows:

•  For Operators:

•  20 hours of the 150 Additional Hours as compensation for shift handover;

•  56 hours of the 150 Additional hours to a “Bank of Hours”; and

•  74 hours of the 150 Additional Hours as compensation for Operators making themselves available, during a non-rostered period, to be called by BP to provide shift coverage.

•  For Laboratory Employees:

•  94 hours of the 150 Additional Hours as compensation for working night shifts during TAR Events and unexpected business needs; and

•  56 hours of the 150 Additional Hours to a “Bank of Hours”.

[230] In relation to Operators, we note BP’s submissions that Additional Hours represent a change from 2014 Agreement in the following respects:

•  Regarding the allocation of 20 of the 150 Additional Hours: the hours allowed for shift handover cease to be part of Make Up Time and instead become part of Additional Hours and the amount of hours allowed for shift handover reduces from 33 hours to 20 hours (as shift handover at the start of a shift is actually performed during a 12 hour shift and the shift handover at the end of a shift lasts 8 minutes). 338

•  Regarding the allocation of 56 of the 150 Additional Hours: a Bank of Hours was not contained in the 2014 Agreement and these hours recognise that during an eight week TAR event, workers may work 7 hours beyond the ordinary hours of 35 hours. 339

•  Regarding the allocation of 74 hours of the 150 Additional Hours: this allocation was not contained in the 2014 Agreement and these hours represent a payment for Employees making themselves available for Shift Coverage. 340

[231] In relation to Laboratory Employees, we note BP’s submissions that Additional Hours represent a change from 2014 Agreement in the following respects:

•  Regarding the allocation of 94 of the 150 Additional Hours: the hours were not contained in the 2014 Agreement and recognise that traditionally Laboratory Employees have worked night shifts during TAR events. 341

•  Regarding the second allocation of 56 of the 150 Additional Hours: a Bank of Hours was not contained in the 2014 Agreement and represents the same Bank of Hours as allocated for Operators. 342

[232] BP does not propose that employees receive additional remuneration (or TOIL) for working the additional 150 hours as payment has already been included in the annualised salary. 343

[233] Further, it is the position of BP that in addition to the 150 paid additional hours, employees must work further reasonable additional hours when required by BP. The additional hours shall be worked by employees for the purposes of TAR Events, project work, when attending and performing work during a non-rostered period as a result of being called by BP to provide shift coverage and other business needs as determined by BP. BP advances the following six reasons in support of its position:

•  The clause (which only requires the performance of additional hours after working an average of 35 hours) is consistent with the maximum number of ordinary hours specified in s 62(1) of the Act;

•  The clause is consistent with the ability of an employee to refuse to work unreasonable additional hours (see s 62(2) of the Act);

•  The Refinery is a major hazard facility and it may be necessary for BP to reasonably require employees to work additional hours in circumstances of an emergency shutdown or unexpected TAR event;

•  The clause operates with other provisions of the BP Proposed Workplace Determination so as to provide a reasonable form of remuneration (in the form of a credit against a ‘Bank of Hours’ already paid in the annualised salary or in the form of TOL) for the employees working the additional hours;

•  The employees and the AWU have previously maintained that the employees cannot be directed to perform any hours over 35 hours per week and that additional hours were entirely voluntary and it is appropriate to avoid the potential for future disputes by including an express ability of BP to issue a direction to work reasonable additional hours; and

•  During bargaining, the AWU stated that there was no term in the 2014 Agreement which required an Operator to participate in TAR Events, that participation in TAR Events was voluntary and that it is appropriate to avoid the potential for future disputes by including an express ability of BP to issue a direction to work reasonable additional hours. 344

[234] It is the position of the AWU that an employee should be entitled to one hour of TOIL for each additional hour worked in excess of ordinary hours. The Total Fixed Salary proposed by BP includes a component for “Additional Hours’. The AWU submits that this amount is not an increase to the annualised salary provided for in the 2014 Agreement, rather it is an amount deducted from the annualised salary in the 2014 Agreement allocated to “Additional Hours”. The AWU submits that the consequence of this is that employees are not entitled to any compensation for working overtime unless and until they work more than 150 hours of overtime in a year.

[235] We are satisfied that 150 additional hours have been factored into the calculation of the annualised salary in the 2014 Agreement. The history of the annualised salary supports this.

[236] It seems not unreasonable that employees are required to work those hours for which they are remunerated and that have been included in the annualised salaries without further payment but that, once the hours are exhausted, additional payment (in this case through TOIL) is made.

[237] We are therefore satisfied that the Workplace Determination should contain a clause that provides for additional hours for Operators that are allocated as follows:

•  To shift handover. We are satisfied that 20 hours is adequate for this purpose. We do not accept the evidence from the AWU as demonstrating that at least 30 hours should be allocated for this purpose.

•  To shift coverage. We are satisfied that 74 hours is adequate for this purpose.

•  To a “bank of hours”. This bank should be 56 hours to be utilised as proposed by BP. The bank does not carry over year to year but rather expires at the end of each year. Any hours worked in addition to 56 for the purposes specified in clause 8.8.1(b) will be paid in accordance with clause 8.9 (TOIL)

[238] We are also satisfied that the Workplace Determination contain a clause that provides for additional hours for Laboratory Employees that are allocated as follows:

•  For working night shift during TAR events (94 hours).

•  To a “bank of hours” (56 hours). The bank of hours is to be utilised in accordance with clause 8.8.2(b) and does not accrue.

[239] Beyond accounting of the bank of hours for the purposes of TOIL that may be required to be paid we accept these arrangements, in addition to ordinary hours, are in total satisfaction of the Total Fixed Salary specified in the Workplace Determination.

[240] This arrangement provides BP with flexibility in the use of the total hours for which employees are being remunerated, hence improving productivity at the site. We do not consider the arrangement contrary to the interests of BP or its employees. It provides certainty and clarity as to hours of work and payment for that work.

Nine day fortnight

[241] The AWU proposes that the Workplace Determination permit a Laboratory Day Worker to elect to work a nine-day fortnight. Currently, there are four employees engaged by BP as Day Workers in the Laboratory, with three of those employees working a nine-day fortnight.

[242] BP opposes the Workplace Determination permitting Laboratory Day Workers to elect to work a nine-day fortnight. BP has ceased its practice of permitting nine-day fortnights for all other employees and seeks to standardise its practice across the workforce in this regard. Further, the nine day fortnights entail that on some Mondays or Fridays the Laboratory is short staffed such that BP is unable to test some refined products so that they cannot be delivered to customers or BP is required to engage contractors to conduct the testing of the refined products. BP submits that there is minimal use of the nine-day fortnight given only four employees work a nine-day fortnight and that it is willing to consider entry into an individual flexibility arrangement as an alternative to a nine-day fortnight for the four Laboratory Employees.

[243] We acknowledge that some Laboratory Employees who work day work currently work a 9-day fortnight. It is our intention that this not be changed for those employees without the express approval of the employee concerned. This will be reflected in the Workplace Determination.

[244] We consider that further requests to work flexible hours should be dealt with through an individual flexibility agreement.

Time off in lieu

[245] The parties agree that the Workplace Determination should contain agreed terms that TOIL must be taken at a mutually agreeable time for the company and the employee, must be taken before annual leave and must be paid out on termination of employment if there remains accrued TOIL. Furthermore, both parties agree that a minimum of 4 hours will accrue per event if an Employee is called in before commencing a rostered shift or called back after completing a rostered shift.

[246] Firstly, we consider the circumstances in which an entitlement to TOIL will arise.

[247] Traditionally, BP provided employees with TOIL for all additional hours worked.

[248] The Total Fixed Salary proposed in BP’s Workplace Determination, as addressed in paragraph [92] of this decision, includes a component for Additional Hours. The consequence of the Additional Hours component of the Total Fixed Salary is that Operators and Laboratory Employees are not entitled to any additional remuneration for working overtime until the 56 banked hours of Additional Hours have been performed.

