[2018] FWCA 7624

This document has been amended to correct a typographical error in the identifying code.

Associate to Deputy President Beaumont

Dated 4 January 2019

Fair Work Act 2009
s.225—Enterprise agreement

Alcoa of Australia Limited
(AG2018/919)

Application for termination of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014.

1 Introduction

[1] On 12 March 2018, Alcoa of Australia Limited (Alcoa) filed an application (the Application) under s 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (the Agreement). 1 The Agreement was approved by the Commission on 10 March 2014, and commenced operation on 17 March 2014.2 It had a nominal expiry date of 31 March 2017.3 The Application was opposed by the Australian Workers’ Union (AWU) who had elected to be covered by the Agreement. The Fair Work Commission (the Commission) made a note to that effect at the time of approving the Agreement.

[2] A hearing was held on 17 – 21 September 2018 after the filing of extensive witness statements and submissions by both parties. Mr Dixon of counsel appeared on behalf of Alcoa, and Mr Crawford represented the AWU.

[3] Regrettably, the reasons for the decision make for a long read. Therefore, from the outset, the parties are informed that I have decided that the Agreement that is the subject of this Application must be terminated because the preconditions in s 226 of the Act are met. I am satisfied that it is not contrary to the public interest to terminate the Agreement, and I consider it appropriate to do so.

Given the length of this decision, and to aid the reader, I have utilised headings throughout, and produce the following index to the reasons for the decision.

2 Witnesses

[4] The following witnesses gave evidence on behalf of Alcoa:

•  Mr Matthew Gleeson, Director of Employee Relations, and Learning and Development (Mr Gleeson);

•  Mr Liam Troy Smith, Maintenance Manager Huntly Mine (Mr Smith); and

•  Mr Justin Fennessy, Whiteside Production Manager, Kwinana Refinery, (Mr Fennessy).

[5] The witnesses for the AWU were:

•  Mr Stuart Lawrence Allen, Bayer process operator in Precipitation, Pinjarra Refinery, and President of the AWU Alcoa Pinjarra Refinery Sub-Branch (Mr Allen);

•  Mr Simon Price, full-time HR Associate (AWU Convenor), Huntly Mine (Mr Price);

•  Mr Chris King, full-time AWU Convenor, Willowdale mine (Mr King); and

•  Mr Nicholas Kamper, AWU National Economist (Mr Kamper).

3 Background and Evidence

3.1 Alcoa’s corporate structure

[6] Alcoa operates one of the world’s largest integrated bauxite mining, alumina refining and aluminium smelting systems. 4 Its main operations in Western Australia involve the mining and refining of bauxite used in the manufacture of aluminium metal. The bulk of alumina produced in Western Australia is exported to smelters around the world, including to the regions of South-East Asia, China, the Middle East, South America, and North America.5

[7] Effective 1 November 2016, Alcoa Inc was renamed Arconic Inc. The new entity incorporated Alcoa Inc’s engineered products and solutions, global rolled products (other than rolling mill operations in Warrick Indiana, and the 21.5% interest in Ma’aden Rolling Company in Saudi Arabia) and transportation and construction solutions businesses. 6

[8] Alcoa Corporation was formed to hold Alcoa Inc’s bauxite mining, alumina refining, aluminium production, cast products, and energy businesses in addition to other operations. 7 Alcoa is owned by Alcoa Corporation and Alumina Limited. Alumina Limited is an Australian resource company with a specific focus on alumina, and the feedstock for alumina smelter.8

3.2 Alcoa’s operations

[9] Alcoa’s operations in Western Australia extend to two bauxite mines (Huntly and Willowdale), which supply bauxite to the three Alcoa refineries (Kwinana, Pinjarra, and Wagerup). There are two dedicated port facilities (Kwinana and Bunbury) and three Alcoa farmland operations (Pinjarra, Wagerup, and Boddington). 9 In addition to Alcoa’s mining and refinery operations in Western Australia, Alcoa operates a smelter in Portland, Victoria.10

[10] It was said that Alcoa has approximately 3800 employees in Western Australia; 2650 in its refineries, and 840 in its mining operations, with the balance spread across farmlands and offices in Perth, Pinjarra, and the Bunbury port. 11

3.3 The workforce and industrial instruments

[11] In addition to the Agreement there are three other agreements in operation at Alcoa namely, the Alcoa of Australia, WA Operations (Mechanical Trades) Agreement, 2017 (the 2017 AMWU Agreement); 12 the Alcoa of Australia, WA Operations (CEPU Electrical Trades) Agreement, 2018;13 and the Alcoa World Alumina Australia, Pinjarra and Wagerup Power Stations Enterprise Agreement, 2014.

