| [2022] FWC 1343 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236—Majority support determination
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
BHP Billiton Nickel West Pty Ltd T/A Nickel West Kalgoorlie
(B2022/82)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 29 JULY 2022 |
Majority support determination – veracity of petition – fairly chosen – whether organisationally distinct
[1] On 16 February 2022, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) made an application under s 236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination (MSD) in relation to a proposed enterprise agreement for a group of employees of BHP Billiton Nickel West Pty Ltd (the Respondent).
[2] On 17 March 2022, an amended application was submitted to the Commission. The amended application is the application referred to hereafter.
[3] The Respondent is a nickel producer with various sites and operations across Western Australia. 1 It operates two assets in the Kalgoorlie - Boulder area of Western Australia as part of its production process. Those assets are the Kalgoorlie Nickel Smelter (Smelter) and the Kambalda Nickel Concentrator Plant (Concentrator).2
[4] Its production operation involves the extraction, concentration and smelting of nickel sulphide ore. 3 The resulting product is exported to Nickel West’s global customers in the form of nickel matte or nickel metal.4
[5] The application is made in relation to the ‘mechanical and maintenance employees, including apprentices, employed at the Smelter’ (the Group or Maintenance Employees). The AMWU clarified that the Maintenance Employees were those employees who under the BHP Billiton Nickel West Kalgoorlie and Kambalda Safety Net Agreement 2012 (2012 Agreement) 5 were referred to as: ‘Maintenance Technician – Mechanical’, ‘Maintenance Technicians – Electrical’, ‘Maintenance Technician – General’ and ‘Apprentice’. The Respondent submits that as of 18 May 2022, there were around 300 employees employed by the Respondent at the Smelter.6 Of those 300 employees, around 100 were based in the Maintenance Department with the remainder being based in processing and production operations (Production Employees) or involved in administration in the onsite administration buildings.
[6] During the period of December 2021 and January 2022, the AMWU furnished a petition to Maintenance Employees at a series of right of entries at the Smelter, and at one meeting at the Dome Café in Kalgoorlie. Through that process, 33 out of 51 Maintenance Employees signed the petition, forming a majority of 64.71%. The Respondent has objected to the Commission making the determination sought for various reasons. These reasons include that the Commission cannot be satisfied that a majority of employees want to bargain, that the Group was fairly chosen, and it is reasonable in all the circumstances to make the MSD.
[7] The first question is whether the Commission can be satisfied that a majority of the employees who were employed by the employer at the time determined by the Commission and who would be covered by the agreement wanted to bargain. In response to that question, I have concluded the answer is yes.
[8] The second question is whether the Commission be satisfied that the group of employees who will be covered by the agreement was fairly chosen, taking into account whether the group was geographically, operationally or organisationally distinct. In response to that question, I have concluded no – the Group was not fairly chosen.
[9] And finally, can the Commission be satisfied that it is reasonable in all the circumstances to make the MSD. On the basis of the material before me and taking into account the evidence, submissions and conclusions reached in relation to ss 237(2)(a) to (c), on balance I do not consider it reasonable in all the circumstances to make the determination sought.
[10] Briefly stated, a majority of the Group wish to bargain and yet that Group has not been fairly chosen. Further, the existing industrial arrangements have been in place for some time and to an extent reflect the interdependence exhibited regarding the interaction of Production Employees with Maintenance Employees at the Smelter. For these reasons, I do not consider it reasonable in all the circumstances to make the determination sought. 7
[11] My reasons follow starting with the consideration of the statutory framework, which may at times compel a recalcitrant employer to the bargaining table – but on this occasion has not.
1.1 Statutory framework
[12] The relevant statutory requirements for the Commission to make a MSD are set out in ss 236 and 237 of the Act. Section 236(1) of the Act prescribes that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a MSD. When determining whether to grant the MSD, s 237(2) details four circumstances to which I must have regard. Briefly stated, they include whether:
a) a majority of the employees who are employed by the Respondent and who will be covered by the proposed agreement, want to bargain;
b) the Respondent has not yet agreed to bargain or initiated bargaining;
c) the group of employees who will be covered by the agreement was fairly chosen; and
d) it is reasonable in all of the circumstances to make the determination.
[13] The 2012 Agreement currently covers support technician workers, Production Employees and Maintenance Employees. However, the AMWU is seeking a MSD for a proposed agreement at the Smelter with only Maintenance Employees, which is narrower in scope than the 2012 Agreement. The Maintenance Employees are considered ‘national system employees’ for the purpose of the Act (see s 13 of the Act). Furthermore, it is uncontroversial that the AMWU is a bargaining representative of one or more of the employees in that Group. 8
[14] It is accepted that the Respondent has not agreed to bargain, 9 and in addition, has objected to the application on the basis that the evidence provided by the AMWU is insufficient for the Commission to be satisfied that:
a) the Group who would be covered by the proposed agreement is specified, as required s 236(2) of the Act;
b) a majority of employees who would be covered by the proposed agreement want to bargain, as required by s 237(2)(a) of the Act;
c) the Group who would be covered by the proposed agreement were fairly chosen, as required by s 237(2)(c) of the Act;
d) it is reasonable in all the circumstances to make the MSD, as required by s 237(2)(d) of the Act.
1.2 Procedural matters
[15] On receipt of the application, and following a conference with the parties, directions were issued by Chambers on 10 March 2022. Those directions included:
• The Applicant provide its un-redacted copies of petitions and a list of signatories to the Commission on a confidential basis by 16:00hrs (AWST), Thursday, 17 March 2022.
• The Respondent provide a list of employees to the Commission on a confidential basis, who were employed as of (a) 5 December 2021 until 10 February 2022 (noting position/classification, commencement date and termination date where relevant); and (b) 5 December 2021 until the date the application was made (noting position/classification, commencement date and termination date where relevant), by 16:00hrs (AWST), Thursday, 17 March 2022.
[16] On receipt of the Respondent’s request for an extension of time in which to provide a list of employees, the following directions were issued on 14 March 2022:
Dear Parties
We refer to the Respondent’s attached email dated Friday, 11 March 2022.
The Deputy President grants the extension for the list of employees to be provided by 16:00hrs (AWST), 24 March 2022.
Regarding the third direction, given both parties were privy to the conference the Deputy President considers that both understood that the list of employees would be those covered by the proposed agreement. At no time was there discussion that the proposed agreement would cover all of Nickel West’s employees. The direction provided is to be considered in light of that context as are the other directions. However, if the Respondent is unclear as to that context a further conference can be convened if the Deputy President deems it necessary.
Kind regards
[17] Following receipt of the ‘employee list’ and unredacted petitions, the following direction issued on 7 April 2022:
Dear Parties
We refer to the abovementioned matter and the materials filed by the parties – namely the unredacted petitions and an employee list.
We have established an excel spreadsheet which sets out following headers:
Redacted, Number, Name, Classification, Employment, Petition, Signature Provided, Date of signature.
Please note that ‘Employment’ refers to the employee being employed at the time the petition was signed.
‘Classifications’ have been derived from the materials filed.
We trust the remaining headers on the spreadsheet are self-explanatory.
The Deputy President intends to provide this spreadsheet to the parties with the names redacted. Should either party oppose this course you are to inform Chambers by 17:00hrs (AWST) on Friday, 8 April 2022, with reasons.
If either party intends to file a Form F52 they are directed to provide such by 17:00hrs (AWST) on Tuesday, 19 April 2022.
[18] On 13 April 2022 the parties were sent an excel spreadsheet with information removed that would otherwise identify individual employees, but nevertheless showed a cross reference between petitions received and the employee list, and the number that had voted in favour of a MSD. A majority of the Maintenance Employees had voted in favour of bargaining for an enterprise agreement.
[19] It is useful at the outset to provide the context regarding the operations, organisation, and location of the Respondent, in addition to outlining the AMWU’s process of obtaining evidence in support of its application.
2.1 Nickel West sites in the Kalgoorlie-Boulder region and their interaction
[20] The Smelter and Concentrator are said to be around 40km apart and are connected by public roads and a shared public rail line, that runs from Kalgoorlie to Esperance. 10 The rail connection is used to transport concentrate from the Concentrator to the Smelter.11
[21] In the past, the Respondent combined the operations at the Smelter and Concentrator under the one management structure. This was primarily due to the geographical proximity of the two. 12 From a management perspective, the sites have utilised the same General Manger from around 2010 until things change around 18 months ago, at which time the Concentrator and Smelter were operationally split, with the Concentrator coming under the General Manager of Concentrators.13
[22] The Respondent also operates two northern concentrators in conjunction with its mining operations at Mount Keith Leinster and Cliffs, Western Australia. The concentrate from these locations is trucked to Leonora and transported from there to the Smelter by rail, where it is blended with concentrate from the Concentrator at Kambalda. 14
[23] The Respondent notes that the operations at the Concentrator and Smelter share the same goal, 15 with the supply chain having been designed to maximise the grade of nickel extracted and processed during the operation.16
[24] The Smelter and the Concentrator comprise part of a supply chain for nickel production, which includes:
a) the extracted ore being sent to one of the Respondent’s concentrators to be crushed, milled down, floated, extracted and then dried – typically increasing grade from 0.5 -3% to around 12-15%; 17
b) public rail infrastructure being used to transport concentrate from the Concentrator to the Smelter; 18
c) the Smelter, where concentrate is flash smelted in a bath of molten metal at 1,300 degrees Celsius, which typically increases the grade of the nickel to around 70%; 19 and
d) rail infrastructure from Kalgoorlie to Kwinana, which is used to transport nickel matte and metal from the Smelter to the Kwinana Refinery and then to Fremantle Port. 20 From there, nickel metal and matte is shipped to the Respondent’s clients around the world.21
[25] Mr Uebergang, Manager – Maintenance Work for Nickel West Kalgoorlie, stated that the Smelter and the Concentrator employ the same type of roles (that is, operators and maintainers), and over the years people in these roles had transferred between both sites for various reasons. 22
[26] Expanding upon the latter point, Mr Uebergang referred to employees based at the Smelter working, on occasion, at the Concentrator and vice versa. 23 Mr Uebergang also referred to the opportunity to share loader operators between the Smelter and the Concentrator, albeit he acknowledged that this had not yet occurred, but the possibility remained.24
[27] According to Mr Uebergang, technicians at the Smelter used areas of the Concentrator, such as the warehouses and laydown areas, to store refractory equipment. 25 Mr Uebergang also described Maintenance Employees regularly travelling to the Concentrator to collect or inspect critical items like motors and transformers (at least 2-3 times a year).
[28] The Respondent submitted that the Smelter’s Maintenance Department comprised of: (a) leadership (including Superintendents and Supervisors); (b) tradespeople; (c) contractors; (d) engineers; (e) workers in the Planning Department; (f) workers in the Reliability Department; (g) workers in the Scaffolding and the Outage Team; and (h) workers in the Asset Integrity Team.