[249] In relation to Operators, BP’s Workplace Determination provides that TOIL will accrue for each additional hour worked when:

•  An Operation Employee’s Bank of Hours (56 hours) is exhausted; 345 or

•  When an Operator works Additional Hours because the Operator attends work and performs work during a non-rostered period as a result of being called by the Company to provide Shift Coverage. 346

[250] In relation to Laboratory Employees, BP’s Workplace Determination provides that TOIL will accrue for each additional hour worked when:

•  A Laboratory Employee’s Bank of Hours (56 hours) is exhausted. 347

[251] The AWUWD entitles employees to one hour of TOIL for each additional hour worked in excess of 35 ordinary hours. In summary, the AWU does not accept the clauses relating to TOIL in the BPWD because:

•  It has the practical effect of reducing the employees’ entitlement to overtime compared with the current entitlement under the 2014 Agreement, because it increases the hours that employees must work before that overtime will attract TOIL 348;

•  Employees have accepted employment with BP after having the entitlement to receive TOIL for hours worked in excess of ordinary hours represented to them 349;

•  It could have unfair consequences where:

•  Some employees may work a greater proportion of those additional hours than other employees 350;

•  Some employees are required to work their additional hours on a night shift, and others on a day shift 351; and

•  An employee may work for less than a year, for instance if they retire or take parental leave and may be required to work all Additional Hours in part of the year, resulting in unreasonable work demands 352.

•  Based on AWU’s evidence, there are insufficient amounts of time being worked (and TOIL accrued) to justify any change.

[252] In relation to their TOIL clause in their Proposed Workplace Determination, BP submit that:

•  AWU’s assertion that the additional hours may result in some Employees performing a higher proportion of the Additional Hours than other Employees ignores that the BP Proposed shift coverage contains provisions designed to achieve a more equitable distribution of shift coverage; 353

•  Suggestions of unfairness if some Employees are required to perform Additional Hours on night shift and other Employees are required to perform the Additional Hours on day shift will not be cured by the provision of TOIL as opposed to requiring Employees to work for the 150 Additional Hours; 354

•  No evidence suggests that Employees only accepted employment with BP on the basis of the representation from BP that TOIL will be provided for additional hours, there is no suggestion that TOIL is a contractual entitlement and in any event the employment was always subject to the terms of industrial instruments given statutory force. 355

[253] Secondly, we consider the basis for calculating TOIL.

[254] In relation to the basis of calculating TOIL, the AWUWD proposes that Operations Employees are compensated with 1 hour of TOIL for working hours in excess of 35 hours up to 42 hours per week and 2 hours of TOIL for each hour worked in excess of 42 hours per week. 356 AWU submit that outside of TAR events, there is insufficient amounts of overtime being worked to justify any change from current arrangements and rely on evidence to assert that the bank of hours would not be exhausted in a non-TAR year.357

[255] Further, the AWU proposes that for unexpected TAR events, Laboratory Employees are compensated for working night shifts during a TAR event at the rate of 2 hours TOIL for 1 hour worked. 358 AWU submit that double time for overtime is an industry standard, and that double TOIL will provide an incentive for BP to utilise clause 10 of the AWUWD in a manner which evenly distributes overtime across the workplace.359

[256] BP submit the basis of calculating TOIL must contemplate the nature of an annualised salary. 360 BP submit that AWU claims that double-time for overtime is an industry standard ignores that double time under the Award is payable by reference to the base rate of pay under the Award and the annualised salary paid to Employees is significantly higher than the base rate of pay under the Award.361 Moreover, double time under the Award is paid for an overtime amount and not TOIL.362 Finally, that the AWU proposal to provide for TOIL at double time should be rejected on the ground of lack of merit.363

[257] The AWUWD provides that for ‘Additional hours for all TAR events’ employees are to be paid 1 hour of TOIL for each hour worked between 35 and 42 hours per week and 2 hours TOIL for each hour worked beyond 42 hours per week. 364

[258] TOIL will be payable:

•  Where an employee attends for shift coverage purposes; and

•  Where a “bank of hours” (see above) has been exhausted.

[259] Having considered the matters regarding TOIL, we are of the view that BP shall be required to pay Operators and Laboratory employees TOIL after their bank of hours is exhausted. We have determined that 1 hour of TOIL will accrue for each additional hour worked upon the bank of hours being exhausted.

[260] In relation to part-time employees, the AWU seek the inclusion of a clause stipulating that part-time employees will receive double time payment for hours worked in excess of their contracted ordinary hours. 365 The AWU submit that there is no evidence before the Commission of the arrangements that apply to part-time employees. Further, that it is undesirable for a part-time worker to be engaged to work specified part-time hours, to then accrue TOIL for hours worked in excess of those hours ‘on a pro rata basis’. The overtime hours worked by part-time employees should be compensated by an hourly rate of pay.366 Finally, the AWU submit that there are practical difficulties of a term providing for pro-rata entitlements for a part-time employee in the event that BP’s proposed clauses regarding additional hours are adopted.367

[261] BP submits that there is no difficulty in pro-rating additional hours for part-time employees. A part-time employee is required to work a pro-rata amount of 150 additional hours, with the proportion of hours worked by the part-time employee in comparison to 35 ordinary hours for full-time employees being the appropriate pro-rata amount of the 150 additional hours to be worked. 368

[262] BP’s position regarding part-time employees is that part-time employees are paid an amount for overtime, they will have the pro-rated component allocated to three matters (shift handover, shift coverage and bank of hours) and part-time employees will be providing with TOIL at the rate of one hour TOIL for one hour worked in excess of the exhaustion of the bank of hours (other than shift coverage circumstances). 369

[263] AWU’s additional claim in relation to TOIL for part-time employees is that TOIL should not apply but rather part-time employees should be compensated by an hourly rate of pay.

[264] We understand that the concern of the AWU derives from the terms of the BPWD which state that a part-time employee should receive, on a pro-rata basis – equivalent pay and conditions of a full-time employee. We understand they take this to mean that for each additional hour of time worked (that would attract TOIL) the part-time employee only receives this on a pro-rata basis. For example, an employee working a 50% fraction would only receive 30 minutes of TOIL for each hour of overtime.

[265] BP have clarified in their reply submissions that a part-time employee will receive TOIL on the basis of 1 hour of TOIL for each hour of overtime or shift coverage.

[266] We consider that the clause 8.9 can be suitably amended to make this clear by the inclusion of the words “full-time or part-time” before the words “Employee’s bank of Hours” in clause 8.9(a) and before the words “Operations Employee” in clause 8.9(b)

Contractors

[267] The AWU seeks the following clause, modelled of the 2014 Agreement, in respect of contractors to be included in the Workplace Determination:

“If the Company is considering the engagement of contractors or labour hire to perform work, which is of the type of work that could be covered by this Workplace Determination, the Company will notify and consult with the OCC [Operations Consultative Committee] and LCC [Laboratory Consultative Committee] regarding the matter. The consultation will focus on measures which could be implemented by the parties to increase the amount of the work which could be performed by employees covered by this Workplace Determination. As part of the consultation process, the company will inform the OCC and LCC in writing of the company’s reason why it is considering engagement of contactors or labour hire, the identity of the proposed contactor or labour hire provider, the amount and type of work to be performed by the proposed contractor or labour hire workers, the number of contractors or labour hire workers and the duration of the expected engagement of the contractor or labour hire.”

[268] The AWU submits that employees have a “proper interest” in ensuring outsourcing if for legitimate business reasons and in having the opportunity to be meaningfully consulted about it. The clause is sought to “to ensure job security…and to solidify the consultation process” and “to ensure that adequate safety and controls in a major hazardous facility are maintained”. Further, such consultation is appropriate in a workplace where roles are highly specialised and safety critical, and effective communications between external labour and the existing workforce can be achieved through the involvement of the OCC and LCC.

[269] In summary, BP opposes the inclusion of the clause proposed by the AWU for the following reasons:

•  the AWU proposed clause impedes flexibility and efficiency as it imposes an additional step prior to engaging contractors or labour hire providers;

•  the AWU proposed clause is impractical in that it requires the identification of the proposed contractor or labour hire provider at the time that BP is considering the engagement of a proposed contractor or labour hire provider (and when the proposed contractor or labour hire provider will not have been identified); and

•  the AWU proposed clause is likely to involve multiple meetings and thus take a matter of months to complete and thereby slow down the process of engaging contractors or labour hire providers.