[12] The Agreement currently covers the ‘AWU workforce’. Within that workforce there are approximately 1530 employees across Alcoa’s WA Operations at Huntly, Willowdale, Kwinana Refinery, Wagerup Refinery, Pinjarra Refinery, and Marrinup Nursery. The employees covered are members, or eligible to be members, of the AWU employed in the various job descriptions located at Appendices 10 and 11 of the Agreement.

[13] The job descriptions essentially include: 14

[14] The Aluminium Industry Award 2010 (the AIA) has covered (and covers) the employees employed in Alcoa’s Western Australian operations in the classifications in Schedule B of that award.

[15] Alcoa says that the Agreement is no longer suitable. In the proceedings, the AWU drew comparison between their proposed agreement, and the other enterprise agreements covering employees in Alcoa’s Western Australian operations.

[16] Specifically, the AWU drew attention to the 2017 AMWU Agreement, which was approved by the Commission on 25 October 2017. 15 The content was said to be similar to that of the Agreement, particularly the redundancy clauses of the 2017 AMWU Agreement. It was asserted that while Alcoa opposed the roll-over of a no forced redundancy clause in the negotiations to replace the Agreement (the clause was subject to limited exceptions), it had agreed to the condition in the 2017 AMWU Agreement.16

[17] Mr Smith gave evidence that there was a marked difference between the workforce covered by the 2017 AMWU Agreement and that covered by the Agreement. He said that the ‘AMWU workforce’ consisted of mechanical tradespersons, and qualified employees who perform mainly maintenance work. 17 He said it was the case that these employees were easy to redeploy across different locations.18

[18] In contrast, the ‘AWU workforce’ was larger, and sat within three separate streams: process operators (operators in refineries), machine operators at the mines, and trades assistants or service personnel. 19 The streams were not inter-relatable; which meant a lesser ability to redeploy the personnel.20 Mr Smith continued that the ‘AWU workforce’ was, in effect, more heavily impacted by technological changes.21 In respect to the Application, I consider that nothing turns on this point regarding the content of the 2017 AMWU Agreement. Mr Smith provided sound reason for the difference in agreement content, and Alcoa may negotiate the terms of an enterprise agreement to suit the part of its business that is organisationally, operationally or geographically distinct.

3.4 The changes sought by Alcoa

[19] Alcoa submitted that the Agreement was outdated and imposed restrictions, inefficiencies, and unnecessary and unreasonable costs on Alcoa’s operations. 22 Accordingly, the terms of the Agreement did not afford Alcoa the flexibility to adjust its operations quickly and efficiently in order to maximise its ability to extract advantage from prevailing economic and operational requirements, or to respond to changes in market conditions as and when they arise.23

[20] Alcoa identified that the following clauses of the Agreement were no longer acceptable to it (key issues / AWU provisions):

•  Minimum manning (cl 24);

•  Supplementary shift requirements (cl 11);

•  Rates for labour hire personnel (cl 23);

•  Early retirement and redundancy (cl 17);

•  Hours of work and rostering requirements (cl 10);

•  Dispute settlement procedures (cl 19);

•  Disciplinary action requirements (cl 18);

•  Extended paid sick leave (cl 13.4); and

•  Union structures and arrangements (cl 4.5). 24

[21] Over the course of the next several pages an abridged version of the evidence concerning the abovementioned clauses is provided. This background evidence may not appear abridged, but it was voluminous. Relevant headings are used to assist the reader.

3.4.1 Minimum manning – clause 24

[22] Clause 24 specifies the minimum manning number for each of Alcoa’s mines and refineries in WA (with the exception of the Pinjarra Refinery) for 2014, 2015, and 2016. 25 The manning provisions for the Pinjarra Refinery are set out at cl 6 of Appendix 11.26

[23] The minimum manning clauses do not, according to Alcoa, set ‘a hard floor’. Alcoa is permitted to reduce manning numbers below the set minimum in circumstances of ‘major closures or shut downs and subject to no employees taking industrial action’. 27 However, according to Mr Gleeson, whether the minimum manning clauses apply beyond 2016 remains contentious.28 Mr Gleeson stated the clauses had resulted in Alcoa holding more employees than required because the numbers within the Agreement were incorrectly predicted.29

[24] For various reasons, Alcoa says that it is no longer prepared to retain minimum manning obligations. Those reasons are summarised below. 30

•  Alcoa wants to determine the level of manning in accordance with the SELL principle (Safe, Efficient, Legal and Logical), because it is the most productive and efficient way of deploying its workforce and manning levels.

•  The minimum manning does not give Alcoa the flexibility it seeks in setting manning levels to suit particular operational requirements, or changed operational requirements, as and when they arise.

•  Maintaining minimum manning levels limits Alcoa’s ability to contract with third parties or labour hire providers to perform work when it is operationally efficient and cost effective to do so.

•  The minimum manning requirements require Alcoa to retain employees whose services are no longer required.