[29] In respect of tradespeople in the Maintenance Department, they were said to fall within the following classifications: (a) Mechanical Maintenance Technicians; (b) Electrical Maintenance Technicians; (c) General Maintenance Technicians; and (d) Apprentices (again, together Maintenance Employees). 26
[30] It is uncontroversial that the Maintenance Department is organised into five on-site workshops (subject to some exceptions), namely: (a) MN01 – mobile equipment and plant; (b) MN10 – converting area and flux; (c) MN20 – services; (d) MN40 – furnace and concentrate unloading area; and (e) MN90 – site-wide electrical infrastructure. 27
[31] According to the Respondent, Maintenance Employees are required to work closely with other employees, as demonstrated by the following examples:
a) Maintenance Employees at the Smelter are not rostered to work at the Concentrator (and vice versa), 28 however they occasionally attend the Concentrator to inspect, test and collect items stored there;29
b) Maintenance Employees at the Smelter operate under the supervision of a supervisor who is responsible for their workshop. 30 Each supervisor has a range of workers in their remit, including tradespeople, planners, contractors, and (at times) Production Employees who are working with Maintenance Employees;
c) Production Employees regularly and routinely complete tasks with and alongside Maintenance Employees such as:
i. a plug and insert change and furnace tap hole maintenance;
ii. a ‘JE’ change out; and
iii. preparation for, or work relating to an outage; 31
d) Maintenance Employees and Production Employees also work to complete the Respondent’s required ‘Permit to Work’ processes. Collaboration between Maintenance Employees, Production Employees, permit issuers and permit acceptors – all of whom must walk through and review jobs together to make sure equipment is isolated correctly – occurs multiple times each day across the site; 32
e) prior to scheduled Smelter shutdowns, Production Employees are deployed into the Outage Team (a part of the Maintenance Department) to represent the furnace, converting and services areas, and to co-ordinate shutdown procedures; 33
f) not all Maintenance Department employees are physically based in a workshop. For example, the Control Systems Team, which falls within the remit of workshop MN90, is based in the site administration building. 34 The Scaffolding and Outages Team also work from the administration building;35
g) all Maintenance Employees at the Smelter work one of the following two rosters which are the same rosters used by the other employees at the Smelter: 36
i. a ‘day shift’ roster pattern of five day shifts on (Monday to Friday), and then two days off for the weekend;
ii. an ‘even time’ roster of two day shifts on, two nights shifts on, and four days off, subject to emergencies, and personal and flexible working arrangements; 37 and
h) Production Employees have been directly promoted into the Maintenance Department on more than one occasion. 38
[32] The Respondent also spoke to the degree of integration apparent across all workshops comprising the Maintenance Department, drawing upon several examples as follows:
a) each workshop supervisor reports to one of seven superintendents. 39 Each superintendent reports directly to Mr Uebergang;40
b) All Maintenance Employees are expected to work across multiple workshops where required. 41 For example, electrical Maintenance Employees may attend MN01 to engage in auto-electric and fleet maintenance work (such as jump starting a vehicle) or be allocated to an entirely different workshop according to workflow requirements or business needs;42
b) The five workshops run safety, ‘Permit to Work’, ‘Working at Heights’, Confined Space’ and other training together, 43 and some workshops share bathrooms;44
d) apprentices are rotated through different workshops to gain a breadth of experience. For example, electrical apprentices rotate through MN40 in groups of two, and mechanical apprentices rotate through all mechanical workshops. 45 Both groups also rotate through the Reliability, Planning and Control Systems teams;46
e) The Planning Department (a subset of the Maintenance Department) comprises seven planners who report to a planning superintendent. 47 Five of these planners are allocated to the workshops (one per workshop), with two rotating planners allocated as required to cover leave and other unexpected vacancies.48 The Reliability Department (another subset of the Maintenance Department) comprises a number of reliability engineers, who are distributed across workshops in a similar way.49
[33] Mr Kane Robinson, an electrician who works at the Smelter, gave evidence on behalf of the AMWU. Mr Robinson had a lengthy history with the Respondent having worked at the Smelter since March 2004, when he commenced his apprenticeship. 50 In that time he had held a variety of roles including dayshift electrician, electrical team leader, electrical supervisor and shift 1 electrician.51
[34] Mr Robinson described his usual daily activities as acting as the first response to plant electrical breakdowns, carrying out preventative maintenance work, and completing low-voltage isolations for operations to issue permits for other maintenance teams. 52 With regard to the activities of an electrical supervisor, Mr Robinson explained that the supervisor reviewed future planned maintenance tasks, engaged in personnel management, liaised with coordinators in operations regarding the availability of plant equipment, organised contractors and equipment for breakdown repairs, raised actions from subcontractor reports and managed the workshop budget.53
[35] Mr Robinson explained that due to the nature of his role, he interacted with all maintenance teams (MN01, MN10, MN20 and MN40), and to some extent with the operations, engineering and management. 54
[36] Concerning interaction with the mechanical maintenance teams, Mr Robinson said that dayshift electricians were often required to work in conjunction with mechanical maintenance teams because of having to carry out repairs on plant equipment and preventative maintenance tasks. 55
[37] Mr Robinson outlined the tasks of process operators. He noted that they ran various plant equipment, cleaned associated areas, reported faults to the maintenance team, carried out isolation of equipment for mechanical tasks, issued work permits, completed plant samples to take to labs, unloaded the train, loaded acid trucks and drove haul trucks. 56
[38] In respect to shutdowns, Mr Robinson said that the process operators were normally responsible for isolations, permitting, and gas-testing of confined spaces. 57 Some also became sentries during shutdowns given there was less work to do when the plant was offline.58
[39] Whilst the process operators assisted during shutdowns by undertaking the abovementioned tasks, Mr Robinson said that it was very rare to see process operators assisting in maintenance tasks even during shutdowns. Mr Robinson also shared that in respect of work referred to as the ‘JE’ change out process, the production operators (process operators) did not work alongside Maintenance Employees to carry out the task. 59
[40] Addressing the other teams who the Respondent had contended formed part of ‘Maintenance’, Mr Robinson observed the following:
a) Planning was a separate department from Maintenance, with its employees having different contracts than Maintenance Employees;
b) Control Systems Team members worked 38-hour weeks and had different contracts to the Maintenance Team, similar to the engineers’ contracts;
c) the vast majority of the Outages Team were contactors, who were engaged in planning, did not take part in the execution of maintenance work, and had a separate reporting structure to the Maintenance Team;
d) workers in the Scaffolding Team also included many contractors – and again had a separate reporting structure to the Maintenance Team; and
e) the Assets Integrity Team was organised separately and reported separately on the organisational chart.
[41] Mr Robinson explained that neither he nor other members of the Group considered the employees engaged in Control Systems, Scaffolding, Outage, Planning or Assets Integrity to be part of the Group – and the organisation chart reflected this. 60
[42] Regarding the reporting structure for Maintenance Employees, Mr Robinson explained that all Maintenance Employees reported into Maintenance supervisors and those supervisors reported into the superintendents of Maintenance Executions Services. 61
[43] The AMWU also presented another witness from the Group, a Mr Phillip Christian. Mr Christian works as a Maintenance Technician (Boilermaker) in the MN40 maintenance workshop at the Smelter. 62 He described this workshop as being responsible for the maintenance of the flash furnace and silos.63
[44] When speaking of his usual duties, Mr Christian outlined the following activities:
a) preventative maintenance and scheduled inspections on all mechanical equipment in his team’s area;
b) carrying out the repair and recasting of production pots used to carry molten metal between areas;
c) rebuilding and replacing launders, used to get molten metal from the furnace and into production pots;
d) rebuilding tap holes to get material out of the furnace;
e) repairing broken-down plant equipment;
f) patching or replacing wall and roof segments within the furnace that degrade over time;
g) adjusting and repairing electrodes and their surrounds;
h) manufacturing pipework, framework, and general boiler-making tasks; and
i) repairing and rebuilding chain conveyors and dust transport systems. 64
[45] Mr Christian referred to the interactions with other teams, noting that silo operators (Production Employees) were responsible for unloading trains into the storage silos, and flash furnace operators (Production Employees) were responsible for running the furnace and the equipment that turned various materials into molten metal, and transporting it to the convertors. 65
[46] Mr Christian expressed that he had little to do with most Production Employees and support staff, noting the occasional interaction with certain Production Employees in convertors, acid-handling and the oxygen plant, during breakdowns. 66 Concerning the assistance provided by Production Employees, Mr Christian said that the only time the Maintenance Team receive such assistance was on certain limited tasks during major shutdowns, which were scheduled a couple of times a year. 67
[47] Outside of the major shutdowns, Mr Christian acknowledged that the only other task which involved Maintenance Employees and Production Employees working together, was a plug and insert change. 68 Mr Christian explained that Maintenance Employees assisted an Operator to carry out this task when the Production Employees were short-staffed.69
[48] Regarding the task of a ‘JE’ change out, Mr Christian stated that Production Employees and Maintenance Employees did not work together on this maintenance task. 70
[49] According to Mr Daniel Hannan, WA Branch AMWU Organiser, the Respondent employed three broad categories of workers at the Smelter. 71 These categories include operations, maintenance, and management.72 Mr Hannan said that the Production Employees and support technicians operate the Smelter and analyse samples in the lab whereas the Maintenance Employees, including apprentices, maintain the operating equipment.73 Mr Hannan said that white-collar employees work in administration, management, engineering, and planning.74 According to Mr Hannan, the Maintenance Employees were generally qualified tradespeople, except for some maintenance technicians and all apprentices.75
[50] Mr Hannan explained that the typical duties of an electrical maintenance worker included completing planned preventative maintenance tasks and carrying out repairs to broken-down plant equipment. 76 The electrical maintenance workers often worked in close conjunction with the mechanical maintenance team, according to Mr Hannan.77
[51] Mr Hannan stated that the maintenance workers had minimal interaction with support technician workers, 78 and some occasional interaction with Production Employees. In respect of the interaction with Production Employees, this arose, according to Mr Hannan, because maintenance workers serviced items of plant and equipment that Production Employees operated.79 However, Mr Hannon further observed that the Maintenance Employees and Production Employees were said to have distinct and separate tasks, with little crossover.80
Petition
[52] Mr Christian said that back in 2021 ‘we reached out to our union rep, Daniel Hannan from the AMWU, to talk about bargaining for a new enterprise Agreement to replace the one that has expired’. 81 Presumedly, Mr Christian’s reference to ‘we’, is a reference to some, if not all, Maintenance Employees.
[53] Mr Christian and Mr Robinson expressed that the Group had an awareness that the 2012 Agreement applied to other groups of employees at the Smelter and Concentrator. 82 However, due to the limited interactions with other groups of employees, the Group was not aware of any attempts outside of the Group to commence bargaining for a replacement for the 2012 Agreement.83
[54] Mr Christian and Mr Robinson detailed that in their discussions with Mr Hannan, Mr Hannan outlined that if the Group’s employer refused to start bargaining with the union, an application for a MSD could be submitted. 84 Mr Christian said that Mr Hannan provided copies of the expired 2012 Agreement and left his card so he could be called to discuss the process or ask any questions.85
[55] On 9 December 2021, Mr Christian signed the petition which had been provided by Mr Hannan, and also witnessed several of his workmates in workshop MN40, signing the petition at the same time. 86
[56] Mr Christian stated that he signed the petition because he wanted to bargain for a new agreement, 87 and he was stating his support to bargain for a new agreement covering the Maintenance Employees’ pay and conditions, and also that he supported the AMWU as his bargaining representative.88
[57] Mr Robinson described having attended a gathering at the Dome café on 7 December 2021, where Mr Hannan and Ms Renee Portland from the AMWU, presented and explained the petition. 89 Mr Robinson said that he signed the petition at that time, and witnessed another worker signing it at the same time.90
[58] In respect of a meeting held on 8 February 2022, in MN90, Mr Robinson gave evidence that he accompanied Mr Hannan to that meeting, where Mr Hannan was presenting and explaining the petition and collecting signatures for it. 91 Mr Robinson stated that he witnessed several more colleagues sign the petition at that time.92
[59] Mr Hannan gave evidence that in 2021, the AMWU was approached by its members at the Smelter seeking a new enterprise agreement to cover their employment conditions and replace the expired and out-of-date agreement. Mr Hannan said that during 2021, he held numerous conversations with union members at the Smelter regarding how to progress their wish to commence bargaining for a new agreement. 93 As part of these discussions, Mr Hannan advised members that an option in order to move forward (in circumstances where the Respondent refused to bargain and issue the notice of employee representational rights) was to pursue an application for a MSD.94
[60] Mr Hannan said he conducted a right of entry site visit at the Smelter on 6 December 2021 and followed this up with further right of entry visits on 8 and 9 December 2021, and 7, 8, and 9 February 2022. 95 Mr Hannan further explained, that as some workers were not onsite during the right of entry visits due to working a shift roster, he attended the Dome Café in Kalgoorlie on 7 December 2021 with Organiser, Ms Portland.96
[61] Mr Hannan stated that during all interactions with employees, he explained to workers that for them to press their claim for a modern enterprise agreement to cover them, they needed to lodge an application for a MSD in the Commission, and that the petition was a common method used to show that a majority wanted to bargain. 97
[62] Regarding the custody of the petition, Mr Hanan expressed that he did not leave the petition behind with workers or any other party at any point and always had custody of the petition, except for the two times when Ms Portland held a copy to conduct right of entry visits to the Smelter on 7 and 9 December 2021. 98
[63] Ms Portland confirmed that on 7 and 9 December 2021, she had conducted right of entry visits to MN90 and MN01. 99 Ms Portland gave evidence that she did not leave the petition behind with workers or anyone else at any point and had always had custody of the petition during her right of entry visits.100 Ms Portland explained that Mr Hannan took custody of the petition sheets from her and that the original petition remained in a secure place in the AMWU Bunbury office.101
[64] I note that the Commission’s power to determine a time under s 237(2)(a) is confined to the question of which employees are employed by the employer at a particular time. The Commission’s task is to fix in time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date, but not the date on which a majority wishes to bargain. The latter question is to be assessed as at the date of the decision, using the most recently available information (see Kantfield Pty Ltd v AWU, 102 and NUW v Lovisa Pty Limited103).