[270] The Full Bench recognises the legitimate interest employees may have in the use of contractors. It is a matter on which the consultative committees established by the Workplace Determination may well wish to express a view. For these reasons we have decided to allow the clause as proposed by the AWU. However, the third sentence of the clause will be amended to read “As part of the consultation process the company will inform the OCC or LCC (as is relevant) why it is considering engagement of contractors or labour hire, the amount and type of work to be performed and the duration of the expected engagement.”

[271] We consider that the provision does not add unnecessarily to the burden on BP and meets a legitimate interest of employees to be consulted on the work to be performed and how that work will be performed.

Process testing and maintenance

[272] The AWUWD inserts a ‘Process Testing’ clause that, amongst other things, stipulates:

•  Refinery Process Technicians are to perform process testing as is directly related to the execution of their principal role;

•  Testing will not be performed if it is anticipated the test will take more than 20 minutes;

•  Such tests intend to facilitate the completion of Process Technician’s operations function efficiently, without derogating from the duties of those classifications generally responsible for Laboratory testing;

•  Work performed under this clause includes the following indicative tasks: Density, Colour, TDS, Drager and PH.

[273] AWU submit that the inclusion of this clause reflects the provisions of clause 43 of the 2014 Agreement with minor amendments to aid certainty and clarity. Further, that the inclusion of the term makes it clear that Operators are required to perform some testing tasks, and so it will reduce the potential for dispute over demarcation of roles.

[274] BP proposes that the Workplace Determination does not address the issue of process testing and process maintenance on the basis that Operators will perform such work consistent with BP’s ‘Employment Conditions’ clause in the BPWD. 370

[275] BP oppose the inclusion of the Process Testing clause on the basis that:

•  It is unnecessary as clause 7 of the BPWD stipulates that Operators would perform all duties in accordance with their skills, competence and training, including process testing;

•  The clause is likely to lead to future disputes on the basis that the clause is a provision limiting the duties of the Operators;

•  There is no justification for a provision that enables an unidentified person to refuse to perform testing on the basis of an anticipation that the test will take more than 20 minutes; and

•  The clause focuses on the time taken for the test, not the time taken by the Operator to perform the test.

[276] The AWUWD inserts a clause addressing ‘Process Maintenance’ that, amongst other things, stipulates:

•  Maintenance tasks will be performed to facilitate the completion of a Process Technician’s function in the most efficient way possible;

•  Maintenance work associated with this part of a Process Technician’s role must be incidental to the primary operating task;

•  A non-exhaustive list of the indicative tasks that are included in the work performed by Process Technicians under the clause.

[277] AWU submit that clause 53 of the 2014 EA is in substantially the same terms as this proposed clause and that the inclusion of the term makes it clear that Operators are required to perform some maintenance tasks, and so it will reduce the potential for dispute over demarcation of roles.

[278] BP oppose the inclusion of the Process Maintenance clause on the basis that:

•  Some Operators are trades qualified and should not be restricted from the duties that they might otherwise perform, and some Operators have been discouraged from exercising their full skills and competence and may be discouraged again in the future;

•  The clause may be used as a limitation on the performance of duties to be performed by Operators;

•  The clause only identifies ‘indicative tasks’, thereby leaving open the potential for disputes over tasks not listed in the ‘indicative tasks’.

[279] The clauses proposed by the AWU reflect provisions in the 2014 Agreement. They each provide some structure around the work to be carried out by Process Technicians. To this extent they do provide some limitations within which the clause proposed by BP in relation to “Employment Conditions” will operate.

[280] We do not consider that the AWU proposal and the “Employment Conditions” clause cannot operate together. The “Employment Conditions” clause is no reason to reject the AWU proposal.

[281] We do accept however that the changes proposed by the AWU to clause 43 of the 2014 Agreement are necessary.

[282] We will include the amended clauses 43 and 53 from the 2014 Agreement in the Workplace Determination.

Classification arrangements

[283] There are two issues of contest between the parties in relation to classification arrangements.

Roles and responsibilities

[284] The first issue of contest between the parties relates to the role and responsibility descriptions specified for employees in the Workplace Determination.

[285] The BPWD contains an express statement that the tasks specified in the classifications are indicative of the duties to be performed by Operators but do not limit the operation of the general employment condition clause. BP submits that the relevant clause is appropriate given past disputes raised by Employees that they cannot be directed to perform duties not specified in the role profiles. 371

[286] Generally, AWU argue that BP have not justified any change to the classification descriptions and responsibilities for the various classifications. 372

Role Descriptions – Operators

[287] BP opposes the Workplace Determination specifying exhaustively the duties to be performed by Operators. 373 BP submits that the AWUWD sets out the key duties to be performed by Operators and that the relevant clause seems to be modelled on the Award. BP submit that the duties specified in the Award are not listed for the purpose of stating exhaustively the tasks to be performed, but rather to provide a basis for distinguishing between different classifications to the Award.

[288] AWU submit that there is no evidence of a need to amend the descriptions of the roles and responsibilities for the various classifications concerning Operators. 374 Furthermore, AWU submit that the classification roles and responsibilities contained in the BPWD are inappropriate because they do not describe the core duties or a meaningful description of the roles, they do not describe the supervision or level of accountability required, and raise issues regarding the DSTL classification and the requirement to cover for all STL absences.375

[289] We agree with BP that the role descriptors for positions should not attempt to be exhaustive of all tasks to be performed. To do so is not in the interest of BP and will result in unnecessary rigidity and may lead to unnecessary industrial disputation. Further, we consider such an approach to be in the interests of employees in undertaking the scope of work at their level that they are qualified to undertake. Further, such an approach would require variation of the Workplace Determination should new tasks emerge.

•  Classification structures

[290] The second issue of contest between the parties relates to the classification structures concerning employees that will be included into the Workplace Determination.

[291] In relation to the Operations classification structure, both parties agree that:

•  Progression through the classification level is to be determined by BP through training, certification and appointment;

•  To achieve a higher classification level, Operators must be capable of performing all duties associated with the new position that they are being assessed on for certification and be certified. Operators must maintain unit competency within their classification level except where the Operator has been prevented from maintaining competency by BP. Employees must train to the minimum qualification of OT4;

•  OT5 classification and above is only available via BP appointment; and

•  Progression from CT1 to CT2 is via an assessment process. Failure to achieve CT2 classification within a period of two years may result in an individual reverting to their original OT classification.

[292] In relation to the Laboratory Classification Structure, both parties agree that:

•  Once the LT has demonstrated competency for the next higher classification to the satisfaction of BP, the person will be promoted. The promotion process begins on the Laboratory Technician’s initiative by requesting promotion when a self-assessment against definition has been completed; and

•  Appointment to the LT6 is by BP only.

Review of the classification levels

[293] BP’s Workplace Determination includes clauses on the review of classification levels. 376 This clause provides that changes to the classification levels will not result in a reduction to an Operator’s or Laboratory Employee’s total fixed salary provided they complete appropriate re-training within a reasonable timeframe. Moreover, the clauses provide that the Operations Technician Classification Level Structure set out is ‘subject to being reviewed and altered as required by the Company to meet operational requirements’.377 Furthermore, that the express specification is appropriate as it will supplement the operation of other proposed clauses, including clauses 7 and 27(a) of the BPWD (regarding performing of work in a fully flexible manner).378

[294] The AWUWD stipulates that there will be no change to the classification structures or shift positions for the life of the Workplace Determination, except by the agreement of all parties. 379 AWU submits that the ‘Salary Maintenance and Retraining’ clause within the AWUWD is identical to terms which the parties have previously agreed. Amongst other things, clause 28 contemplates training, responsibilities, employee classifications, earnings and wages where parties agree to changes to the classification structures or shift positions.380 Furthermore, AWU submit that there is evidence that the LCC has been working on changes to the category structure for Laboratory Technicians. Accordingly, this term will assist the parties to reach agreement in relation to proposed changes in category structure, because the issue of detriment to existing employees will not arise as a barrier to agreement.