•  The minimum manning requirements directly impact Alcoa’s ability to take advantage of natural attrition in circumstances where Alcoa is able to operate safely and efficiently with fewer employees.

•  Alcoa wants to avoid disputation about the application of the minimum manning clauses post 2016.

[25] Alcoa holds the view that its operational decision making has been challenged because of the minimum manning requirements. 31 During 2015 through 2017, Alcoa defended proceedings in the Federal Circuit Court regarding allegations it had breached its obligations under the minimum manning requirements at Pinjarra.32 Mr Gleeson’s evidence was that Alcoa did not wish to be in a position whereby its managerial decisions concerning the overall, or specific manning levels for particular parts of its operations were constantly challenged.33 Further, Alcoa had a disinclination to be in a position that it had to defend costly legal proceedings, on pain of penalty, if numbers dropped below a minimum, even by reason of matters outside of its control such as the resignation of employees.34 It was Mr Gleeson’s opinion that the minimum manning clause had undoubtedly led to an increase in costs and unproductive outcomes.35

[26] From an operational perspective, Mr Smith gave evidence that in relation to bauxite mining generally, manning levels fluctuated dependent on factors such as applicable haul distance, bauxite demand, the quality of the bauxite required at any given time, neighbour considerations, topography, and levels of productivity. 36

[27] According to Mr Smith, the minimum manning levels in cl 24 were interrelated with the redundancy provision in the Agreement with the result that any decision to increase workforce numbers must be made in the context of Alcoa’s inability to reduce numbers if required, through forced redundancies. 37

[28] During the course of the proceedings the AWU advanced a number of concessions concerning the key issues. Mr Smith was asked whether he saw any benefit to Alcoa to have a concession such as that outlined in the evidence of Mr Allen. 38 I traverse these concessions in a fulsome manner at paragraphs 215 to 220 of this decision. However, for present purposes it is sufficient to say that the concession offered was one where there would be an absence of the minimum manning numbers in a new agreement, subject to a decision to terminate the Agreement; if the Commission terminated the Agreement, the concession would fall away. Mr Smith’s evidence was that such concession would be of benefit:

[o]nly if it provided Alcoa with the ability to flex its numbers inside its workforce. Just simply saying “we're not going to put a manning number in place” but having things where it doesn't have the ability to increase or decrease its workforce in a timely manner doesn't particularly assist, no. 39

[29] Mr Smith’s view was that the manning provisions in the Agreement precluded Alcoa from:

(a) adjusting manning to meet changing operational circumstances and/or to meet production targets as dictated by the market;

(b) taking advantage of technological advancements including those justifying personnel reduction;

(c) obtaining benefits from outsourcing or insourcing specialist functions, which inevitably impact manning levels;

(d) reviewing the mix and balance of labour in operational departments, and acting on the same; and

(e) responding efficiently and in a timely manner to redesign a mine plan driven by market conditions, and respond to any other prevailing conditions which inevitably impact manning numbers. 40

[30] It was Alcoa’s view that the minimum manning requirements had been a constant source of disputation. 41 Examples where problems have arisen due to the particularisation of minimum manning numbers within the Agreement are set out below.

Huntly dispute

[31] In 2016 the AWU initiated a formal dispute on the basis that Alcoa had not met its minimum manning number at Huntly (the Huntly dispute). Before the dispute was escalated, Alcoa had attempted to reach an agreement with the AWU on a reduced manning number. 42

[32] In late 2015, it was apparent that Alcoa remained under financial pressure partly because of an approximate 40% drop in the alumina price. 43 There was a requirement for Huntly to reduce operating costs; to achieve this, the mine plan was adjusted to reduce the haul distance.44 The reduction in haul distance between the pit and crushers would result in more loads being hauled in the same amount of time, and it therefore followed that there would be an associated reduction in the labour requirements to 270 full time equivalent haul truck drivers.45

[33] However, cl 24 of the Agreement specified that minimum manning numbers were to increase from 270 full time employees to 292 at the Huntly Mine in 2016. 46 Mr Smith understood that the minimum manning numbers in the Agreement were originally determined, in part, by reference to the then predicted mine plan. From an operational perspective, Alcoa did not require 292 haul truck drivers and was therefore obliged to employ 22 employees it did not require.47 Under the Agreement, Alcoa was bound to implement this increase by 1 January 2016.48

[34] Alcoa requested that the AWU defer the increase in minimum manning requirements. A meeting was held between Alcoa and representatives of the AWU on 23 October 2015, and Mr Smith informed them that the increased manning under the Agreement may not be required for 2016. The AWU rejected Alcoa’s request to defer the increase. 49