[65] The time that I have determined for the purposes of s 237(2)(a) is 24 March 2022, being the date that the AMWU and the Respondent had submitted the Employer List and unredacted petitions to the Commission.
[66] One of the first issues raised by the Respondent was that the Group had not been identified with sufficient particularity such that the Commission could be satisfied a majority of the Group want to bargain.
[67] Expanding upon this point, the Respondent explained that in the application, the AMWU described the Group as ‘all maintenance employees, including apprentices, who are directly employed by the Respondent at the Kalgoorlie Nickel Smelter (located at Smelterman Drive, Feysville, WA 6431)’ categorised as follows: Mechanical Maintenance Technicians, Electrical Maintenance Technicians, General Maintenance Technicians and Apprentices but excluding Process Technicians, Support Technicians and Trainees. 104 However, in its submissions, the AWMU had described the Group as, ‘all maintenance technicians, including apprentices, who are directly employed by the Respondent at the Kalgoorlie Nickel Smelter located at Smelterman Drive, Feysville, WA 6431’. The Respondent contended that the latter description was broader and as such may refer to any employee at the Smelter with maintenance skills, including Production Employees who had been upskilled or who otherwise performed work alongside Maintenance Employees.
[68] The Respondent cautioned that it had adopted the assumption that the Group described by the AMWU was the Maintenance Employees and did not include any Production Employees.
[69] In its submissions in reply, the AMWU confirmed that its reference to ‘maintenance employees’ should not be construed to mean ‘all employees of the Maintenance Department’ at the Smelter. At hearing, the AMWU’s submission appeased the Respondent, with the Respondent noting that the clarification had resolved the issue. I also consider that to be the case.
[70] The Respondent proffered two reasons why the petition should not be accepted as credible evidence of the views of the Group. The first, concerned the method of determining the majority, the second, was that the AMWU had not provided any evidence which gave a reasonable basis for a finding that the Group understood the purpose and effect of the petition.
5.1 Method of determining the majority
[71] The Respondent argued that the AMWU had not established the veracity and authenticity of the signatures alleged to be on the petition. It observed that the petition which had been attached to the witness statement of Mr Hannan, showed a wholly redacted series of columns where employee names, classifications, contact details, signatures and dates of signing were recorded. The Respondent argued that it was therefore unable to understand: (a) whether the individuals who signed the petition were, at the time of signing, rostered to work at the Smelter; (b) how many individuals signed the petition off-site at a third party venue; 105 and (c) whether signatures that appeared on the petition matched the signatures of relevant employees within the Group.
[72] The Respondent acknowledged that the Commission had been provided with unredacted copies of the petition and had conducted a cross-referencing exercise, however, it pressed that the AMWU had not filed any evidence that would allow the Commission to confirm the integrity of the signatures on the petition itself, other than the assertions by Ms Portland and Mr Hannan that they retained custody of the petition at all relevant times. 106
[73] The Respondent’s assertion raises the contentious question of whether the use of petitions, and in particular the Commission’s reliance on un-redacted material in circumstances where the Respondent has seen only redacted copies, is an appropriate method for the Commission to determine whether there is majority support for bargaining. Related to this, is the question of whether the Commission’s reliance on un-redacted material that the Respondent has not seen would deny the Respondent procedural fairness.
[74] There is a broad discretion afforded to the Commission to use any method it considers appropriate to work out whether a majority of employees want to bargain, which therefore contemplates a variety of possibilities. 107 It was observed in AMWU v Veolia Water Operations Pty Ltd108 that there is significant case authority that a petition may be an appropriate way to work out whether a majority of employees want to bargain.
[75] Counsel for the Respondent emphasised that the Commission is required to act judicially in relation to it exercising its statutory power under the Act, including for applications of this kind. Counsel explained that this meant the Commission was only able to reach the requisite degree of satisfaction on each of the jurisdictional pre-requisites based on the materials before it that provided a reasonable foundation for such findings.
[76] There is nothing particularly controversial about the Respondent’s submissions in this respect. In INPEX Australia Pty Ltd v The Australian Workers’ Union (Inpex No.2), 109 the Full Bench stated that the exercise of a statutory power of an administrative character, including one that was discretionary in nature, will usually be beyond jurisdiction unless the implied conditions of rationality, reasonableness and fairness are complied with.110 The Full Bench considered that the discretionary power to make a majority support determination under ss 236-237 was such a power.111
[77] In INPEX Australia Pty Ltd v The Australian Workers’ Union (Inpex No. 1), 112, the Full Bench observed that a determination that majority support exists is not a speculative investigation into whether it exists.113 The observation arose in circumstances where the Commission’s decision to order a ballot at first instance to determine whether there was a majority, was considered by the respondent party to be affected by jurisdictional error because the decision was not made judicially, in the sense that it had been made arbitrarily or lacked justification.114
[78] The Respondent submitted that the AMWU as the party applying for orders under s 236, was responsible for establishing and ensuring that the Commission had sufficient evidentiary foundation for its findings. The Respondent’s proposition is not misplaced and is supported by decisions of this Commission such as that of Coal and Allied Operations v AMWU (Coal and Allied). 115
[79] In Coal and Allied, the Full Bench considered the concept of the requisite level of satisfaction, stating that ‘[T]here is a respectable basis for the view that, where there is a statutory requirement for the Commission to be “satisfied” about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process’. 116 While it may be argued that no party can be said to bear an onus, the Full Bench noted that the principles associated with the notion of onus of proof can have a useful role.117 The principle that may be extracted from the case is that the applicant is required to establish how the particular petition came into existence and why it can be relied on in deciding whether a majority want to bargain. In this respect, there must be sufficient detail to establish the requisite satisfaction.
[80] As earlier stated, it is uncontroversial that petitions are an obvious way to demonstrate employee support for the purposes of s 237 and can provide a sound evidentiary basis for the Commission to assess whether there is majority support for bargaining. 118 In NUW v Lovisa Pty Limited (Lovisa), the Deputy President made the following observations about the use of petitions, noting:
It is in principle a method of assessment of majority support that accords with the object of Part 2-4 to provide a ‘simple, flexible and fair framework that enables collective bargaining in good faith’ (s 171(a)), and the requirement in s 577 that the Commission perform its functions and exercise its powers in a manner that is quick and informal, avoiding unnecessary technicalities (s 577(a) and (b)). Another requirement is that the Commission act in a way that is open and transparent (s 577(c)), and I will return to this below. 119
[81] Returning to the point regarding transparency, in that same decision the Deputy President observed that the respondent in Lovisa had not objected to the use of the petitions per se, but instead, contended that the Commission should not rely on the employee petitions as evidence of majority support without affording the company an opportunity to examine the un-redacted copies of the relevant documents. The respondent contended that it would not be an appropriate method or part of an appropriate method, for the purposes of s 237(3), for the Commission to work out whether there is majority support for bargaining. In response to the contention the Deputy President stated:
[36] In the absence of some evidence or contention raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that the Commission can receive and rely on an un-redacted copy of a petition obtained for the purpose of s 237 and for the employer to receive a redacted copy. In my view it would be natural for employee–petitioners to be apprehensive about their identities being revealed to the employer, given they are taking a position that is aligned with a union in an effort to have their employer agree to something it evidently does not want to do, namely bargain. Often the employer accepts this and does not object to this approach, and in such cases there is no difficulty in the Commission proceeding to rely on the material. But in this case the employer objects and the Commission must therefore decide on the appropriate approach.
[82] As was the case in Lovisa, the Respondent in this matter never formally sought access to the un-redacted material (petitions) by way of filing an application for an order to produce. This was the case notwithstanding the direction issued to the parties on 7 April 2022. However, in light of its argument that it was unable to understand: (a) whether the individuals who signed the petition were, at the time of signing, rostered to work at the Smelter; (b) how many individuals signed the petition off-site at a third party venue; 120and (c) whether signatures that appeared on the petition matched the signatures of relevant employees within the Group, it can be inferred that the Respondent held the position it should have been granted access to the petitions. So much is clear from its initial response to the application where it submitted that it had a legitimate interest in being provided with the petitions so that it could satisfy itself that the AMWU did not in fact have majority support and can could challenge the AMWU’s case if there were reasonable grounds for doing so.121 In that same initial response, the Respondent pressed that the provision of such material was a necessary incident of the rules of natural justice, which the Commission was bound to apply.122
[83] It was observed in Lovisa that ‘[O]rdinarily, all material produced to the Commission by a party in a proceeding should be provided in full, un-redacted and unedited, to the other side, and only such material would be relied on by the Commission in reaching its decision’. 123 However, the Deputy President continued that occasionally the interests of justice may require the Commission to take a different course and in doing so it was important to consider how and to what extent the other party might be adversely affected and what measures can be taken to minimise any adverse effect.124
[84] Clearly, the Respondent has a legitimate interest in understanding what method the Commission has chosen to assess whether there is majority support and why it considers that method to be appropriate, and also in understanding why the Commission has concluded that there is in fact majority support for bargaining. 125 However, as noted in Lovisa, it is understandable why the AMWU sought to protect the identities of the petitioners by not disclosing their names given the Group’s support of a process that the Respondent does not wish to participate in – namely bargaining. I will expand further upon this point shortly after addressing the Respondent’s concerns.
[85] The Respondent spoke of its inability to understand whether the individuals who signed the petition were, at the time of signing, rostered on to work at the Smelter. Still, the task at hand is one of determining whether a majority of the Respondent’s employees at a time determined by the Commission and who will be covered by the proposed agreement, want to bargain. The question is not whether the individuals who signed the petition were, at the time of signing, rostered to work at the Smelter. In circumstances where, for example, the evidence of a witness has been impugned or her or his credibility has been called into question, then such evidence of say, the rosters, may assist the Commission to illuminate any deficiencies in the evidence or to the contrary, may reinforce the believability of the witness and any direct evidence led.
[86] In the present case, Mr Hannan said he conducted right of entry site visits at the Smelter on 6, 8 and 9 December 2021, and 7,8 and 9 February 2022. 126 Mr Hannan further explained that as some workers were not onsite during the right of entry visits due to working a shift roster, he attended the Dome Café in Kalgoorlie on 7 December 2021 with Organiser, Ms Portland.127
[87] As noted, regarding the custody of the petition, Mr Hannan expressed that he did not leave the petition behind with workers or any other party at any point and had always had custody of the petition, except for the two times when Ms Portland held a copy to conduct right of entry visits to the Smelter on 7 and 9 December 2021. 128
[88] Ms Portland confirmed that on 7 and 9 December 2021 she had conducted right of entry visits to MN90 and MN01. 129 Ms Portland gave evidence that she did not leave the petition behind with workers or anyone else at any point and had always had custody of the petition during her right of entry visits.130 Ms Portland explained that Mr Hannan took custody of the petition sheets from her and that the original petition remained in a secure place in the AMWU Bunbury office.131
[89] I have reviewed the petitions and observe that for each employee that has signed the petition a date has been provided that aligns with the right of entries over the 6, 7, 8 and 9 December 2021, and 8 and 9 February 2022, and the Dome Café meeting on 7 December 2021.
[90] The Respondent submits that the AMWU has not filed any evidence that would allow the Commission to confirm the integrity of the signatures on the Petition itself, other than the assertions of Ms Portland and Mr Hannan that they retained custody of the petition at all relevant times. The contention is not correct. Mr Robinson gave evidence that he attended the Dome Café gathering on 7 December 2021, where Mr Hannan and Ms Portland presented and explained the petition – noting that he signed the petition at that time. 132 Mr Robinson also stated that he accompanied Mr Hannan when he was presenting and explaining the petition, and collecting signatures for it, in MN90 on 8 February 2022, and witnessed several more colleagues sign it at that time.133 Mr Christian said he signed the petition on 9 December 2021, and that it had been provided to him and explained by Mr Hannan. Mr Christian added that he had witnessed several of his workmates in my workshop, MN40, signing the petition at the same time. 134
[91] Mr Christian’s name, classification, mobile phone number, email address, signature and date of providing that information (9 December 2021) can be found on the unredacted petition. There was no evidence led to suggest that Mr Christian could not be believed regarding his account that he signed the petition on that date or that the entry on the petition was not his.