[295] BP opposes the AWU’s proposed term that the Workplace Determination should include a term that provides that there will be no changes to the classifications structures or shift positions as set out in the relevant Schedules for the life of the Workplace Determination, except by the agreement of all the parties. 381 BP oppose this term on a number of bases, including:

•  The purpose of the specifications of tasks is not to constitute a code of the duties to be performed by the Employees but rather is to be a list of indicative duties;

•  The claimed term is likely to lead to future disputes over whether particular duties performed by employees are set out in the determination or amount to changes;

•  It is unclear who compromises the ‘parties’ that can permit changes to this term;

•  There are impracticalities that arise if one Employee alone opposes the change;

•  The claimed term may not be consistent with the operation of the Act, especially Division 7 of Part 2-4 relating to variation of enterprise agreement; and

•  During the course of the Workplace Determination, BP wishes to review the appropriateness of maintaining some classifications.

[296] The AWU seek a clause that limits changes to classification structures and shift positions for the life of the Workplace Determination except where agreed to by all parties.

[297] BP seeks slightly more flexibility as proposed by its clause 7 and clause 27 and 30.

[298] We have determined above how clause 7 is to operate. We consider that this provides protection for employees whilst providing the flexibility to BP to manage its business.

[299] For this reason, we see no purpose in including the clause proposed by the AWU. In any event we note that any major change would be subject to the consultation provisions of the Agreement.

Progression to CT1 and CT1A Classification (Operations)

[300] Currently, Operators are classified as CT1 or CT1A upon commencing their training to acquire the competencies of the CT2/CT2A classification. BP wishes to change the classification arrangements so that Operators are only classified as CT1 or CT1A after the completion of the initial base training (which takes two to twelve months to complete). 382 Further, clause 28 of the BPWD states that a CT1 classification is an employee who meets all the criteria of an OT4 ‘and has been assessed as capable of operating the control panel solo’. Clause 28 also provides that a CT1A classification is ‘As per CT1 but with an Employee who meets all criteria of an OT5’.383

[301] BP submits that it is appropriate to increase the classification of an Operator upon the attainment rather than the commencement of training. 384 Currently, BP has some employees classified as CT1 or CT1A that are undertaking (and have not completed) the initial training.385 Such employees are already paid the annualised salary for a CT1 or CT1A classification.386

[302] AWU submit that there was unchallenged evidence that these classifications involve two years of training and that employees with the CT1 and CT1A classifications can ‘run solo’ on the control panel in limited circumstances, performing all of the duties of the CT2 classification for up to 6 months, although not yet certified.

[303] BP do not want to pay a person as CT1/CT1A unless they have been certified as competent to perform the work. The AWU says that, in effect, Operators do perform the work prior to certification and should be paid.

[304] We are concerned that we do not have the information necessary to make a determination on this issue. It appears to us that matters such as access to assessment are matters beyond the control of an Operator undergoing training. That it takes 2 to 12 months to complete training does not assist.

[305] In these circumstances, there will be no change to the existing arrangement.

Removal of OT1 and OT3 Classifications (Operations)

[306] Clause 28 of the BPWD contains new proposed classifications and the clause does not contain an OT1 or OT3 classification.

[307] BP submits that:

•  The OT1 and OT3 classification is unnecessary 387;

•  Operators holding the OT1 and OT3 classifications as undertaking training for the manned positions and should only progress upon the attainment of the training. BP proposes that an Operator progress from a Trainee to the OT2 classification (upon attainment of the certification for one manned position) and progress from the OT2 classification to the OT4 classification (upon attainment of two manned positions)  388; and

•  The removal of the two classifications is directed at the payment made whilst training and will not discourage training itself. Additionally, notwithstanding the removal of the two classifications, the classification structure will still encourage the broadening of skills and promote learning 389.

[308] AWU submits that:

•  Reductions in the numbers of experienced employees on shift will extend out the time it takes to achieve progress to a higher classification level 390.

•  The OT3 classification provides value to BP because an OT3 can ‘run solo’ in a second manned position if there is another qualified person on the shift 391.

•  According to Mr Boyham, the removal of the OT1 and OT3 and CT1 classifications would reduce the encouragement of trainees to develop a broad base of operating skills 392.

[309] We accept that the OT1 and OT3 are training positions. We also acknowledge that (at the time of making final submissions) BP did not employ anyone in the OT1 or OT3 classifications. We are satisfied that the positions are not necessary and have determined that they will not be included in the Workplace Determination.

Laboratory Employees – role descriptions and progression to LT6

[310] The AWU submit that BP have not justified any change to the classification descriptions and responsibilities, and that BP’s proposed descriptions are so generalised that they lack utility. 393 They submit that the uncertainty in BP’s proposal, combined with the fact that the requirements for progression would be significantly different to the existing requirements, may result in disputation.394

[311] Regarding BP’s proposal that it can appoint LT4 classified employees to the LT6 classification, the AWU submit that BP has failed to establish that employees with LT4 experience but not LT5 experience are suitable to perform the duties of LT6. 395

[312] BP submits that this submission ignores the evidence of BP that it is not necessary to be a technical expert or to provide training to provide LT6 classification. 396 BP notes that the AWU asserts that the team leadership is not a component of the responsibilities and duties of a LT6, yet the 2014 Agreement states that a LT6 is appointed as a team leader to manage shift resources on a rostered shift.397

[313] The AWU argue that the proposed changes to classification descriptors of laboratory technicians will result in ambiguity in definitions and a structure difficult to use in practice and would not allow for an objective means of assessing skill levels. The proposal will result in significantly different progression requirements to those currently in existence.

[314] The AWU object, in particular, to the ability of BP to appoint employees at LT4 level to LT6.

[315] Under the 2014 Agreement progression is based on the attainment and demonstration of competency at a particular level. This provision is reflected at clause 30.1(a) of the draft BPWD. The AWU concerns as to progression are therefore unwarranted.

[316] The ability of BP to appoint from LT4 to LT6 is matter of management discretion. If BP is of the view that an LT4 can carry out the requirements of the LT6 position, we do not consider this a matter in which we should interfere.

Manning Issues

[317] The 2014 Agreement contains a provision recording manning numbers for Operators at the commencement of the 2014 Agreement. 398 The 2014 Agreement provides for the OCC to undertake staffing reviews and as a result of those reviews, parties can make application to vary the manning numbers.399 The AWUWD in Clause 30 specifies the minimum number of Operators at the commencement of the Workplace Determination and restricts reductions below the numbers specified in the clause unless the reduction is agreed by the OCC. Furthermore, in the proposed clause a recruitment process is triggered immediately after numbers fall below 2 or more the numbers listed in the clause.

[318] In summary, AWU support this clause because:

•  Witness evidence demonstrated that a minimum number of operators needed to be at work at any one time for the Refinery to operate safely 400;

•  Minimum numbers will ensure that arrangements about Shift Coverage and TAR resourcing will be fair and reasonable 401;

•  Reductions in the number of operators will impact on opportunities for training and progression 402 and have ramifications for TAR403;

•  Although the clause records the current number of STLs (who are not covered by the Workplace Determination), with anything less than 15 STLs, the responsibilities of STLs will permanently and consistently fall to DTSLs 404;

•  There is no evidence that the imposition of minimum numbers will impose any difficulties for BP 405.

[319] In summary, BP opposes the proposed clause in the AWUWD because:

•  BP alone should determine the minimum number of Operators, particularly given that BP alone is responsible under major hazard legislation for the safe operation of the Kwinana Refinery 406;

•  The Workplace Determination should not interfere in the way in which BP manages its business in the absence of any evidence demonstrating unfairness or reasonableness 407;

•  There is no basis in the evidence to suggest that the members of the OCC are qualified or skilled to make assessments on the minimum number of Operators required to safely operate the Kwinana Refinery 408;

•  BP has identified currently some positions that will no longer be necessary, and BP should not be precluded from removing such positions if it wishes to do so 409;

•  BP should not be precluded from reducing minimum numbers in the future, including by reliance on new technologies or in order to meet financial pressures 410;

•  This clause effectively seeks a prohibition on redundancies for positions that BP may not need 411;

•  Since 2007, the Operators Consultative Committee has not conducted staffing reviews and therefore this aspect of the clause lacks merit. 412

[320] We do not consider it appropriate to specify minimum manning levels within the Workplace Determination. Management have a responsibility to manage and meet regulatory requirements at the site. To unduly interfere in this discretion is not necessary. To the extent that BP may seek to change staffing levels during the period of operation of the Workplace Determination, these changes may be subject to consultation requirements of the Workplace Determination.