[35] While further discussions were held at a site level concerning manning, they did not result in an agreement or compromise, and in February 2016, the AWU notified Alcoa of a dispute about the minimum manning at Huntly. 50 Following these developments, Alcoa decided to employ casuals in order to satisfy the minimum manning requirements. However, the AWU did not accept Alcoa’s position that the additional employees could be employed on a casual basis.51 Between early March 2016 and late August 2016, various proposals were exchanged in an attempt to reach an agreement, but no such agreement was reached.52

[36] On 8 September 2016, a Form 10 was lodged with the Commission regarding Alcoa’s alleged non-compliance with cl 24. 53 Ultimately, the dispute settled in December 2016 by Deed.54 Alcoa was, until the dispute settled, required to employ 292 employees, which resulted in the engagement of 22 casual employees in excess of operational requirements.55 Mr Smith calculated that Alcoa incurred an additional spend of $2.61 million as a result.56

[37] In cross examination, Mr Smith was asked whether the agreement to settle the dispute between Alcoa and the AWU regarding manning at Huntly (the settlement allowed Alcoa to employ only 270 employees) assisted Alcoa. 57 Mr Smith responded:

That assisted Alcoa, didn't it?---I would disagree with that statement.

Why?---I believe that at a time when we most needed flexibility, it wasn't provided.  We spoke to the AWU starting in late 2015 to attempt to get relief from that manning clause.  The deed wasn't signed until late 2016 and during that time we have been required to employ that whole suite of additional employees that Alcoa truly believed it didn't need to employ at the time. 58

[38] After the Deed had been signed, Mr Price said that 10 labour hire employees were engaged at Huntly which added to the 22 casuals that Alcoa had already argued they did not need. 59 Mr Price said that labour hire numbers had increased ever since, and at the time of writing there were over 60.60 Mr Price’s view was that haul distances can vary, but not overnight, and ‘these changes are planned well in advance. A mine site such as Huntly must plan years and years ahead’.61

[39] The AWU gave evidence through Mr King that Willowdale had not had its minimum manning level of 126 since 2016; and it was currently sitting at 120. 62 Mr King said that the AWU had not challenged the minimum manning numbers at the site and there were approximately 25 labour hire employees working on crews at Willowdale.63

[40] Mr Price gave evidence that Alcoa management had repeatedly stated their opinion that there was no longer any manning agreement because of the wording in cl 24. 64 Since December 2016 the AWU had not disputed manning levels, even when numbers had fallen below minimum levels.65

[41] According to Mr Smith, if Alcoa’s mining operations were not burdened with the minimum manning requirements contained in the Agreement, the mines would be in a better position to adjust manning levels to meet prevailing operational requirements and market conditions. 66 This statement was, according to Mr King, an exaggeration. He gave evidence that Alcoa were already getting flexibility in terms of the manning level and the use of labour hire at Willowdale.67

[42] It was uncontroversial that external labour was used at Huntly. 68 Mr Price gave evidence that contractors were performing 20-25% of development, blast, production, and rehabilitation work.69 In other departments, Alcoa was using labour hire and engaging casual employees, or alternatively, fitters or apprentices were performing work traditionally done by AWU members.70 In Mr Price’s opinion there were options already in place that allowed Alcoa to increase and reduce numbers based on operational requirements.

Pinjarra refinery manning & Outsourcing of train-loading function

[43] Manning levels for the Pinjarra Refinery are set out at cl 6 of Appendix 11 to the Agreement. That clause provides that the minimum manning number for Pinjarra Refinery is 495, and that during the term of the Agreement, the manning number may be reduced to 470. According to the evidence of Mr Fennessy, cl 6 sets a ‘soft floor’ at 495 and a ‘hard floor’ at 470. 71 Alcoa can only go to the soft floor if it consults with the AWU, and it is unable to go below the hard floor in any circumstances.72

[44] In 2014, Pinjarra Refinery identified that the outsourcing of its train loading function to a specialised rail contractor would reduce costs, and save approximately $400,000 per year. 73 The proposed change would affect seven employees at the Pinjarra Refinery resulting in a reduction in manning numbers from 495 full time employees, to 488.74 The affected employees would be retained and, in due course, would replace other employees exiting the business through natural attrition.75

[45] The evidence of Mr Fennessy was that the matter became protracted when the AWU Convenor for Pinjarra Refinery introduced a demand concerning an employee who was unfit for work, was on a redeployment plan, and faced dismissal. 76 It was said that the Convenor informed Mr Fennessy that the AWU would not agree to the train-loading proposal (and the resultant reduction of manning numbers below the soft floor minimum manning number of 495), unless Alcoa agreed to the AWU demands concerning the unfit employee.77 Alcoa maintained that the issue concerning the unfit employee was separate to the outsourcing matter; notwithstanding, it agreed to a 3 month extension of the redeployment period for the unfit employee.78 Having granted an extension to the redeployment for the unfit employee, Alcoa was of the view that the matter regarding headcount was concluded.79 That view was apparently not shared by the AWU.80