[92] Similarly, Mr Robinson’s name, classification, mobile phone number, email address, signature and date of providing that information (7 December 2021) can be found on the unredacted petition. Again, there was no evidence led to suggest that Mr Robinson could not be believed regarding his account that he signed the petition on that date or that the entry on the petition was not his.
[93] The AMWU has relied upon the evidence of four witnesses to support its contention that a majority of the Maintenance Employees wish to bargain and that the petition can be relied upon. Ms Portland was not cross examined therefore suggesting that the Respondent took no issue regarding her evidence. Regarding the evidence of Messrs Christian and Robinson, the Respondent appeared to take no issue with either gentleman having signed the petition.
[94] With respect to the evidence of Mr Hannan, he conceded he did not ask the employees in attendance at the right of entry visits for identification such as employee identification cards or drivers’ licences. However, with the exception of the meeting held at the Dome Café, the signatures of other petitioners were obtained during visits to the Smelter where the purpose of the visit was to hold discussions with employees of the Respondent of which the AMWU was entitled to represent the industrial interests. When the unredacted petitions are considered against the employee list in light of this evidence, it is arguable that the inference can be drawn and relied upon, that Mr Hannan garnered signatures from petitioners who were all Maintenance Employees and formed part of the relevant cohort, with the exception of one – who was a supervisor.
[95] It has been established on the evidence that the petitions were at all times under the custody and control of responsible persons, whether they be organisers or delegates. The Respondent has spoken of its inability to understand how many of the petitions were signed off site at a third party venue. However, I again return to my finding the petitions were at all times under the custody and control of a person, whether an organiser or delegate who maintained the integrity of the petition process. The evidence led about the integrity of that process was compelling. The witnesses of the AMWU gave direct accounts absent any attempt to obfuscate regarding the petition process. Further, the evidence before me does not suggest that the accounts provided by the AMWU’s witnesses concerning the petition process deviated from the narratives they provided. While the Respondent draws upon this issue to support its contention that the AMWU has not established the veracity and authenticity of the signatures, the argument cannot be sustained.
[96] As part of its argument that the Commission should not accept the petition as credible evidence of the views of the Maintenance Employees and that the AMWU had not established the veracity and authenticity of the signatures, the Respondent refers to its inability to understand whether signatures that appeared on the petition matched the signatures of relevant employees within the Group. The contention is suggestive that the Respondent sought the provision of the unredacted petition to perform a forensic examination of the physical signatures on the petition with ones they had, or may have had, on file, as part of illustrating the dissimilarities or similarities between the two.
[97] Whatever method is used by the Commission to determine whether there is a majority, the parties can lead evidence about whether or not the method or methods have demonstrated that there is in fact majority support. The Respondent clearly has had this opportunity, but provided limited evidence as noted. In Lovisa, the company submitted that to expect it to give evidence about whether there is majority support placed some onus on it to prove a negative – a submission that was not accepted by the Deputy President. 135 The Deputy President in Lovisa continued:
The Act requires the Commission to consider whether it is satisfied that majority support exists. In my view, it is not meaningful to speak of an onus, other than to note the practical interest that an applicant has to convince a decision-maker that relevant statutory requirements have been met. The company was not ‘expected’ to give evidence. Rather, it had an opportunity to lead evidence and decided not to do so. 136
[98] In Lovisa the respondent had argued that the Commission is required by s 577(c) to act in a manner that is open and transparent, and that it would be contrary to this requirement for the Commission to rely on un-redacted material that it has not seen. The Deputy President observed in Lovisa that what is required by each of the matters referred to in s 577 will depend on the circumstances. 137
[99] The use of redacted petitions prevented disclosure to the Respondent of the identity of persons who signed the petition. Directions of the type issued, and reliance on an unredacted petition in circumstances where an employer is only provided a redacted version is considered orthodox. 138
[100] As was said by the Deputy President in Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (the AMWU Case) 139, the justification for confidentiality of identity is well established. In National Union of Workers v Cotton-On Group Services Pty Ltd, it was noted at first instance:
[O]ften the views of the employer will have a strong influence upon employees and on occasion employees will be anxious about being seen to express a view contrary to that of their employer. 140
[101] There will likely be occasions where the Commission’s reliance on the un-redacted material gives rise to a consequence that the Commission is failing to act in a manner that is ‘open’. However, as was observed by the Deputy President in Lovisa, ‘[O]penness is not an ‘all or nothing’ proposition’. 141 As is the case in this type of application, there are other factors in play. In my view, those factors were aptly articulated by the Deputy President in the AMWU Case where he said:
[R]equiring the provision of unredacted petitions to an employer, as some general rule of procedural fairness in a contested majority support determination, is capable of dissuading employees from participating in petitions sought to be used to establish support for collective bargaining. Given that a statutory object of Part 2-4 of the FW Act is to “facilitate good faith bargaining and the making of enterprise agreements”, it would be undesirable, as some form of general rule, to mandate the provision of unredacted petitions to employers in contested applications under section 236 of the FW Act. 142
[102] In this case I have conducted a cross-referencing exercise between the employee list, the petition, and the list of employees in the cohort supplied by AMWU. After that exercise, the Commission advised the parties that it had checked the names of petitioners against the employee list and found that 33 out of 51 Maintenance Employees signed the petition, a majority of 64.71%.
[103] In my view, it is correct to say that the AMWU is responsible for establishing and ensuring that the Commission has sufficient evidentiary foundation for its findings. It has done just that, and while the Respondent levels assertions about the veracity and authenticity of the signatures, it does so from a basis of having provided no sufficient evidence, even on a prima facie basis, to cast doubt upon the veracity of the signatures or the petition process.
[104] The potential prejudice to the Group from disclosing the identity of those that signed the petition outweighs the procedural usefulness to the Respondent from disclosure. I am satisfied that there is limited probative purpose in identifying persons given the reconciliation conducted by the Commission.
5.2 Whether the Group understood the purpose and effect of the petition
[105] The second reason proffered by the Respondent on why the petition should not be accepted as credible evidence of the views of the Group, was the AMWU’s failure to provide any evidence which gave a reasonable basis for finding that the Group understood the purpose and effect of the petition.
[106] The premise of the Respondent’s argument focused on the preamble of the petition. That preamble read:
We the undersigned employees of BHP Nickel West, (the Employer), wish to bargain to renew the BHP Nickel West Kalgoorlie and Kambalda Safety Net Agreement that covers maintenance workers employed at BHP Nickel West Kalgoorlie Nickel Smelter, Smelterman Dr, Feysville WA 6431 (Proposition 1).
Pursuant to section 176 of the Fair Work Act 2009 (Cth), we nominate the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (“the AMWU”) to act on our behalf as a Bargaining Representative. (Proposition 2).
[107] The Respondent submitted that the preamble contained two discrete propositions. The first, that the employee wishes to bargain, and second, that the employee wishes to appoint the AMWU as a statutory ‘bargaining representative’ pursuant to s 176 of the Act.
[108] The Respondent contended that on a fair reading of the petition’s preamble, it was not clear whether a signatory to the petition was agreeing with Proposition 1 or Proposition 2, or both, because no conjunction was used to join the propositions – rather, the two propositions are bisected by a line space.
[109] In respect of the statement that what was proposed was the ‘renew[ing]’ of the 2012 Agreement, the Respondent submitted that this was misleading on two fronts. The first, the 2012 Agreement covered a broader cohort of employees than the Group. The second, bargaining for a replacement to the 2012 Agreement would not constitute a simple renewal of the 2012 Agreement. It would see a different group of employees bargaining for new terms and conditions. The Respondent pressed that this lack of clarity could have influenced the views of the employees as to precisely what they were endorsing – enterprise bargaining (and what this would mean), or the appointment of the union as a bargaining representative.
[110] The Respondent took issue with the AMWU’s evidence regarding the understanding of the Group with regard to bargaining, by pointing to the following:
a) at an unspecified point in 2021, Mr Hannan had ‘numerous conversations’ with union members, with the implication being that these union members were members of the Group. 143 In the course of these conversations, Mr Hannan advised that the union could ‘pursue an application of a majority support determination’.144
b) Mr Hannan and Ms Portland conducted several site visits to the Smelter site on 6, 8. 9 December 2021 and 7-9 February 2022, and a single visit to Dome Café on 7 December 2021, 145 where Mr Hannan and Ms Portland explained that:
i. pressing for an enterprise agreement would require a MSD application; and
ii. a petition was ‘a common method to show that a majority want to bargain’. 146
[111] The Respondent submitted that on the AMWU’s evidence, neither Mr Hannan nor Ms Portland had explained what an enterprise agreement is or what bargaining involves. Furthermore, Mr Hannan and Ms Portland did not explain the union’s role in the process, or the effect of a MSD.
[112] As to the content of the petition, the Respondent stated that the petition did not contain any explanation of what an enterprise agreement is or what bargaining involves. The petition had referred to s 176 of the Act and to the term ‘bargaining representative’, which is defined in the Act, without explaining either reference. The Respondent submitted that the AMWU had not adduced any evidence that the Group were given any other explanation of these concepts.
[113] The AMWU submitted that the content of the petition clearly set out who is signing it, what the workers want, who the proposed agreement would apply to, and that the workers endorse the AMWU to act on their behalf in the negotiations and lodging the MSD application.
[114] Referring to the evidence of Mr Hannan and Ms Portland, the AMWU argued that the purpose of the petition had been clearly explained to the workers who had signed it. 147 The AMWU continued that the petition was not signed under duress, and Mr Hannan had constant custody of the petition, with the exception of two occasions when the petition was in the custody of Ms Portland.148
[115] In The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks (Austral), 149 the respondent employer argued that the petitions could not be relied upon as they were insufficient to demonstrate the informed wishes of employees. The petitions in question had been signed on the basis that all of the production group were being requested to endorse the proposal, rather than only those who were eligible. As it turned out, some of the employees in the production group were covered by individual transitional instruments (therefore ineligible to vote), which had not been considered when the AWU officials were preparing and distributing petition – hence affecting the explanation given to the employees about the purpose of the petition. In the respondent employer’s view, this oversight brought the petition into doubt.150
[116] In Austral, it was found that that the explanation was consistent with the heading on the petition but was based on the assumption it was a majority of the whole production group that was required by the Act, and that bargaining would involve the entire group. The lack of a full understanding of the context for the petition and the inclusion of persons who were outside of its proper scope were relevant considerations according to the Commissioner. However, the Commissioner was satisfied that a majority of the eligible employees had indicated that they wished to bargain with the respondent employer.
[117] In arriving at this conclusion, the Commissioner observed that the purpose of the petition was clear on its face, and although the explanation given was wrong in certain respects as to its scope, it was the apparent understanding of the three employees who were eligible to sign and did so, that was to be considered. Each had signed, having been informed that this would, if supported by the majority, lead to bargaining directed towards an enterprise agreement. The Commissioner noted that while bargaining would only involve each of the three employees and not the entire group, this did not undermine the informed nature of the employees’ position.
[118] As was said in Austral, s 237(2) makes clear that the Commission may work out whether a majority of employees want to bargain using any method considered appropriate. In approaching the matter, regard is had to the relevant objects of the Act, particularly those set out in s 171 of the Act and aside from considering whether the statutory prerequisites are met, the Commission must be positively satisfied as to the requirements in s 237(2) given the express requirements of the Act, and the consequence for all parties of the determination being sought. 151
[119] To reiterate, in Austral the Commissioner focused on the apparent understanding of the three employees who were eligible to sign the agreement and did so sign.
[120] In my view, notwithstanding the protestations of the Respondent, the purpose of the petition was clear on its face. First, the employees signing the petition were indicating they wished to bargain to ‘renew’ the 2012 Agreement. While the Respondent takes issue with the use of the word ‘renew’, on an objective level I do not consider that this detracts from the communicated purpose of bargaining for an enterprise agreement – the reference to ‘renew’ simply indicating that the context was one where there was an existing agreement in place, 152 and the employees were desirous of changing its terms (including perhaps all of its terms) by negotiating for a further agreement.