Day Team

[321] BP in their closing submissions canvassed their proposal to introduce a new role of a Day Worker working in a new Day Team. 413 BP submitted that the new role is intended to provide more support to maintenance personnel, including by increasing the continuous interaction between a particular Operator and the maintenance personnel.414 The new role will be involved in issuing permits to maintenance personnel but will not remove all of the current workload of Shiftworkers associated with issuing permits.415

[322] There was insufficient evidence available to enable the Full Bench to form a view in relation to this proposal.

Draft Determination

[323] We have issued with this decision a draft of the Workplace Determination to reflect this decision. The draft Workplace Determination will be provided to the parties together with a copy of this decision.

[324] The parties are directed to confer on the content of the draft and provide any agreed changes or comments to the Full Bench by 3 June 2020.

VICE PRESIDENT

Appearances:

Mr HJ Dixon and Mr AB Gotting of Counsel, for BP Refinery (Kwinana) Pty Ltd.
Ms R Cosentino of counsel, and Mr C Young, for the Australian Workers’ Union.

Hearing details:

5 – 13 August and 1 November
2019
Perth and Sydney

Final written submissions:

BP Refinery (Kwinana) Pty Ltd’s final submissions dated 29 October 2019.
The Australian Workers’ Union’s final submissions dated 3 September 2019.

Printed by authority of the Commonwealth Government Printer

<PR719578>

 1   All operations employees who are covered by the classifications contained in clause 60 of Schedule A to the 2014 Agreement, and all laboratory employees who are covered by the classifications contained in clause 71 of the 2014 Agreement.

 2   PR701661.

 3   PR703616.

 4   Subsection 273(3) of the Act provides that 273(2) does not apply to the determination if the Commission is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes).

 5   See paragraphs [6] to [9] of this decision.

 6   Transcript of proceedings dated 7 August 2019, PN1782; PN1819; Transcript of proceedings dated 13 August 2019, PN4142.

 7   For Operators see the 2014 Agreement, Schedule A, clause 60; For Laboratory Employees see the 2014 Agreement Schedule B, clause 71.