[46] On 31 August 2015, the AWU Convenor raised a dispute in connection with the outsourcing proposal regarding an alleged lack of adherence to ‘the Consultation model’. 81 To the best of Mr Fennessy’s knowledge, an issue with consultation had not been escalated previously. Alcoa denied that it had not complied with its obligations to consult under the Agreement, and Mr Fennessy expressed that he was surprised by the dispute given ‘the Consultation model’ did not apply under the Agreement. Clause 6 of Appendix 11 of the Agreement only required Alcoa to ‘discuss the changes, and the reasons for them’.82

[47] Alcoa embarked on further consultation with the AWU through the month of October 2015, and after a period of more than six months from when Alcoa had identified the proposed changes, those same changes were able to be implemented. 83 Mr Fennessy gave evidence that, had Alcoa not been obliged to consult about minimum manning numbers, and not been subject to the ‘status quo’ restriction associated with the notification of a dispute, these changes could have been introduced in a much more efficient and timely manner.84 The status quo restriction is discussed further at paragraphs 121 to 160 of the decision. According to Mr Fennessy this would have resulted in a cost saving of $100,000, being approximately a quarter of the $396,000 per annum cost saving that the train-loading proposal actually achieved.

[48] Mr Fennessy was asked in cross examination whether Alcoa had ended up outsourcing the train-loading function, he responded:

So the answer is yes, it did end up outsourcing that work?---After a significant delay it did, yes.

Yes, and did that outsourcing deliver costs savings for Alcoa?---Yes, it did.

And that all occurred under the 2014 AWU agreement, didn't it?---Yes, it did. 85

Pinjarra Refinery dispute

[49] Mr Fennessy gave evidence that from October 2014, AWU representatives had agitated to ensure that at all times Alcoa employed a minimum of 495 permanent AWU employees at the Pinjarra Refinery. 86 According to the evidence of Mr Fennessy, the AWU’s position was that, notwithstanding discussions about a reduction of manning levels by seven employees from 495 to 488, Alcoa was obliged to increase its manning levels at the Pinjarra Refinery to 495.87 Once that number was reached, the Agreement allowed (subject to discussion) a reduction to a minimum of 470.88

[50] Mr Fennessy said that the AWU relied upon the ‘status quo’ provision in the Agreement in respect of the reduction of numbers by seven to, in effect, create a highly artificial process requiring an increase to 495 then a reduction to 488. 89

[51] The dispute between Alcoa and the AWU was unable to be resolved and on 16 December 2015, the AWU commenced proceedings against Alcoa in the Federal Circuit Court. 90 Shortly, before the AWU was due to file an outline of submissions, it withdrew the application and filed a notice of discontinuance.91

[52] It was again said that Alcoa did not want to be exposed to proceedings arising from its operational decisions, or decisions by its employees to leave the business, both of which could affect manning numbers. 92

Maintenance transformation exercise

[53] In 2016 Alcoa assessed that it could meet its production targets by re-rostering employees, and reducing the number of hours that employees were required to be at work at the Pinjarra Refinery. 93 Several changes were required as part of the exercise including reduction of hours on shift, days at work, and reduction of full-time equivalent positions.94 The exercise was said to give rise to two important changes;95 a saving of $25,000 per annum, per employee (due to a reduction in shift allowances payable), and a reduction of employees required to perform planned work on weekends when such work could be performed more efficiently on weekdays when engineers and planners were available.96

[54] On completion of the exercise, Pinjarra had 470 AWU employees, but required only 445. The excess employees became part of an operator pool, and maintenance improvement team. The employees had to be retained to ensure compliance with the hard floor minimum manning requirements. 97 When asked whether the changes to shift conditions were made under the Agreement, Mr Fennessy responded ‘[y]es, they were’.98

[55] In April 2016, the Pinjarra Refinery was in the midst of implementing the maintenance transformation exercise. 99 Mr Fennessy was the Manager of OC3P-Precipation, an operating centre of the Refinery that receives green liquor from the Clarification operating centre. OC3P cools the liquor to promote the precipitation of alumina crystals, which is referred to as ‘hydrate’. The OCP3 had approximately 105 full time equivalent employees.