[121] Whilst the Group differed to the group covered by the 2012 Agreement, as was the case in Austral, I do not consider this impacted upon the Group’s apparent understanding of the purpose of the petition. Each petitioner had signed, having been informed by the signing the petition indicated her or his support for bargaining for an enterprise agreement. 153
[122] While the preamble contained two propositions, Proposition 1 and Proposition 2, it appears clear that by signing the petition the petitioners supported both Propositions. The subject matter of Proposition 1 and Proposition 2 were not disparate when one considers the context in which the petition was provided and the content of the propositions. Essentially, Proposition 1 indicated the petitioner wanted to bargain and in Proposition 2, the petitioner nominated the AMWU to represent the petitioner as a bargaining representative. Ultimately, if the employees in the Group were not content with the propositions, then they may have chosen not to sign.
[123] Section 237(2)(c) of the Act provides that the Commission must not make a MSD unless the group of employees who will be covered by the agreement was fairly chosen. The AMWU bears the onus or responsibility of satisfying the Commission that the relevant employee group is fairly chosen. 154 As a jurisdictional prerequisite to the Commission’s power to make a MSD, the ‘fairly chosen’ requirement must be ‘carefully and strictly applied by the Commission before an order is made’.155 Nevertheless, a decision as to whether the Group is fairly chosen will inevitably involve a degree of subjectivity or value judgment.156
[124] When the relevant cohort does not include all of the employees of the employer, s 237(3A) applies and requires: 157
a) a determination whether the employees in the cohort argued for are organisationally distinct from other employees of the Respondent who are not in the cohort;
b) a determination whether the employees in the cohort argued for are operationally distinct from other employees of the Respondent; and
c) a determination whether the employees in the cohort argued for are geographically distinct from other employees of the Respondent.
[125] The Commission is required to make a positive finding in relation to each of the above matters. 158 Absent such findings, the Commission cannot properly discharge its statutory function.159
[126] The group of employees may be fairly chosen even if they are not organisationally, operationally or geographically distinct, but this distinctiveness is a matter which must be evaluated and given due weight. 160 As the Full Bench has noted, such an evaluation ‘is necessarily a relative, not absolute, concept, and necessarily requires a comparison between the employees who will be covered by the proposed agreement and those who will not’.161
[127] A lack of distinctiveness ‘is a factor telling against a finding that the group is fairly chosen’. 162 Where the group is not geographically, operationally or organisationally distinct, this must be given significant weight in deciding whether the group was fairly chosen, and it is necessary to identify what, if any, factors outweigh this.163
[128] Section 237(2)(c) is in substantially similar terms to s 186(3), and s 237(3A) is in the same terms as s 186(3A) of the Act. Authorities considering s 186 therefore indicate how s 237 ought to be applied. 164
[129] Geographical distinctiveness relates to the group of employees with respect to whom the majority support order is sought. 165 This is generally based on the relevant employees working in a single location or a geographical subset of the employer’s total business.166
[130] Also relevant to this issue is whether the group of employees work at a different work site or work location to other employees of the employer. 167 If, upon the evidence, ‘it is not possible to compare the geographical work locations of those covered by the agreement with the geographical work location(s) of employees not so covered’, then a finding of a geographical distinctiveness will not be open.168
[131] It is evident that the Group is not geographically distinct because the employees within the Group work at the same premises (the Smelter) as other employees who would not be covered by the proposed agreement, including Production Employees and other employees in the Maintenance Department.
[132] The Smelter employees who form the Group are not physically distanced or separated from these other employees at the Smelter. Where a purported Group works alongside a range of other employees, it is unlikely they will be considered geographically distinct. 169
[133] I am satisfied that the Group is not geographically distinct from other workers employed by the Respondent and note that I do not consider the Group forms a geographical subset of the total business. 170
[134] In Aerocare Flight Support Pty Ltd v TWU (Aerocare), 171the Full Bench outlined propositions it considered relevant to the interpretation and application of the term ‘organisationally distinct’ as found in s 186(3A).172 Those propositions were:
a) the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations; 173
b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; 174
c) however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; 175 and
d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 176
[135] The Respondent’s starting point was that it could not be sustained on the evidence that the Maintenance Employees were a defined organisational group.
[136] Insofar as reporting lines were concerned, the Respondent submitted that all employees at the Smelter reported into the one common General Manager and all of the employees in the Maintenance Department (including those not in the Group) reported to a common Maintenance Manager. 177 The Respondent pressed that this was one of the reasons the Group was not organisationally distinct. It continued that there was not a common reporting line until the manager level and Maintenance Employees were allocated to one of the five workshops where they reported to a supervisor, and supervisors reported into three execution superintendents. One of the superintendents managed both Maintenance Employees and others.
[137] My first observation is that the Organisational Chart 178 showed a clear delineation between the reporting lines of the Production Department and Maintenance Department. Three managers headed up Production – a Manager of Smelter Development, a Manager of Production, and a Manager of Engineering. Underneath those managers, sat a Superintendent of Production Converters and a Superintendent of Production Furnace and underneath these two positions were Supervisors of Converters and Production Furnace. Also reporting into the managers, were various Supervisors of Production Services, Superintendents of Production Services, Superintendent of Process Engineering and Superintendent of Production Planning. This contrasted to the reporting lines under Mr Uebergang which were separate to those in Production.
[138] Under Mr Uebergang sat a Superintendent of Maintenance Execution Smelting, a Superintendent of Maintenance Execution Services, and a further Superintendent of Maintenance Execution Services.
[139] Under one of the Superintendents of Maintenance Execution Services sat three Supervisors – Maintenance Flash Furnace, Maintenance Smelter and Maintenance Classified Plant. Under these Supervisors, sat Technician Maintenance positions and Step Up Supervisors.
[140] Under the second Superintendent Maintenance Execution Services, sat a Supervisor Maintenance Services and under that Supervisor were Technician Maintenance positions, Apprentice Mechanical, Lubrication Technician and Step Up Supervisors.
[141] Under the third Superintendent of Maintenance Execution Services sat a Supervisor Maintenance EI, an Electrical Network Coordinator and several standalone positions including Engineer Control Systems and a Work Management Administrator. Under the Supervisor Maintenance EI were further Technician Maintenance positions and under the Electrical Network Coordinator were Apprentices Electrical. It was Mr Uebergang’s evidence, that despite working across multiple workshops, all electricians in the Maintenance Department reported to an Electrical Supervisor and Electrical Superintendent. 179
[142] Thereafter there was a box on the Organisational Chart that showed Lead Major Outages, SI Work Management Planning, SI Outages and Scaffolding and SI Maintenance Reliability.
[143] Consistent with this framework, Mr Uebergang gave evidence that the Maintenance Department also included the Planning Department, Reliability Department, Scaffolding and Outage Team and Asset Integrity Team.
[144] In support of its argument that the Group was not organisationally distinct, the Respondent pointed to the Group omitting the staff in the Maintenance Department who were not ‘Technicians’, including planners, workers in the Reliability Department, workers in the Scaffolding and Outage Team, and workers in the Asset Integrity Team. This was in addition to omitting the Maintenance Team at the Concentrator.
[145] At paragraphs [21] to [23] of his witness statement, Mr Uebergang described the other departments falling under umbrella of the Maintenance Department. 180
[146] The Planning Department comprised of seven planners and reported to the planning superintendent. Mr Uebergang had said that typically there was one planner per workshop with the planners being dispersed across them. 181 In giving his evidence, Mr Uebergang said that the Maintenance Team would not function without the planners and clarified that their role was to plan the work for the for the maintenance technicians.
[147] During the cross examination of Mr Christian and Mr Robinson, it became evident that the planners scheduled some of the planned preventative maintenance tasks but where breakdowns occurred and other jobs, it was down to the Maintenance Employees to plan everything and order it. However, Mr Christian accepted that the work performed by the planners formed part of the maintenance process and Mr Robinson accepted that the planning was an essential component of the maintenance process.
[148] Next, Mr Uebergang spoke of the Reliability Department which comprised of eight employees reporting into a reliability superintendent – the Department was based in the administration area albeit the employees were involved in the workshops. 182 The reliability engineers were said to support the site through defining the equipment strategies in order to achieve the business production objectives. Mr Uebergang noted that they were usually tertiary qualified, but some maintenance tradespersons had been promoted to such roles.183
[149] Mr Uebergang said that the Scaffolding, Asset Integrity, and the Outages Team were largely composed of contractors with an employee technician, reporting to the Scaffolding, Outages and Asset Integrity Superintendent. 184 The Scaffolding and Outages team was said to work from an administration area, but also had a large crib room elsewhere on site where they stored scaffolding equipment. The Asset Integrity team had a workshop in the plant and performed work across all areas of the plant.185 It predominately consisted of boilermaker contractors who performed structural type repairs around the Smelter.
[150] As noted, Mr Christian is a maintenance technician (boilermaker), who works in the workshop responsible for the maintenance of flash furnace and silos. Mr Christian said that ‘Maintenance Workers’ took meal breaks in designated maintenance meal rooms that aligned with the reporting structure, 186 that he had never participated in training with another workshop, that he was not aware of workshops sharing bathrooms.187 Mr Christian spoke of having little to do with most Production Employees and support staff and noted that it was his supervisor who met with other departments to plan tasks, shutdowns and the like -therefore minimising the Maintenance Employees interaction with other departments.188 I will talk further about the interactions with other departments shortly, however, at this juncture I want to turn to the evidence of Mr Robinson, who readers may recall is a shift 1 electrician.
[151] Mr Robinson gave the following account about the different departments falling under Maintenance:
a) Planning is a separate department than maintenance, and planning employees have different contracts than maintenance employees.
b) The Control Systems Team, work 38-hour weeks and have different contracts than the maintenance team, similar to the engineers’ contracts.
c) The vast majority of the Outages Team (I estimate at least 70%) are contractors. The Outages Team are engaged in planning, and do not take part in the execution of maintenance work.
d) Workers in the Scaffolding team also includes many contractors. Workers in the Scaffolding and Outage Teams have separate reporting structures than the maintenance team.
e) The Assets Integrity team is organised separately and reports separately on the organisational chart.
f) Neither I nor other members of the maintenance teams consider the employees engaged in Control Systems, Scaffolding, Outage, Planning or Assets Integrity to be part of the maintenance teams, and our organisational chart reflects this. 189
[152] Mr Robinson’s opinion as to whether employees within the Control Systems Department or the departments of Scaffolding, Outage, Planning or Assets Integrity form part of the Maintenance Department holds little to no weight, but his observation regarding the organisational chart reflecting what I would call a disjunct between these departments, is in my view accurate. Predominately, the technicians maintenance report into maintenance supervisors and while one superintendent has the electrical network coordinator reporting into him and three engineer control systems positions and a work management administrator, the remaining departments under the Maintenance Department appeared to stand alone on the Organisational Chart.
[153] Mr Uebergang gave detailed evidence regarding the work undertaken by the Maintenance workshops and how they had been organised into five groupings. 190 I do not intend to traverse in exacting detail the work of the Maintenance Employees, save to say it has been carefully considered. What I will say in summary, however, is that the Maintenance Employees perform maintenance work with each workshop allocated its own responsibility – whether that be for mobile equipment or the Smelter’s high-speed rotating equipment.191
[154] Mr Christian provided details of his duties within MN40 at paragraph [7] of his witness statement, and similarly Mr Robinson outlined some of his usual duties at paragraph [8] of his witness statement. Their evidence has been considered.
[155] Mr Uebergang spoke of the Production Team typically owning and operating the equipment that the Maintenance Team maintained. 192 Mr Robinson provided further detail about a process operator’s tasks, which included running various plant equipment, cleaning and upkeep of the associated areas, reporting faults to the maintenance team, carrying out the isolation of equipment for mechanical tasks, issuing work permits, completing plant samples to take to labs, unloading trains, loading of acid trucks, and driving haul trucks.193 Mr Christian added that silo operators were responsible for unloading the trains into storage silos, and flash furnace operators, were responsible for running the furnace and the equipment within, to turn various materials into molten metal.194
[156] While accepting there is a level of interaction between the Production Employees and the Maintenance Employees, which will be further explored, the evidence does not support a finding that the work or duties of each group is similar.