 8   Statement of Denise Solly dated 19 June 2019, paragraph 94. .

 9   Statement of David Plant dated 6 May 2019, paragraph 31.

 10   Statement of David Plant dated 6 May 2019, paragraph 49.

 11   Statement of David Plant dated 6 May 2019, paragraph 53.

 12   Statement of David Plant dated 6 May 2019, paragraph 60.

 13   Statement of David Plant dated 6 May 2019, paragraph 72.

 14   Transcript of proceedings dated 5 August 2019, PN683-PN684.

 15   Statement of Paul Mace dated 6 May 2019, paragraph 53.

 16   Statement of Paul Mace dated 6 May 2019, paragraph 64.

 17   Statement of Paul Mace dated 6 May 2019, paragraph 70.

 18   Statement of Paul Mace dated 6 May 2019, paragraph 73.

 19   Statement of Paul Mace dated 6 May 2019, paragraph 75.

 20   Statement of Paul Mace dated 6 May 2019, paragraph 138.

 21   Statement of Paul Mace dated 6 May 2019, paragraph 141.

 22   Statement of Paul Mace dated 6 May 2019, paragraph 146.

 23   Statement of Paul Mace dated 6 May 2019, paragraphs 161, 164.

 24   Statement of Paul Mace dated 6 May 2019, paragraph 213.

 25   Statement of Paul Mace dated 6 May 2019, paragraph 214.

 26   Statement of Paul Mace dated 22 July 2019, paragraph 25.

 27   Statement of Paul Mace dated 22 July 2019, paragraph 49.

 28   Statement of Paul Mace dated 22 July 2019, paragraph 75.

 29   Statement of Paul Mace dated 22 July 2019, paragraph 79.

 30   Statement of Paul Mace dated 22 July 2019, paragraph 81.

 31   Statement of Paul Mace dated 22 July 2019, paragraph 82.

 32   Statement of Paul Mace dated 22 July 2019, paragraph 102.

 33   Statement of Paul Mace dated 22 July 2019, paragraph 104.

 34   Statement of Paul Mace dated 22 July 2019, paragraph 128.

 35   Statement of Marina Campbell dated 9 May 2019, paragraphs 31, 33.

 36   Statement of Marina Campbell dated 9 May 2019, paragraph 53.

 37   Statement of Marina Campbell dated 9 May 2019, paragraphs 59-63.

 38   Statement of Marina Campbell dated 9 May 2019, paragraph 66; Transcript of proceedings dated 8 August 2019, PN3304.

 39   Statement of Marina Campbell dated 9 May 2019, paragraph 67.

 40   Statement of Marina Campbell dated 9 May 2019, paragraph 78.

 41   Statement of Marina Campbell dated 9 May 2019, paragraph 80.

 42   Statement of Marina Campbell dated 9 May 2019, paragraph 91, 92.

 43   Statement of Marina Campbell dated 9 May 2019, paragraphs 117, 119.

 44   Statement of Marina Campbell dated 9 May 2019, paragraph 121.

 45   Statement of Marina Campbell dated 9 May 2019, paragraph 150.

 46   Statement of Marina Campbell dated 9 May 2019, paragraph 154.

 47   Statement of Marina Campbell dated 9 May 2019, paragraph 158.

 48   Statement of Marina Campbell dated 9 May 2019, paragraph 159.

 49   Statement of Marina Campbell dated 9 May 2019, paragraphs 160-162.

 50   Statement of Marina Campbell dated 9 May 2019, paragraph 193.

 51   Statement of Marina Campbell dated 9 May 2019, paragraph 206.

 52   Statement of Marina Campbell dated 9 May 2019, paragraph 208.

 53   Statement of Marina Campbell dated 9 May 2019, paragraph 225.

 54   Statement of Marina Campbell dated 9 May 2019, paragraph 232.

 55   Statement of Marina Campbell dated 9 May 2019, paragraph 236.

 56   Statement of Marina Campbell dated 9 May 2019, paragraph 267.

 57   Statement of Marina Campbell dated 9 May 2019, paragraph 284.

 58   Statement of Marina Campbell dated 9 May 2019, paragraph 321.

 59   Statement of Marina Campbell dated 9 May 2019, paragraphs 325, 332.

 60   Statement of Marina Campbell dated 9 May 2019, paragraph 345.

 61   Statement of Marina Campbell dated 9 May 2019, paragraphs 363, 364.

 62   Statement of Marina Campbell dated 23 July 2019, paragraph 8.

 63   Statement of Marina Campbell dated 23 July 2019, paragraph 49.

 64   Statement of Marina Campbell dated 23 July 2019, paragraph 99.

 65   Transcript of proceedings dated 6 August 2019.

 66   Statement of Robert Bimrose dated 6 May 2019, paragraph 13.

 67   Statement of Robert Bimrose dated 6 May 2019 paragraph 16.

 68   Statement of Robert Bimrose dated 6 May 2019 paragraph 18.

 69   Statement of Robert Bimrose dated 6 May 2019 paragraphs 19 – 20.

 70   Statement of Robert Bimrose dated 6 May 2019, paragraph 31.

 71   Statement of Robert Bimrose dated 6 May 2019, paragraph 32.

 72   Statement of Robert Bimrose dated 6 May 2019, paragraph 34.

 73   Statement of Robert Bimrose dated 6 May 2019, paragraph 39.

 74   Statement of Robert Bimrose dated 6 May 2019, paragraph 44.

 75   Statement of Robert Bimrose dated 6 May 2019, paragraphs 47, 49.

 76   Statement of Robert Bimrose dated 6 May 2019, paragraph 51.

 77   Statement of Robert Bimrose dated 6 May 2019, paragraph 62.

 78   Statement of Robert Bimrose dated 6 May 2019, paragraph 82.

 79   Statement of Robert Bimrose dated 6 May 2019, paragraph 89.

 80   Statement of Robert Bimrose dated 6 May 2019, paragraph 102.

 81   Statement of Robert Bimrose dated 6 May 2019, paragraph 103.

 82   Statement of Robert Bimrose dated 6 May 2019, paragraph 110.

 83   Statement of Robert Bimrose dated 6 May 2019, annexure RAB-1.

 84   Statement of Robert Bimrose dated 22 July 2019, paragraph 93.

 85   Statement of Robert Bimrose dated 22 July 2019, paragraph 14(a).

 86   Statement of Robert Bimrose dated 22 July 2019, paragraph 35.

 87   Statement of Robert Bimrose dated 22 July 2019, paragraph 43.

 88   Statement of Robert Bimrose dated 22 July 2019, paragraph 52.

 89   Statement of Robert Bimrose dated 22 July 2019, paragraph 63.

 90   Statement of Robert Bimrose dated 22 July 2019, paragraph 94.

 91   Statement of Paul Alford dated 6 May 2019, paragraph 26.

 92   Statement of Paul Alford dated 6 May 2019, paragraph 27.

 93   Statement of Paul Alford dated 6 May 2019, paragraph 28.

 94   Statement of Paul Alford dated 6 May 2019, paragraphs 34, 35.

 95   Statement of Paul Alford dated 6 May 2019, paragraph 35.

 96   Statement of Paul Alford dated 6 May 2019, paragraph 43.

 97   Statement of Paul Alford dated 6 May 2019, paragraph 45.

 98   Statement of Paul Alford dated 6 May 2019, paragraph 45.

 99   Statement of Paul Alford dated 6 May 2019, paragraph 53.

 100   Statement of Paul Alford dated 6 May 2019, paragraph 59.

 101   Statement of Paul Alford dated 6 May 2019, paragraph 63.

 102   Statement of Paul Alford dated 6 May 2019, paragraph 80.

 103   Statement of Paul Alford dated 6 May 2019, paragraph 83.

 104   Statement of Paul Alford dated 6 May 2019, paragraph 97.

 105   Statement of Paul Alford dated 6 May 2019, paragraph 109.

 106   Statement of Paul Alford dated 6 May 2019, paragraph 116.

 107   Statement of Paul Alford dated 6 May 2019, paragraphs 117, 118.

 108   Statement of Paul Alford dated 6 May 2019, paragraph 120.

 109   Statement of Paul Alford dated 6 May 2019, paragraph 124.

 110   Statement of Paul Alford dated 6 May 2019, paragraph 129.

 111   Statement of Paul Alford dated 6 May 2019, paragraph 133.

 112   Statement of Paul Alford dated 11 July 2019, paragraph 6.

 113   Statement of Paul Alford dated 11 July 2019, paragraph 14.

 114   Statement of Paul Alford dated 11 July 2019, paragraph 16.

 115   Statement of Paul Alford dated 11 July 2019, paragraph 18(c).

 116   Statement of Paul Alford dated 11 July 2019, paragraph 32.

 117   Statement of Paul Alford dated 11 July 2019, paragraph 32.

 118   Statement of Paul Alford dated 11 July 2019, paragraph 35.

 119   Statement of Paul Alford dated 11 July 2019, paragraph 45.

 120   Statement of Paul Alford dated 11 July 2019, paragraph 57.

 121   Statement of Gregory Power dated 6 May 2019, appendix 2, table 1, item 15, table 2, item 16.

 122   Statement of Robert Boyham dated 17 June 2019, paragraph 19.

 123   Statement of Robert Boyham dated 17 June 2019, paragraph 22.

 124   Statement of Robert Boyham dated 17 June 2019, paragraph 25.

 125   Statement of Robert Boyham dated 17 June 2019, paragraph 28.

 126   Statement of Robert Boyham dated 17 June 2019, paragraphs 41, 44.

 127   Statement of Robert Boyham dated 17 June 2019, paragraph 45.

 128   Statement of Clint Brenchley dated 14 May 2019, paragraphs 11-12.

 129   Statement of Clint Brenchley dated 14 May 2019, paragraph 15.

 130   Statement of Clint Brenchley dated 14 May 2019, paragraphs 21, 23.

 131   Statement of Clint Brenchley dated 14 May 2019, paragraphs 35, 38.

 132   Statement of Jeremy Butson dated 17 June 2019, paragraph 30.

 133   Statement of Jeremy Butson dated 17 June 2019, paragraph 32.

 134   Statement of Gregg Cary dated 18 June 2019, paragraph 34.

 135   Statement of Christopher Craig dated 17 June 2019, paragraphs 7-8.

 136   Statement of Christopher Craig dated 17 June 2019, paragraph 10.

 137   Statement of Christopher Craig dated 17 June 2019, paragraph 13.

 138   Statement of Christopher Craig dated 17 June 2019, paragraph 16.

 139   Statement of Christopher Craig dated 17 June 2019, paragraph 17.

 140   Statement of Christopher Craig dated 17 June 2019, paragraph 21.

 141   Statement of Jarrad Cullen dated 17 June 2019, paragraph 6.

 142   Statement of Jarrad Cullen dated 17 June 2019, paragraph 9.

 143   Statement of Jarrad Cullen dated 17 June 2019, paragraph 10.

 144   Statement of Scott Dean dated 17 June 2019, paragraph 11.

 145   Statement of Scott Dean dated 17 June 2019, paragraph 15.