[56] Mr Fennessy said that Alcoa consulted with the two affected crews in relation to the maintenance transformation exercise, including the proposed roster changes, for about six months. 100 He estimated that the ad-hoc meetings would have taken approximately 10-12 hours.101

[57] The ‘go-live’ date for the transition was 11 April 2016, and Mr Fennessy’s evidence was that this information had been communicated to Group Leaders and Mr Allen on several occasions leading up to the date. 102 On the morning of 10 April 2016, 24 hours before the ‘go-live’ date, and after all allocations of employees and re-rostering arrangements had been made, Mr Allen raised a dispute regarding consultation.103 Mr Fennessy rejected the contention that there had been a lack of consultation, but nevertheless met with the Mr Allen and a Mr Willie Hope (Mr Hope) to discuss the alleged dispute.104 The concern raised was discussed and a resolution achieved.105 However, before the go-live date, Mr Fennessy said that he had never been approached by Mr Allen or Mr Hope regarding their concerns which were the subject of dispute, nor about the alleged lack of consultation.106

3.4.2 Supplementary shift requirements – clause 11

[58] Under the Agreement, Alcoa is obliged to offer 5000 supplementary shifts (colloquially referred to as ‘supp-shifts’), per year, across its WA operations, for the life of the Agreement. 107 A supp-shift is a shift allocated to an employee for the purpose of filling gaps in labour requirements. The shift is additional to that which the employee is rostered. The number of supp-shifts that Alcoa is required to allocate is arbitrary, not based on the needs of the respective operations, and, according to Mr Gleeson, is not the most cost effective means of addressing additional work requirements.108

[59] It was submitted that Alcoa was not prepared to have a minimum predetermined number of supp-shifts that have to be offered to its workforce regardless of the need, and cost of doing so. 109 The difficulty for Alcoa was that the supp-shift needs could not be predicted with any suitable degree of accuracy, and it was equally difficult to predict who would be best suited to perform that work in the future.110

[60] Alcoa’s preference was to seek an approach where there was a more flexible and cost-effective supp-shift arrangement that gave it the ability to supplement ordinary hours on a strictly ‘as needed’ basis, including by making use of the contract labour, or labour hire sources where that was more cost-effective and/or efficient in the circumstances. 111

[61] It was said that the cost of the supp-shifts under the Agreement was an all-inclusive rate which proved to be significantly higher than the ordinary rate of pay. 112 That rate was currently 1.7 times the standard base hourly rate for a job grade 10.75.113 Alcoa appreciated that a premium for supp-shift work would, in some circumstances, be warranted. However, it considered the payment of, on average, about 1.5 times the ordinary rate of pay would be in line with the rate in many awards, and in the view of Mr Gleeson, adequate to attract the calibre of labour required.114

[62] Mr Gleeson added that because cl 23 prevented Alcoa sourcing labour hire employees to perform supp-shifts at market rates, Alcoa was in effect driven to offer supp-shifts to its employees at higher costs. 115 It was the case, said Mr Gleeson, that Alcoa wanted the freedom to be able to engage labour hire employees to provide additional labour at market rates as and when required, without having to satisfy the obligation to offer a prescribed minimum of the supp-shifts which required the payment of rates in excess of those of the market.116

[63] Mr Smith acknowledged that some form of overtime was required to fill gaps in labour requirements, and meet peak demands. However, there were unsatisfactory issues with cl 11. 117 Mr Smith gave the example concerning the inability to select a particular operator for a supp-shift. This issue was especially relevant for excavator operators where their performance was said to vary significantly.118 Technology known as ‘Argus’, maps and monitors the performance of the excavators at Huntly.119 In 2017, the average dig rate (in tonnes per hour) of 1013 PC3000 excavator operators fell within a range of 1736 to 2664 per hour.120 Mr Smith said that assuming the excavator operator operates equipment to full capacity for 10 hours on any given 12 hour shift, this essentially meant that productivity differences between the operators could result in production of anything between 17,360 to 26,640 tonnes per shift; a difference of up to 9,250 tonnes per operator, per shift.121

[64] Dozer operators performing work in the rehabilitation function require specific skills and experience that differentiate them from dozer operators working within operations. 122 The rehabilitation function requires operators that can complete tasks such as rolling batters, creating smooth slope, covering rocks, and replacing topsoil.123 I do not profess to know what ‘rolling batters’ is, but am confident that Mr Smith was adequately positioned to recount the work undertaken by these operators.

[65] Mr Smith’s evidence was that when requesting an employee to fill a supp-shift for dozer landscaping, the supp-shift roster only allowed Alcoa to specify the role, in this case, ‘dozer operator’, and not identify the operator by reference to the work performed. 124

[66] Because of the issues concerning supp-shifts, Mr Smith said that he had cause to have a number of discussions with Mr Price about the better allocation of supp-shifts and the designation of particular employees for tasks. 125 According to Mr Smith, Mr Price refused to concede any change to the existing system.126

[67] Alcoa is required to give supp-shifts to all employees, including those who, due to physical restrictions, cannot perform work as effectively as others. 127 Mr Smith’s evidence was that a circumstance had arisen where an employee with physical restrictions was rostered on for a supp-shift on trucks because he was next in line on the roster system.128 However, he could only work half a shift on trucks, and for the latter part of the shift, was moved to operate the crushers; notwithstanding the work demand was on trucks.129 Mr Smith observed that the employee’s work restrictions had the effect of reducing the flexibility of the team working that shift, increased the complexity in managing the shift, and impacted on Alcoa’s ability to meet production targets.130 The situation regarding this particular employee was not contested.