[157] To explain further, in my view the Maintenance Employees perform work which differs to the work performed by other employees in the Maintenance Department and in the Smelter as a whole. As was said in United Firefighters Union v Metropolitan Fire and Emergency Services Board, (United Firefighters), 195 their ‘duties’ appear qualitatively different from the duties of others in the Maintenance Department and in comparison, to Production Employees. While the Respondent referred to examples where other employees in the Maintenance Department were integral to the Maintenance Employees performing their work – such as the planners, ultimately the work performed and skill set held by the Maintenance Employees fundamentally differed, whether that was in contrast to planners, reliability engineers, other employees in the Maintenance Department or Production Employees.
[158] Based on the evidence before me, I have found that the work performed by the Maintenance Employees is not similar, or for that matter is not very similar, to the work performed by other employees in the Maintenance Department, or in comparison to Production Employees.
[159] The Full Bench has previously pointed out in QGC Pty Ltd v The Australian Workers’ Union, 196 that integration may outweigh dissimilarity in work tasks:
[O]n the evidence before the Commissioner, Gas Plant Operators and Gas Plant Lead Operators are required to integrate into a structure under which they work with other employees – many of whom perform very similar work – to safely and efficiently operate and maintain the employer’s infrastructure. The evidence of integration was significant and was not outweighed by the fact that the Gas Plant Operators and Gas Plant Lead Operators perform different tasks or roles than those performed by other employees. As Counsel for the Appellant put the argument, a truck driver and a front end loader operator working together on a mine site would not be found to be organisationally, operationally or geographically distinct on the basis that they perform different tasks in what is an integrated operation. Accordingly we are of the view that it was not open for the Commissioner to conclude in the circumstances of the present case that the group of employees was organisationally or operationally distinct on the basis of the task or function that they perform. 197 (citations omitted; italics for emphasis)
[160] The Respondent pressed that the Group was not organisationally distinct because the employees in the Group worked in an integrated way with other employees in the Smelter to concentrate and smelt nickel sulphide ore. Examples of integration included where Production Employees and Maintenance Employees worked side-by-side on a JE change out, 198 or where Production Employees worked in the Maintenance Department to coordinate shutdown procedures.199
[161] One of the relevant questions to therefore ask is whether the evidence supports a finding that the integration is of such significance that it was not outweighed by the fact that the Maintenance Employees perform work fundamentally different to others within the Maintenance Department and in comparison, to Production Employees.
[162] As will be apparent, I consider the Organisational Chart reflects a distinct and identifiable Maintenance Department which comprises all employees at the Smelter whose work is directed towards the completion or performance of tasks to maintain the Smelter. Further, it is uncontroversial that those same employees sit under Mr Uebergang as the Maintenance Manager. However, as I have already found, within the Maintenance Department are identifiable and distinct groups or subsets.
[163] With respect to those groups such as the planners and the engineers, the Respondent submitted that their work was essential to maintenance trades people (Maintenance Employees) being able to effectively perform their roles, and that for this work to be completed effectively and efficiently, there must be a level of integration and the work must be appropriately planned.
[164] Mr Robinson acknowledged that due to the nature of his role, he interacted with all maintenance workshops (MN01, MN10, MN20 and MN40); and to ‘some extent he interacted with operations (service, converters and furnace), engineering, and management’. 200
[165] Mr Uebergang spoke of certain jobs which regularly required workers from the Maintenance Department to work closely with Production Employees. 201 The first example was a plug and insert change and furnace tap hole maintenance, described in detail at paragraph [45(a)] of his witness statement. As part of the description provided, Mr Uebergang referred to the job occurring three times a week and involving a maintenance technician – mechanical and one process operator.202 Mr Uebergang explained that the two employees worked together as a team with the job taking around four hours to complete. Supervision was provided by the furnace’s production supervisor.203
[166] Mr Uebergang next spoke of a ‘JE’ change out, meaning the process of cleaning out a furnace’s tap hole and performing certain excavation and maintenance work, including the removal and cleaning of copper cooling elements in a live (i.e. hot) furnace. 204 Mr Uebergang said that a JE change out occurred once every two weeks or so, and required a process operator, a production engineer, and two to three maintenance technicians.205 The Maintenance Technicians worked alongside the process operators to clean the tap hole and conduct the excavation work, while the production engineer took thermographic images of the furnace's tap hole to monitor furnace temperature in real-time.206 Mr Uebergang said that their work was interdependent, and could not be undertaken without the entire team present. The performance of the work was said to be undertaken under the control and supervision of a maintenance supervisor.
[167] Evidence was thereafter given about major outages and shutdowns, which Mr Uebergang said occurred at six monthly intervals. 207 During these periods (lasting for 25 days), production technicians were said to be deployed into the Outage Team (which formed part of the Maintenance Department) to prepare for outage works. Mr Uebergang said this included at least three production technicians (one from the furnace area, one from the converting area, and one from the services area) to assist with the writing of permits and the coordination of shut-down procedures.208 Mr Uebergang added that to support the exaction of work, production technicians were directly involved in the maintenance work to work in/alongside the maintenance.209 Examples provided included ‘buhler rebuilds’ and operating cranes in the furnace building.
[168] Another example of integration between Maintenance Employees and Production Employees was the ‘Permit to Work’ process, where equipment is isolated/locked out before work can be performed safely. 210 According to Mr Uebergang, typically the maintenance technicians, production technicians, the permit issuer and the permit acceptor were all required to walk through and review the job together to make sure equipment is isolated correctly. The collaboration was a mandated part of the procedure. Mr Uebergang noted that permits were required for all 'level 2 isolation works', and this process occurred multiple times each day across the site.211
[169] Mr Robinson acknowledged that the Permit to Work system required different teams to be coordinated to do isolations for a job but noted that it did not involve any collaboration on the job itself. 212
[170] According to Mr Christian the only time that the Maintenance Teams received assistance from operators was on certain limited tasks during major shutdowns, which were scheduled a couple of times a year. 213 Outside of major shutdowns, the only other task that involved the Maintenance and Production Employees working together was a plug and insert change, said Mr Christian.214 Mr Christian said that Maintenance staff assisted an operator to carry out this task. However, when the Production Employees were short staffed the Maintenance Employees would carry out this task without them.215
[171] Mr Christian clarified that he regularly carried out ‘JE’ change outs, and that Production and Maintenance Employees did not work together on a ‘JE’ change out. 216 During the course of cross examination, Mr Christian acknowledged that a process engineer conducted thermographic verifications while the maintenance was being performed to ensure that the equipment did not overheat, and the task was one that was requested by the Production Department. Such a request would arise when there was an issue, or the number of users exceeded the threshold. Mr Christian further acknowledged that a planner in the Maintenance Department would work out the plan, schedule the work and as such there was interaction between the Planning Department and the Maintenance Employees. Mr Christian also gave evidence that Production Employees cleaned out the tap holes (involving the use of jack hammers and the like) to get the equipment in the state ready for maintenance to be performed. That is, the Production Employees carried out the preparatory work for the maintenance work to be undertaken.
[172] In respect of a plug and insert change, Mr Christian explained that it was almost the same as a ‘JE’ brick change out, but the Maintenance Employee did not go as deep into the furnace in comparison to one where a jackhammer was used. Mr Christian explained that as the hole had already been dug out on a night shift or a couple of days before, the only people the Maintenance Employee would interact with would be the engineer who took the thermal imaging, and possibly the furnace specialist to obtain their permission to carry out the change.
[173] Mr Uebergang said that on a daily basis Maintenance Employees would be required to touch base and communicate with the Production Employees in the area that they are working. Mr Christian said that he would not say that it was a huge percentage of the week that the Maintenance Employee were actually in direct contact with the Operation staff (presumedly the Production Employees).
[174] In respect of the allocation of work to Maintenance Employees, Mr Robinson explained that the Maintenance Employees were provided with a weekly schedule that was available online. Mr Robinson said that Maintenance Employees logged into the ‘application’ to access the schedule that had been prepared by the workshop maintenance planner. If a problem arose with the schedule, it was apparent that the Maintenance Employee would discuss with issue with her or his supervisor, who would later discuss it with the planner.
[175] Mr Uebergang further gave evidence that Production Employees had, on occasion, been transferred into the Maintenance Department – albeit the examples were limited, and Mr Christian observed that not one had become a tradesperson.
[176] I have already dealt with the work performed by the Maintenance Employees differing to other employees working in the Smelter. In fact, the Maintenance Employees perform qualitatively different duties and work to those performed by other employees in the Maintenance Department. The Maintenance Employees can be further distinguished by the fact that they are grouped under maintenance supervisors, who thereafter report into maintenance superintendents. For the most part, each workshop comprises predominately of only maintenance employees, with the exception of a workshop maintenance planner within their midst, and at times an engineer. The Maintenance Employees sit separately on the Organisational Chart from other departments/teams in the Maintenance Department and from the Production Employees. They take lunch separately from others, appear not to share bathrooms, and according to Mr Christian do not participate in training with other workshops, although the parties appear to agree that the five workshops run safety, ‘Permit to Work’, ‘Working at Heights’, Confined Space’ and other training together, 217 and some workshops share bathrooms.218 I have also found that whilst dependent on receiving a work schedule from planners, the Maintenance Employees do so via an application, ultimately trouble solving any work schedule issue with their supervisor – who thereafter liaise with the relevant planner or other department.
[177] Regarding there being a level of integration, I also consider that undeniable. Production Employees perform certain preparatory tasks for work involving Maintenance Employees, they form part of a shut-down team with Maintenance Employees and are also integral to the ‘Permit to Work’ process where the Maintenance Employees, Production Employees, the permit issuer and the permit acceptor all walk through and review the job to make sure equipment is isolated correctly. Maintenance Employees are also dependent on planners to provide their schedule of planned preventative maintenance work.
[178] The Organisational Chart and the evidence of Mr Uebergang and to an extent Messrs Robinson and Christian, also points to a Maintenance Department in which all of the employees ultimately report to a common general manager and a maintenance manager, and some of these employees report to common superintendents. One of the superintendents has direct reports that include maintenance engineers in addition to Maintenance Employees, therefore resulting in a reporting structure where some employees would be agreement covered and some would not – appreciating however, that this the case now with the 2012 Agreement in place. As noted, some planners and reliability engineers are also allocated to each of the workshops, evidence of which was not challenged in cross examination.
[179] The evidence of Messrs Christian and Robinson understandably points to a lack of integration or interaction. The case of the AMWU focuses on establishing the absence of integration, or if any, it being limited, and the Respondent to the contrary. When one considers the authorities on fairly chosen, the approach by both makes sense.
[180] Counsel for the Respondent pointed to Messrs Christian and Robinson providing only a limited picture of the work at the site – representative of only two out of the five workshops. As a consequence, Counsel pressed that their evidence was limited to their own subjective experiences. Counsel also pointed to the opinion evidence relied upon by the AWMU.
[181] Addressing the latter point first, while Counsel is correct to the extent that the narratives of Messrs Christian and Robinson at times bordered and overstepped the boundary between submission, opinion, and relevant evidence, I have given this due regard and noted when little to no weight has been attributed to their evidence or have otherwise not referred to such opinion. The same approach has been adopted when Mr Uebergang speaks of an ‘expectation’. While an expectation may be held, this differs from an indubitable fact.
[182] Concerning the purportedly narrow insights proffered by Messrs Christian and Robinson such assertion cannot be sustained. Mr Robinson has worked at the Smelter for since 2004 when he commenced as an apprentice. 219 He has held multiple roles during that time,220 in addition to interacting with MN01, MN10, MN20 and MN40. Mr Christian does not profess to have a similar longevity in his role, but he has worked at the Smelter as an employee since 2019 and prior to that as a contractor for 18 months.
[183] Have considered the evidence of both the AMWU and Respondent at length, I am satisfied that while there is a degree of organisational distinctiveness in respect of the Group the level of integration so described diminishes that distinctiveness. The integration presented is of sufficient significance that it outweighs those facts that lean towards a finding of organisational distinctiveness.
[184] Whether or not the integration is significant is not necessarily hallmarked by the amount of time spent by employees of different groups or departments working together at the same time, although it will inform part of the consideration. Consideration may also extend to factors such as whether the employees work in a business or part of the business, whether they are organised into shifts, crews, groups, units or the like, where work is performed alongside others, and whether the employees whilst performing fundamentally different duties or parts of a task are nevertheless required to work together on a task to ensure the continuity of an integrated operation – such as a supply chain (and whether there is a temporal nexus regarding when that work is performed).