 146   Statement of Martin Donnelly dated 17 June 2019, paragraphs 15, 16.

 147   Statement of Martin Donnelly dated 17 June 2019, paragraph 18.

 148   Statement of Martin Donnelly dated 17 June 2019, paragraph 19.

 149   Statement of Tegan Duffy dated 17 June 2019, paragraph 5.

 150   Statement of Tegan Duffy dated 17 June 2019, paragraph 10.

 151   Statement of Tegan Duffy dated 17 June 2019, paragraph 12.

 152   Statement of Jeremy Durack dated 17 June 2019, paragraph 7.

 153   Statement of Jeremy Durack dated 17 June 2019, paragraph 8.

 154   Statement of Jeremy Durack dated 17 June 2019, paragraph 9.

 155   Statement of Mark Ellis dated 18 June 2019, paragraph 9.

 156   Statement of Mark Ellis dated 18 June 2019, paragraph 12.

 157   Statement of Haile Gebrezgabher dated 17 June 2019, paragraph 4.

 158   Statement of Haile Gebrezgabher dated 17 June 2019, paragraph 5.

 159   Statement of Neil Glanz dated 17 June 2019, paragraph 9.

 160   Statement of Neil Glanz dated 17 June 2019, paragraph 10.

 161   Statement of Neil Glanz dated 17 June 2019, paragraph 13.

 162   Statement of Neil Glanz dated 17 June 2019, paragraphs 16-17.

 163   Statement of Neil Glanz dated 17 June 2019, paragraph 22.

 164   Statement of Neil Glanz dated 17 June 2019, paragraph 25.

 165   Statement of Blair Leafe dated 17 June 2019, paragraph 10.

 166   Statement of Blair Leafe dated 17 June 2019, paragraph 18.

 167   Statement of Blair Leafe dated 17 June 2019, paragraph 20.

 168   Statement of Ryszard Majewski dated 17 June 2019, paragraph 4.

 169   Statement of Ryszard Majewski dated 17 June 2019, paragraph 7.

 170   Statement of Tammy McNabb dated 17 June 2019, paragraph 5.

 171   Statement of Tammy McNabb dated 17 June 2019, paragraph 6.

 172   Statement of Tammy McNabb dated 17 June 2019, paragraph 7.

 173   Statement of Brian Meharry dated 19 June 2019, paragraph 4.

 174   Statement of Brian Morris dated 17 June 2019; Transcript of proceedings dated 8 August 2019.

 175   Statement of Brian Morris dated 17 June 2019, exhibit 6 paragraph 16.

 176   Statement of Brian Morris dated 17 June 2019, paragraphs 52-54.

 177   Statement of Brian Morris dated 17 June 2019, paragraph 55.

 178   Statement of Brian Morris dated 17 June 2019, paragraphs 9, 11.

 179   Statement of Brian Morris dated 17 June 2019, paragraph 12.

 180   Statement of Brian Morris dated 17 June 2019, paragraph 21.

 181   Statement of Brian Morris dated 17 June 2019, paragraph 22.

 182   Statement of Clayton Phillips dated 17 June 2019, paragraphs 5-6.

 183   Statement of Clayton Phillips dated 17 June 2019, paragraph 8.

 184   Statement of Clayton Phillips dated 17 June 2019, paragraph 9.

 185   Statement of Clayton Phillips dated 17 June 2019, paragraph 11.

 186   Statement of Clayton Phillips dated 17 June 2019, paragraph 13.

 187   Statement of Jenna Shemeld dated 15 June 2019, paragraph 8.

 188   Statement of Jenna Shemeld dated 15 June 2019, paragraph 13.

 189   Statement of Jenna Shemeld dated 15 June 2019, paragraph 16.

 190   Statement of Jenna Shemeld dated 15 June 2019, paragraph 17.

 191   Statement of Jenna Shemeld dated 15 June 2019, paragraphs 26-33.

 192   Statement of Rene Sladky dated 17 June 2019, paragraph 6.

 193   Statement of Rene Sladky dated 17 June 2019, paragraphs 16 – 17.

 194   Statement of Rene Sladky dated 17 June 2019, paragraphs 27-28.

 195   Statement of Dean Strauch dated 10 June 2019, paragraph 8.

 196   Statement of Kylie Taylor dated 17 June 2019, paragraphs 21-22.

 197   Statement of Kylie Taylor dated 17 June 2019, paragraph 33.

 198   Statement of Katie Wagner dated 16 June 2019, paragraph 9.

 199   Statement of Katie Wagner dated 16 June 2019, paragraph 10.

 200   Statement of Katie Wagner dated 16 June 2019, paragraph 13.

 201   Statement of Clive Hacking dated 19 June 2019, paragraph 45.

 202   Statement of Clive Hacking dated 19 June 2019, paragraphs 49-50

 203   Statement of Clive Hacking dated 19 June 2019, paragraph 52.

 204   Statement of Clive Hacking dated 19 June 2019, paragraphs 59, 63.

 205   Statement of Clive Hacking dated 19 June 2019, paragraphs 66, 71

 206   Statement of Clive Hacking dated 19 June 2019, paragraph 79.

 207   Statement of Clive Hacking dated 19 June 2019, paragraph 83.

 208   Statement of Clive Hacking dated 19 June 2019, paragraph 91.

 209   Statement of Clive Hacking dated 19 June 2019, paragraph 95.

 210   Statement of Clive Hacking dated 19 June 2019, paragraph 97.

 211   Statement of Clive Hacking dated 19 June 2019, paragraph 104.

 212   Statement of Clive Hacking dated 19 June 2019, paragraphs 105, 107-108.

 213   Statement of Clive Hacking dated 19 June 2019, paragraphs 109-110.

 214   Statement of Clive Hacking dated 19 June 2019, paragraphs 118-120.

 215   Statement of Clive Hacking dated 19 June 2019, paragraph 123.

 216   Transcript of proceedings dated 13 August 2019.

 217   Statement of Denise Solly dated 19 June 2019, paragraphs 21-22.

 218   Statement of Denise Solly dated 19 June 2019, paragraph 35.

 219   Statement of Denise Solly dated 19 June 2019, paragraph 60.

 220   Statement of Denise Solly dated 19 June 2019, paragraph 71.

 221   Statement of Denise Solly dated 19 June 2019, paragraph 74.

 222   Statement of Denise Solly dated 19 June 2019, paragraphs 79-80.

 223   Statement of Denise Solly dated 19 June 2019, paragraphs 81-82.

 224   Statement of Denise Solly dated 19 June 2019, paragraphs 83-84.

 225   Statement of Denise Solly dated 19 June 2019, paragraph 88.

 226   Statement of Denise Solly dated 19 June 2019, paragraph 89.

 227   Statement of Denise Solly dated 19 June 2019, paragraph 109.

 228   Statement of Denise Solly dated 19 June 2019, paragraph 148.

 229   Statement of Denise Solly dated 19 June 2019, paragraph 162.

 230   Statement of Denise Solly dated 19 June 2019, paragraph 163.

 231   Statement of Denise Solly dated 19 June 2019, paragraph 166.

 232   Statement of Denise Solly dated 19 June 2019, paragraph 167.

 233   Statement of Denise Solly dated 19 June 2019, paragraph 174.

 234   Statement of Denise Solly dated 19 June 2019, paragraph 179.

 235   Statement of Denise Solly dated 19 June 2019, paragraphs 182-185.

 236   Statement of Denise Solly dated 19 June 2019, paragraphs 186-187.

 237   Statement of Denise Solly dated 19 June 2019, paragraphs 189-190.

 238   Statement of Denise Solly dated 19 June 2019, paragraph 201-202.

 239   Statement of Denise Solly dated 19 June 2019, paragraphs 221-222.

 240   Statement of Denise Solly dated 19 June 2019, paragraphs 223-225.

 241   Statement of Denise Solly dated 19 June 2019, paragraphs 232-234.

 242   Transcript of proceedings dated 13 August 2019.

 243   Statement of Troy Irwin dated 17 June 2019, paragraph 39.

 244   Statement of Troy Irwin dated 17 June 2019, paragraph 140.1

 245   Statement of Troy Irwin dated 17 June 2019, paragraph 181.

 246   Statement of Troy Irwin dated 17 June 2019, paragraph 184.

 247   Statement of Troy Irwin dated 17 June 2019, paragraph 200.

 248   Statement of Troy Irwin dated 17 June 2019, paragraph 200.

 249   Statement of Troy Irwin dated 17 June 2019, paragraph 207.

 250   Statement of Troy Irwin dated 17 June 2019, paragraph 213.

 251   Statement of Troy Irwin dated 17 June 2019, paragraph 227.

 252   Statement of Troy Irwin dated 17 June 2019, paragraph 236.

 253   Statement of Troy Irwin dated 17 June 2019, paragraph 256.

 254   Statement of Troy Irwin dated 17 June 2019, paragraphs 268, 270.

 255   Statement of Troy Irwin dated 17 June 2019, paragraph 285.

 256   Statement of Troy Irwin dated 17 June 2019, paragraph 290.

 257   Statement of Troy Irwin dated 17 June 2019, paragraph 300.

 258   Re Specialist Diagnostic Services Pty Limited Workplace Determination [2018] FWCFB 5778 at [74] per Hatcher VP, Clancy DP, Cirkovic C; see also Essential Energy Workplace Determination [2016] FWCFB 7641 at [44]-[57] per Hatcher VP, Sams DP, Spencer C).

 259   Parks Victoria v The Australian Workers' Union and others [2013] FWCFB 950 at [49]-[50]; O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Randall v Australian Taxation Office (2010) 198 IR 114 at [11].

 260   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [23]; See also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 at [129]-[131].

 261   Re Specialist Diagnostic Services Pty Limited Workplace Determination [2018] FWCFB 5778 at [77] per Hatcher VP, Clancy DP, Cirkovic C).

 262   [2012] FWAFB 7858.

 263   Re Commonwealth of Australia [2019] FWCFB 143 at [28] (per Catanzariti VP, Kovacic DP, Johns C).

 264   Essential Energy Workplace Determination [2016] FWCFB 7641 at [71]-[73] (per Hatcher VP, Sams DP, Spencer C).

 265   See XPT case.

 266   BPWD clause 11.

 267   BPWD clause 29.

 268   BPWD clause 31.

 269   Statement of Robert Bimrose dated 6 May 2019, paragraph 55, PN2220.

 270   Statement of Robert Bimrose dated 22 July 2019, paragraph 37. Transcript of proceedings dated 6 August, PN1155.

 271   AWU submissions dated 3 September 2019 [167].

 272   AWU submissions dated 3 September 2019 [168].

 273   BPWD clause 11(c).

 274   AWUWD clause 11.2.

 275   Tomato Exchange Pty Ltd as trustee for the Tomato Exchange Unit Trust T/A Tomato Exchange Pty Ltd [2017] FWC 1170 at [5].