[68] In contrast to Mr Smith’s evidence, Mr Price said the roster system for supp-shifts was based on an offering process; where a specific skill was required, the roster was adjusted. 131 The crews ensured that they had people with the licences and skills required by adjusting the roster rotation, and this in turn ensured everyone was offered supp-shifts fairly and equitably.132 Mr Price said that the AWU employees at Huntly manage the supplementary shift rosters.133 At Huntly, according to Mr Price, on any one shift there would be approximately 35-40 production/rehabilitation employees rostered on with a complete range of skills required to perform all tasks.134 Further, Mr Price disagreed with Mr Smith’s evidence that Alcoa was obliged to provide such shifts to employees with physical restrictions because Alcoa had placed a ban on employees performing supp-shifts if there were medical restrictions.135

[69] Disputes over supp-shifts only arose, said Mr Price, when Alcoa attempted to bypass the roster system. 136 In response to Mr Smith’s observation that whilst at Huntly, employees had approached him from different work groups in the same department to complain about another work group being allocated more supp-shifts, Mr Price said that there was a system of prioritising crews. Mr Price gave the example whereby the system was being bypassed by giving trainers the supp-shifts (on different job grades and job descriptions) in front of operators who were missing out.137

[70] Mr Allen said that the AWU had agreed, subject to a decision to terminate the Agreement, that under the new agreement, Alcoa could offer supp-shifts at its discretion subject to operational needs. 138

3.4.3 Rates for labour hire personnel – clause 23

[71] Mr Gleeson gave evidence that from time to time Alcoa made use of labour hire employees to cover absentees, and for addressing particular operational needs. 139

[72] Broadly stated, Mr Smith’s evidence was that cl 23.1 required Alcoa, in respect of labour sourced through a labour hire company, to pay 78% to 100% of the hourly base rate of pay for the relevant job grade of an Alcoa employee. 140 Plus there was an additional loading of 25% on those rates of pay regardless of the employee’s employment status with their employer.141

[73] Mr Fennessy’s evidence, similar to Mr Smith’s was that the specified hourly rate for labour hire was between 78% and 100% of the hourly base rate for the applicable job grade, depending on the length of the labour hire employee’s continuous service with Alcoa. 142 In addition to this hourly base rate, the labour hire employee was paid the equivalent of the applicable annual shift premium payment for an Alcoa employee performing work in the same job grade, and working the same shift arrangements.143 Additionally, a loading of 25% on the rates of pay applicable under clause 23.1(a) was payable, irrespective of whether the labour hire employee was a casual employee or not.144

[74] Mr Gleeson’s view was that the obligation in cl 23 made the utilisation of labour hire more expensive than would otherwise be the case because clause 23.1 imposed a cost that was greater than market rates. 145 According to Mr Gleeson this was no longer acceptable to Alcoa, which wanted the ability to make use of labour hire employees at competitive rates.

[75] Mr Smith gave evidence that at Huntly, labour hire was a tool used to balance the peaks and troughs of Huntly’s labour requirements. 146 Labour hire requirements at Huntly differed from month to month across the year, depending on the mine’s operational requirements.147 Alcoa’s export contracts were said to be of limited duration which in turn meant that Alcoa required the ability to ‘flex up’ and ‘flex down’ its workforce to meet export demands.148 Mr Smith expressed that given the restrictions on forced redundancies, if Alcoa was to supplement its workforce with additional permanent employees, and export demand decreased or Alcoa lost an export contract, it would not be positioned to decrease employee numbers.149

[76] With regard to the Pinjarra Refinery, Mr Fennessy said that for the most part, for service persons, replacement labour hire employees were engaged for the purpose of filling short-term absences. 150 While two types of a AWU employees worked within the Pinjarra Refinery – Bayer process operators, and service persons – the use of labour hire was limited to service person replacement because the Bayer process operators were experienced and knowledgeable, which therefore required any labour hire employee to have had substantial training to replace them.151

[77] However, according to Mr Fennessy, Alcoa generally used Alcoa employees on a supp-shift basis to replace absent employees because of cl 23. 152 It was Mr Fennessy’s view that if labour hire employees could be sourced at market rates, they would become a more cost-effective option, and could perform works currently being performed by Alcoa’s employees through supp-shifts.153

[78] With regard to the use of labour hire at the Kwinana Refinery, Mr Fennessy gave evidence that the Kwinana Refinery did, and could, make reasonably extensive use of labour hire to cover long-term absences such as long service, or extended sick leave of both Bayer process operators, and service persons. 154