[185] It is evident that the Maintenance Department is responsible for the continued operation of the plant and equipment at the Smelter, which ensures that the operation of the Smelter is able to continue safely and uninterrupted. The work of the Maintenance Department forms an integrated and integral part of the overall operations of the Smelter. The work performed by other employees, such as the Production Employees, clearly could not continue if the Maintenance Department’s work was not performed. Further, planned preventative maintenance in the form of shutdowns, while not occurring frequently during the year (every six months), nevertheless takes place over a period of 25 days and process operators are normally responsible for isolations, permitting, and gas-testing of confined spaces during that period. 221 Some also became sentries during shutdowns given there was less work to do when the plant was offline.222
[186] Through the course of viva voce evidence accompanied by written witness statements, it became evident that some employees may predominantly operate equipment, some employees may predominantly plan preventative maintenance on that plant and equipment and some employees may physically perform preventative maintenance work in addition to planning and addressing unplanned maintenance work such as breakdowns. I am however satisfied that the production process requires Production Employees and Maintenance Employees to work in close coordination to allow some specific tasks to be completed in their correct chronological order so as to minimize the downtime of plant and equipment.
[187] Expanding upon this point, witnesses for the Respondent and AMWU described several safety critical work tasks including, but not limited to, the ‘JE’ change out, plug and insert change, and the Permit to Work Process, which repeatedly occurred whether daily, twice weekly or every other week. It was evident that a coordinated approach to undertaking this work was required by Production Employees and Maintenance Employees. It should not be inferred that these tasks necessitated Production Employees and Maintenance Employees to work together at the same time, but there was an essential temporal nexus and level of coordination required such that they worked together. In short, there was dependency between the two groups – the Production Employees and the Maintenance Employees. While appreciative of Mr Christian’s evidence that when short staffed the Maintenance Employees would carry out the plug insert and change task of a production operator, the evidence he provided was not suggestive of this occurring regularly. In fact, it was difficult to ascertain how often such short-staffing would occur. 223
[188] It should not however ever be assumed that the interactions between Production Employees (production workers/operators) and Maintenance Employees were limited to the above examples. As mentioned, interactions between the two occurred with certain operators in convertors, acid-handling, and the oxygen plant in circumstances of a breakdown. 224
[189] At this juncture, a further point warrants attention albeit not pivotal to the finding made. A focal point of the AMWU’s evidential case was the limited interactions that Maintenance Employees had with other employees, such as Production Employees and others in the Maintenance Department. Conversely, the Respondent chose to focus on multiple examples where Maintenance Employees interacted with other employees at the Smelter. However, this granular level of interaction is but one manifestation of integration within a broader structure. Integration is not only demonstrated by reference to a particular task that may require employees from different disciplines, subsets, crews, groups, units or departments, to work together to complete it. Where, for example, supervisors are called upon to meet regularly with other departments to plan tasks and arrange shutdowns involving Maintenance Employees and other employees, 225 such as Production Employees, this may also evince a level of integration – which, on the AMWU’s own evidence occurred.
[190] The Maintenance Employees integration with other departments clearly extended to the work of some reliability engineers and planners. Those tasks were undoubtedly important and occurred with a regularity that was not infrequent.
[191] Understandably, there is, in addition, a lack of organisational distinctiveness in respect to matters that might be characterised as administrative in nature. I do not doubt that the Respondent treats all Smelter employees as a single cohort for administrative purposes and have no reason to question the evidence that all employees who comprise the Group are employed under the same template contracts as other employees at the Smelter. In national and multi-national enterprises, it is not unusual to have such matters commonly managed by a whole of business approach, or in this case the whole of Smelter. It is accepted that in some cases, particularly where national and multi-national enterprises are involved, there may be a lack of distinctiveness regarding the provision of shared services such as administration, IT, planning, training, management and the like which are managed at an enterprise level. I do not consider that this type of integration necessarily detracts from distinctiveness in the circumstances of this case. 226
[192] Of course, the scope of the 2012 Agreement covers Process Technicians, Maintenance Technicians, Support Technicians (which comprise Laboratory workers), Apprentices and Trainees employed by the Respondent at the Smelter and the Concentrator. 227 The Respondent argued that organisational distinctiveness could not be made out because of the 2012 Agreement coverage. While the scope of the 2012 Agreement covers Maintenance Employees and Production Employees across those sites, I do not necessarily agree it is a ‘powerful’ indication of an organisationally distinct work group (namely the grouping of Production Employees with Maintenance Employees) although it presents as a relevant consideration. The fact that a particular group was considered by the Commission to be fairly chosen on a previous occasion, however, does not mean that the same grouping will necessarily be fairly chosen in the future, although very often that may be the case.228
[193] As to whether the Group is organisationally distinct, there is some evidence which may point to that being the case. However, there is compelling evidence that the level of integration found outweighs those evidential aspects which might otherwise support a finding that the Group is organisationally distinct. On balance, the evidence before me incontrovertibly demonstrates that there are interdependencies between Production Employees and Maintenance Employees of such importance that the level of integration is significant. It follows that I am not satisfied that the Group is organisationally distinct.
[194] Operational distinctiveness refers to the industrial or productive activity carried out by an employer, and does not refer to the differences in role, skill, task or function of individuals or groups of employees. 229 A finding of operational distinctiveness will be open if the group is involved in an identified industrial or productive activity, and none of the employer’s other employees are engaged in this activity.230
[195] The Respondent illustrated the meaning of ‘operational distinctiveness’ by drawing upon two examples. The first, was that of QGC where the AWU sought a MSD in relation to Plant Lead Operators and Gas Plant Operators who worked in QGC’s gas extraction and processing operations in the Surat Basin in Queensland. At first instance, the Commissioner found that the group of employees was operationally distinct because, inter alia, their functions were distinct and roles discrete from those of other employees at the relevant sites, and they did not work alongside each other. 231 On appeal, the Full Bench criticised this approach, as the relevant ‘operation’ was not the functions or tasks (that is, the work) performed by the employees, but rather ‘the operation and maintenance of gas extraction and processing infrastructure’.232
[196] The second example was the decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd (South32), in which the CEPU had sought a MSD in relation to employees qualified to perform electrical work at a bauxite mine near Boddington, Western Australia and an alumina refinery near Collie in that same state. In South32 operational distinctiveness was distinguished from the performance of a discrete role, task, skill or function. 233 The relevant operation was characterised as the ‘extraction, refinement and export of bauxite’.234 While there was evidence to suggest that the electrical employees worked separately to other employees and undertook different tasks, it was found that this cohort was not operationally distinct in this case because the cohort, along with all other employees, were part of the same vertically integrated bauxite supply chain.235
[197] The Respondent submitted that to the extent that the AMWU asserts that the Group is operationally distinct on the basis that they ‘perform maintenance work’, including ‘maintenance, installation and repair work on the smelter’s machinery and equipment’, 236 such contention was misconceived. Further, stated the Respondent, the AMWU had not adduced evidence as to the nature of the work and the industrial or productive activity in which the Group employees are engaged, other than Mr Hannan’s assertions on the matter.237 The Respondent submitted that there was no rationally probative material before the Commission upon which the necessary comparison could be made, to determine whether the employees within the AMWU’s scope were distinct from the employees outside the AMWU’s scope.
[198] I observe that AMWU added little in respect of argument in relation to operational distinctiveness.
[199] Having regard to the evidence before me, the industrial or productive activity of the Respondent at the Smelter, is the smelting of nickel sulphide or the smelting of the same into export ready nickel matte and metal. The Group forms part of an integrated operation geared toward the aforementioned industrial or productive activity and while the Maintenance Employees undertake maintenance work, they are all involved in the abovementioned industrial activity as links in a larger production chain. I am therefore not persuaded that the Group is operationally distinct.
[200] Whether the Group is geographically, operationally, or organisationally distinct is not decisive. However as noted, it is a matter to be given due weight, having regard to all other relevant considerations. 238
[201] In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors (Cimeco), it was said that what the other relevant considerations are will vary from case to case and the word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. 239 It is also accepted that the selection of the group of employees to be covered by an agreement on some objective basis, is likely to favour a conclusion that the group was fairly chosen.240
[202] It is convenient at this point to note that the Full Bench in Kuhle Pty Ltd v Bus and Coach Drivers Association Inc, 241 acknowledged the necessity to make findings on whether a group was geographically, operationally, or organisationally distinct but cautioned that even if such findings were made, there might be other good reasons to support a conclusion the group was not fairly chosen, or it was not reasonable in the circumstance to make the MSD.242
[203] The AMWU referred the Commission to the decision in Construction, Forestry, Mining and Energy Union v Alcoa of Australia (Alcoa) 243, where observations were made about group selection being prejudicial to productivity or efficiency. At paragraph [71] it was said:
[W]hen considering fairness to an employer of a selected group, there would need to be a clear and cogent case that the selection of the group would be sufficiently prejudicial to the productivity or efficient conduct of an employer’s business, in all the relevant circumstances, to outweigh a presumption that the Commission should facilitate bargaining for an enterprise bargaining agreement where the employees of the group unanimously wish to bargain.
[204] The Respondent observed that the AMWU had placed reliance on Alcoa to propose that the Respondent must demonstrate prejudice to the conduct of its business in order to rebut a presumption that the Group was fairly chosen, and thus a MSD ought to be made. 244 The Respondent argued that this approach was misconceived and operated only where the proposed group demonstrated a unanimous desire to bargain.245 The Respondent next submitted that the proposition was of no relevance in this case.
[205] I am unconvinced that Alcoa stands for the legal principle that where there is a unanimous desire to bargain, a prejudice to the conduct of an employer’s business is required to rebut a presumption that a group was fairly chosen. 246 As was said by the Full Bench on appeal in Alcoa:
[26] Alcoa’s second challenge was that the Commissioner made an error of principle in referring, in paragraph [71] of the Decision (which we have earlier set out), to a “presumption” that the Commission should facilitate bargaining for an enterprise agreement where the employees of the group unanimously wished to bargain. If this was to be read as a reference to a legal presumption, then we accept that this would constitute an error of principle, if not a jurisdictional error. However we consider that, fairly read in the context of the Decision as a whole, the paragraph should not be understood in this way.
[27] The Commissioner had earlier, in paragraph [69], referred to s.171(b) of the FW Act which provides that it is an object of Part 2-4 (in which ss.236-237 are located) to “enable the FWC to facilitate good faith bargaining and the making of enterprise agreements ...”. He had also referred to the decision in Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd in which the Full Bench, in relation to the “fairly chosen” requirement in s.238(4)(c) applying to the grant of a scope order, had said that: “... unless there are factors relating to the fairness and efficiency of bargaining and or demonstrated prejudice to the employer’s business operations that make it more reasonable to accept the employer’s application, notwithstanding the contrary preference of employees, weight should be accorded to the views of the employees.” In the paragraph immediately preceding paragraph [71], the Commissioner stated that the statutory object of facilitating enterprise bargaining and the wishes of a group of employees who propose an enterprise agreement are to be given “some weight” when considering the “fairly chosen” criterion. Read in this context, we consider that in paragraph [71] the Commissioner is to be understood as saying no more than that, in considering fairness to the employer, the unanimous wish of the relevant group of employees to bargain should be given significant weight in the absence of a countervailing case that the selection of the group would be prejudicial to the productivity or efficient conduct of the employer’s business. That is certainly the way in which the Commissioner subsequently approached his analysis in paragraphs [73]-[85] of the Decision. Although the use of the word “presumption” may have been inapt, it does not amount to appealable error. Contrary to the submission of Alcoa, the approach taken by the Commissioner was consistent with the view expressed by the Full Bench in United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (also in relation to s.238(4), including the “fairly chosen” requirement in s.238(4)(c)) as follows:
“[53] ... It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.” 247 (bold my emphasis and citations removed).