 276   See paragraph [95] of this decision.

 277   BP’s ‘Retrenchment Policy’ effective 1 April 2018.

 278   BP’s submissions dated 3 September 2019 [493].

 279   The AWU refer to the Statement of Troy Irwin dated 17 June 2019, paragraph 192 which states that his personal leave is currently accrued at 80 hours per year of employment.

 280   BP submissions dated 3 September 2019 [425].

 281   BP submissions dated 3 September 2019 [619].

 282   AWU submissions dated 3 September 2019 [225].

 283   AWU submissions dated 3 September 2019 [226].

 284   AWU submissions dated 3 September 2019 [227].

 285   2014 Agreement clause 67.

 286   2014 Agreement clause 68.

 287   AWU submissions dated 3 September 2019 [ 27]; Statement of Troy Irwin dated 17 June 2019, exhibit 34 paragraph 199.

 288   BP submissions dated 3 September [134].

 289   BP submissions dated 3 September 2019 [100].

 290   AWU submissions date 3 September 2019 [151].

 291   AWU submissions date 3 September 2019 [152].

 292   BP submissions dated 3 September 2019 [360].

 293   BP submissions dated 3 September 2019 [360].

 294   BP submissions dated 3 September 2019 [361].

 295   AWU submissions dated 3 September 2019 [146].

 296   AWU submissions dated 3 September 2019 [151].

 297   BPWD clause 26(c).

 298   BPWD clauses 26(d), 26(e).

 299   BPWD clause 26(g).

 300   BPWD clause 26(i).

 301   BPWD clause 26(j).

 302   BP submissions dated 3 September 2019 [363].

 303   BP submissions dated 3 September 2019 [363].

 304   BP submissions dated 3 September 2019 [363].

 305   BP submissions dated 3 September 2019 [363].

 306   BP submissions dated 3 September 2019 [363].

 307   BP submissions dated 3 September 2019 [364].

 308   AWUWD clause 9.2.

 309   BP submissions dated 3 September 2019 [370].

 310   BP submissions dated 29 October 2019 [79].

 311   BP submissions dated 3 September 2019 [304] - [305].

 312   AWU submissions dated 3 September 2019 [26].

 313   BP submissions dated 29 October 2019 [23].

 314   BPWD clause 8.6(g).

 315   BPWD clause 8.6(h).

 316   BP WD clause 8.6(j).

 317   BP submissions dated 3 September 2019 [320].

 318   BP submissions dated 3 September 2019 [322].

 319   AWU submissions dated 3 September 2019 [52].

 320   AWU submissions dated 3 September 2019 [54], [85].

 321   AWU submissions dated 3 September 2019 [55].

 322   AWU submissions dated 3 September 2019 [86].

 323   AWU submissions dated 3 September 2019 [83].

 324   AWU submissions dated 3 September 2019 [84].

 325   AWU submissions dated 3 September 2019 [85].

 326   BP submissions dated 29 October 2019 [57].

 327   BPWD clause 8.7(a).

 328   BPWD clause 8.7(b).

 329   BPWD clause 8.7(c)

 330   BPWD clause 8.7(d).

 331   BP submissions dated 3 September 2019 [327].

 332   BP submissions dated 3 September 2019 [330], [332].

 333   AWU submissions dated 3 September 2019 [57].

 334   BP submissions dated 29 October 2019 [57].

 335   AWUWD clause 8.6.

 336   BPWD clause 8.6(f).

 337   See paragraph [88] of this decision.

 338   BP submissions dated 3 September 2019 [172].

 339   BP submissions dated 3 September 2019 [173].

 340   BP submissions dated 3 September 2019 [174].

 341   BP submissions dated 3 September 2019 [179].

 342   BP submissions dated 3 September 2019 [180].

 343   BP submissions dated 3 September 2019 [166].

 344   BP submissions dated 3 September 2019 [154].

 345   BPWD clause 8.8.1(b).

 346   BPWD clause 8.8.1(d).

 347   BPWD clause 8.8.2(b).

 348   AWU submissions dated 3 September 2019 [132].

 349   AWU submissions dated 3 September 2019 [136].

 350   AWU submissions dated 3 September 2019 [133].

 351   AWU submissions dated 3 September 2019 [134].

 352   AWU submissions dated 3 September 2019 [139].

 353   BP submissions dated 29 October 2019 [70].

 354   BP submissions dated 29 October 2019 [71].

 355   BP submissions dated 29 October 2019 [72].

 356   AWUWD clause 10.2.4(g).

 357   AWU submissions dated 3 September 2019 [137].

 358   AWUWD clauses 10.2.4(h), 10.2.5(f).

 359   AWU submissions dated 3 September 2019 [163].

 360   BP submissions dated 3 September 2019 [350].

 361   BP submissions dated 29 October 2019 [83(a)].

 362   BP submissions dated 29 October 2019 [83(c)].

 363   BP submissions dated 3 September 2019 [351].

 364   AWUWD clause 10.2.6.

 365   AWUWD clause 8.3(c).

 366   AWU submissions dated 3 October 2019 [20].

 367   AWU submissions dated 3 October 2019 [21].

 368   BP submissions dated 29 October 2019 [19].

 369   BP submissions dated 29 October 2019 [20].

 370   BP submissions dated 3 September 2019 [604].

 371   BP submissions dated 3 September 2019 [504].

 372   AWU submissions dated 3 September 2019 [272], [281].

 373   BP submissions dated 3 September 2019 [525].

 374   AWU submissions dated 3 September 2019 [272].

 375   AWU submissions dated 3 September 2019 [277].

 376   BPWD clauses 27.3 and 30.3.

 377   BPWD clauses 27.3 and 30.3.

 378   BP submissions dated 3 September 2019 [537].

 379   AWUWD clause 28(a).

 380   AWUWD clause 28(b)(III).

 381   BP submissions dated 3 September 2019 [538].

 382   BP submissions dated 3 September 2019 [509].

 383   BP submissions dated 3 September 2019 [510].

 384   BP submissions dated 3 September 2019 [511].

 385   BP submissions dated 3 September 2019 [512].

 386   BP submissions dated 3 September 2019 [512].

 387   BP submissions dated 3 September 2019 [518].

 388   BP submissions dated 3 September 2019 [517].

 389   BP submissions dated 3 September 2019 [521].

 390   AWU submissions dated 3 September 2019 [269].

 391   AWU submissions dated 3 September 2019 [270].

 392   AWU submissions dated 3 September 2019 [271].

 393   AWU submissions dated 3 September 2019 [281].

 394   AWU submissions dated 3 September 2019 [282].

 395   AWU submissions dated 3 September 2019 [284].

 396   BP submissions dated 29 October 2019 [126].

 397   BP submissions dated 29 October 2019 [127].

 398   2014 Agreement clause 58.1.

 399   2014 Agreement clause 58.2.

 400   AWU submissions dated 3 September 2019 [247].

 401   AWU submissions dated 3 September 2019 [250].

 402   AWU submissions dated 3 September 2019 [253].

 403   AWU submissions dated 3 September 2019 [254].

 404   AWU submissions dated 3 September 2019 [255].

 405   AWU submissions dated 3 September 2019 [257].

 406   BP submissions dated 3 September 2019 [531].

 407   BP submissions dated 3 September 2019 [531].

 408   BP submissions dated 3 September 2019 [531].

 409   BP submissions dated 3 September 2019 [531].

 410   BP submissions dated 3 September 2019 [531].

 411   BP submissions dated 3 September 2019 [533].

 412   BP submissions dated 3 September 2019 [534].

 413   BP submissions dated 3 September 2019 [635].

 414   BP submissions dated 3 September 2019 [635].

 415   BP submissions dated 3 September 2019 [635].