[206] It is clear that whilst a good number of the Group voted in support of a MSD, it was not unanimous support and as indicated by the Full Bench in United Firefighters, a proper consideration of legislative matters may ultimately give rise to a decision that sits contrary to the views of the employees potentially affected. 248
[207] Returning however to the essential points, a persuasive case has not been made out that the selection of the group was arbitrary or discriminatory. However, from an organisational perspective, the structure that has been put in place by the Respondent shows that the Group is not organisationally distinct. The manner in which the Respondent has designed its organisational structure to facilitate a coordinated approach in its operations undermines the AMWU’s assertion that the Group is fairly chosen. In short, the work of the Maintenance Employees, and the Maintenance Department at large, is an integrated and integral part of the overall operation of the Smelter. The work of the Production Employees could not continue if the work of the Maintenance Employees was not performed. Furthermore, for the reasons traversed the Group is not operationally distinct or geographically distinct.
[208] As to whether I have concluded the Group was fairly chosen, I observe that the findings made are reasonably open on the evidence. The Group is not geographically, operationally or organizationally distinct and, in my view, there are no other matters at play and certainly no other matters in relation to which evidence has been presented, which could overcome the significant weight to be attributed to these findings. I have therefore concluded that the Group is not fairly chosen.
6.5 Whether it is reasonable in the circumstances to make the MSD
[209] Before a MSD is made, I must be satisfied it is reasonable in all the circumstances to make the determination sought.
[210] At the time when I was examining organisational distinctiveness, I noted the Respondent had drawn support from the 2012 Agreement to demonstrate that the Group was not organisationally distinct. It is uncontroversial that the scope of the 2012 Agreement covers a much broader cohort of employees and covers an additional work site. According to the Respondent the industrial arrangement provided it with significant administrative and operational flexibility and allowed the Respondent to treat at least all of the employees covered by the 2012 Agreement, as a cohesive and interdependent workforce. The Respondent next submitted that this was reflected in the terms of the 2012 Agreement itself, where a number of the key terms and conditions of employment applied indiscriminately to all covered employees, whether they fell within the Maintenance department or within the Production department.
[211] As observed at the beginning of this decision, having taken into account the evidence, submissions, and conclusions reached, including that a majority of the Group wish to bargain and yet that Group was not fairly chosen, and observing that the existing industrial arrangements have been in place for some time and to an extent reflect the interdependence exhibited regarding the interactions between Production Employees and Maintenance Employees at the Smelter, I have concluded that it is not reasonable in all the circumstances to make the determination sought. 249
[212] An Order 250 issues alongside this decision to that effect.
DEPUTY PRESIDENT
Appearances:
Ms Emma Clancy on behalf of the Applicant;
Mr Giacomo Giorgi of Herbert Smith Freehills on behalf of the Respondent.
Hearing details:
8 June 2022 (Video hearing)
Printed by authority of the Commonwealth Government Printer
<PR742100>
1 Statement of Agreed Facts, [1] (SOAF).
2 Witness Statement of Steven Uebergang, [2] (Uebergang Statement).
3 Ibid.
4 Ibid.
5 [2012] FWAA 9691; AE898186; PR531347.
6 SOAF (n 1) [6].
7 Fair Work Act 2009 (Cth) s 237(2)(d) (the Act).
8 Witness Statement of Daniel John Hannan [18]-[19] (Hannan Statement).
9 The Act (n 7) s 237(2)(b)).
10 Uebergang Statement (n 2) [9].
11 Ibid.
12 Ibid [11].
13 Ibid.
14 SOAF (n 1) [4]-[5].
15 Uebergang Statement (n 2) [15].
16 Ibid.
17 Ibid.
18 Ibid [9].
19 Ibid [16].
20 Ibid.
21 Ibid [2].
22 Ibid [16].
23 Ibid [17].
24 Ibid.
25 Ibid [18].
26 Ibid [25].
27 SOAF ( n 1) [7].
28 Uebergang Statement (n 2), [16] – [17], [18].
29 Ibid.
30 Ibid [34] – [39].
31 Ibid [45].
32 Ibid [45(e)].
33 Ibid [45(c)].
34 Ibid [39] – [40].
35 Ibid [23].
36 Ibid [31] – [32].
37 Ibid [32] – [33].
38 Ibid [46].
39 Ibid [6].
40 Ibid.
41 Ibid [44], [47].
42 Ibid [29], [42].
43 SOAF (n 1) [9]; Ibid [42].
44 SOAF (n 1) [8]; Uebergang Statement (n 2) [43].
45 Uebergang Statement (n 2) [27].
46 Ibid.
47 Ibid [21].
48 Ibid.
49 Ibid [30].
50 Witness Statement of Kane Robinson [5] (Robinson Statement).
51 Ibid [6].
52 Ibid [8].
53 Ibid [12].
54 Ibid [9].
55 Ibid [10].
56 Ibid [13].
57 Ibid [14].
58 Ibid.
59 Ibid [16].
60 Ibid [25].
61 Ibid [28].
62 Witness Statement of Phillip Christian [3] (Christian Statement).
63 Ibid [6].
64 Ibid [7].
65 Ibid [10].
66 Ibid [13].
67 Ibid [15].
68 Ibid [16].
69 Ibid.
70 Ibid [17].
71 Hannan Statement (n 8) [6].
72 Ibid.
73 Ibid.
74 Ibid.
75 Ibid [13].
76 Ibid [14].
77 Ibid.
78 Ibid [15].
79 Ibid.
80 Ibid.
81 Christian Statement (n 62) [27].
82 Ibid [28]; Robinson Statement (n 50) [32].
83 Christian Statement (n 62) [28] Robinson Statement (n 50) [32].
84 Christian Statement (n 62) [30] Robinson Statement (n 50) [33].
85 Christian Statement (n 62) [30].
86 Ibid [32].
87 Ibid [33].
88 Ibid [34].
89 Robinson Statement (n 50) [37].
90 Ibid.
91 Ibid [38].
92 Ibid.
93 Hannan Statement (n 8) [25].
94 Ibid [26].
95 Ibid [27] – [28].
96 Ibid [29].
97 Ibid [30].
98 Ibid [32].
99 Witness Statement of Renee Portland [6] (Portland Statement).
100 Ibid [10].
101 Ibid.
102 [2016] FWCFB 8372, [35] - [37].
103 [2019] FWC 2571 [30] - [32].
104 Applicant’s F30 Application 16 February 2022 [1.2.2].
105 Hannan Statement (n 8) [29].
106 Portland Statement (n 99) [10]; Ibid [32].
107 The Act (n 7) s 237(3).
109 [2021] FWCFB 1038 (Inpex No. 2)
110 Ibid [30].
111 Ibid.
112 [2020] FWCFB 5321 (Inpex No. 1).
113 Ibid [11].
114 Ibid [10].
115 (1997) 73 IR 311, 317 (Coal and Allied).
116 Ibid.
117 Ibid.
118 National Union of Workers v Lovisa Pty Limited [2019] FWC 2885, [33] (Lovisa).
119 Ibid.
120 Hannan Statement (n 8) [29].
121 Respondent’s Response to Application 9 March 2022 [16].
122 Ibid.
123 Lovisa (n 118) [55].
124 Ibid.
125 Ibid [56].
126 Hannan Statement (n 8) [27] – [28].
127 Ibid [29].
128 Ibid [32].
129 Portland Statement (n 99) [6].
130 Ibid [10].
131 Ibid.
132 Robinson Statement (n 50) [37].
133 Ibid [38].
134 Christian Statement (n 62) [32].
135 Lovisa (n 118) [62].
136 Ibid.
137 Ibid [59].
138 Application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union [2021] FWC 6489, [20] (the AMWU Case).
139 Ibid.
140 [2014] FWC 6601, [37] (Cotton on), (finding not disturbed on appeal [2014] FWCFB 8899).
141 Lovisa (n 118) [60].
142 The AMWU Case (n 138) “”’[21] quoting CFMMEU v J Blackwood & Son Pty Ltd [2021] FWC 3029.
143 Hannan Statement (n 8) [25].
144 Ibid.
145 Ibid [27]-[28].
146 Ibid [30]; Portland Statement (n 99) [8].
147 Hannan Statement (n 8)[25] - 26, [30]; Portland Statement (n 99) [8].
148 Hannan Statement (n 8)[32]; Portland Statement (n 99) [10].
149 [2010] FWA 5819 (Austral).
150 Ibid [20].
151 Ibid [24].
152 Reply Statement of Daniel Hannan, [15].
153 Hannan Statement (n 8) [30] Ibid [13]; Portland Statement (n 99) [8].
154 AWMU v Veolia [2015] FWC 2561, [34]-[38], citing Coal and Allied (n 115), 317.
155 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd v South32 Worsley Alumina Pty Ltd [2021] FWC 3784 [139] (South32).
156 Ibid [150].
157 Ibid [141], citing Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors [2012] FWAFB 2206 (Cimeco).
158 Inpex No. 1 (n 112) [32], [34].
159 Cimeco (n 157) [10]; Ibid [30].
160 QGC v The Australian Workers’ Union [2017] FWCFB 1165, [42] (QGC).
161 Inpex No. 2[33].
162 QGC (n 160) [42].
163 Ibid.
164 Inpex No. 1 (n 112) [30].
165 QGC (n 160) [47]; United Voice v MSS Security Pty Ltd [2019] FWC 6994, [64] (MSS).
166 QGC (n 160) [47]; MSS (n 165) [64].
167 APESMA v Mt Arthur Coal Pty Ltd [2018] FWC 2008,[26] (Mt Arthur Coal).
168 Inpex No 2 ( n 109) [34].
169 South32 (n 155) [158]-[159].
170 QGC (n 160).
171 [2017] FWCFB 5826, [27].
172 Ibid.
173 QGC (n 160) [44].
174 United Firefighters’ Union v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293, [60] (United Firefighters).
175 QGC (n 160) [44]-[45]
176 Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd (2014) 242 IR 238, [15]; see also Cotton on (n 140)[15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd [2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
177 Uebergang Statement (n 2) [6]; Hannan Statement (n 8), Attachment A.
178 Digital Hearing Book, p37; Hannan Statement (n 8) Annexure DH1.
179 Uebergang Statement (n 2) [26]
180 Ibid.
181 Ibid [21]
182 Ibid [22].
183 Ibid [30].
184 Ibid [23].
185 Ibid.
186 Christian Statement (n 62) [24].
187 Ibid [13].
188 Ibid [14].
189 Robinson Statement (n 50) [20] – [25]
190 Uebergang Statement [34] – [39].
191 Ibid.
192 Ibid [41].
193 Robinson Statement (n 50) [13].
194 Christian Statement (n 62) [9] – [10].
195 United Firefighters (n 174) [60].
196 QGC (n 160).
197 Ibid [45].
198 Uebergang Statement (n 2) [45].
199 Ibid.
200 Robinson Statement (n 50) [9].
201 Uebergang Statement (n 2) [45].
202 Ibid [45(a)].
203 Ibid [45(a)].
204 Ibid [45(b)].
205 Ibid [45(b)].
206 Ibid [45(b)].
207 Ibid [45(c)].
208 Ibid [45(c)].
209 Ibid [45(d)].
210 Ibid [45(e)].
211 Ibid [45€].
212 Robinson Statement (n 50) [19].
213 Christian Statement (n 62) [15].
214 Ibid [16].
215 Ibid.
216 Ibid [17].
217 SOAF (n 1) [9]; Uebergang Statement (n 2) [43].
218 SOAF [8]; Uebergang Statement [42].
219 Robinson Statement (n 50) [5].
220 Ibid [6] – [8].
221 Ibid [14].
222 Ibid.
223 Christian Statement (n 62) [16].
224 Ibid [13].
225 Ibid [14].
226 Cotton On Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899.
227 SOAF (n 1) [10].
228 Inpex No. 1 (n 112) [31].
229 South32 (n 155) [144].
230 Inpex No 2 ( n 109) [36].
231 [2016] FWC 6671, [106].
232 QGC (n 160) [44].
233 South32 (n 155) [167].
234 Ibid [165].
235 Ibid [164].
236 AMWU’s submissions, [37]-[38].
237 Hannan Statement (n 8) [13].
238 Cimeco (n 157), [20].
239 Ibid [21].
240 Ibid [16].
242 Ibid [34].
243 [2014] FWC 7123 (Alcoa).
244 Ibid.
245 Ibid [71], [75]. Note that in this case that, the issue arose for consideration in unique circumstances where the relevant cohort unanimously supported entering into the bargaining process, whereas the employer indicated a strong preference not to do so: [75]-[77].
246 Ibid [71].
247 Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2015] FWCFB 1832.
248 United Firefighters (n 174) [53].
249 The Act (n 7) s 237(2)(d).