[79] Mr Fennessy considered that there was a benefit to Alcoa, and also its workforce, in engaging labour hire to perform subsets of the Bayer process operator’s role at the Kwinana Refinery. 155 For example, cleaning up underneath Precipitation, and launder descaling, which is generally considered basic, unskilled, and undesirable work.156

[80] By way of illustration, Mr Fennessy gave evidence of a quotation he had obtained for a bobcat operator on market rates, compared to the labour hire rates that Alcoa was obliged to pay under the Agreement. 157 The quote that had been received in October 2017 was for a bob cat operator on an hourly rate of $28-$35 compared to an Alcoa job grade 10 operator, which attracted an hourly rate of $73.21.158

[81] The view of Mr Fennessy was that Alcoa’s ability to obtain the benefits of sourcing labour from labour hire providers was further indirectly affected by the provisions concerning minimum manning, and restrictions on terminating employment of those employee’s whose positions had become redundant. 159

[82] It was the evidence of Mr Allen that the AWU had agreed, subject to a decision to terminate the current agreement, to changes in the current labour hire provisions. 160 Those changes were that:

•  Alcoa would not have a mandatory obligation to advise the AWU about the use of labour hire, but must provide details to the AWU upon request;

•  there would be a reduction in starting rates for labour hire to market rates for the first six months;

•  Alcoa would be able to arrange competitive tenders for work to be outsourced subject to providing certain information to the AWU; and

•  the status quo provisions in the disputes procedure would not apply to disputes about Alcoa’s use of labour hire. 161

3.4.4 Early retirement and redundancy – clause 17

[83] Mr Gleeson said that Alcoa was restricted in the manner in which it was able to deal with situations where a position had become redundant and it sought to reduce the size of its workforce as a result. 162

[84] Clause 17 prohibited compulsory redundancies and imposed an obligation for the ‘parties’, which relevantly included the AWU, to agree the terms upon which voluntary redundancies may be offered at any point in time. 163 Mr Gleeson said that Alcoa accepted it was reasonable for there to be a mechanism whereby employee numbers could be reduced on a voluntary basis.164 However, Alcoa wanted the ability to determine the correct employees and to make offers of voluntary retirement to specific categories of employees.165 Alcoa acknowledged that compulsory redundancies would be a last resort, but Alcoa must have the ability to do so.166

[85] The changes to cl 17 also included the provision of flexibility to reduce numbers in particular areas, or work groups, without having to manage the entire employee population by redistributing labour into other parts of the organisation. 167 That redistribution was said to involve retraining even when not necessary.168 Clause 17 gave rise to negative productivity consequences and cost implications.169

[86] The voluntary early retirement arrangement (VERA), which Alcoa characterised as a ‘retirement package’, was an arrangement that Alcoa was not prepared to continue with. 170 It was said that the agreement of the ‘parties’ was required, and could be linked to other demands including an ability for the AWU to nominate persons eligible for VERA packages on the basis that the longest serving employees are afforded preference in relation to the offers made.171

[87] In response to Alcoa’s concerns, Mr Allen stated that the AWU had, subject to the decision to terminate the Agreement, agreed to various changes to the current redundancy provisions to appease Alcoa. Those changes were:

•  voluntary redundancies at Alcoa’s discretion subject to consultation;

•  cap on redundancy pay of 80 weeks applicable to voluntary redundancy payments if the employee who volunteered was not directly affect by the relevant organisational change; and

•  forced redundancies permissible subject to first seeking volunteers and not utilising contractors to perform the work of the forcibly redundant employees. 172

3.4.5 Hours of work and rostering requirements – clause 10

[88] It was Alcoa’s position that cl 10 of the Agreement was too prescriptive and did not give Alcoa the flexibility to utilise its workforce for the efficient and productive performance of work. 173 Clause 10.1 included constraints around start and finish times between which the average of 36 hours could be worked.174

[89] According to Mr Fennessy’s evidence cl 10 provided, in short:

•  (cl 10.1) except for employees working a 10.3 hour shift roster, ordinary hours of work will be an average of 36 per week to be worked on not more than five days in periods of eight continuous hours (except for a meal break) between 7:00am to 8:00am on Monday to Friday;

•  (cl 10.2(a)(i)) the spread of hours and the start and finish time of such shifts may be temporarily altered to meet the planned operational needs of the business, on the giving of 96 hours’ notice, and with the agreement of the affected employees; and

•  (cl 10.2(a)(ii)) in the event that such agreement is not reached, the matter may be referred to the Fair Work Commission for determination. 175

[90] Alcoa cited that the restrictions were mainly those set out in subclauses 10.2 (a) and (b), which provided that in the event that the employees and/or the AWU are not prepared to agree to any temporary or permanent change, the matter was to be determined by the Commission having regard to a range of circumstances and prescribed considerations, including direct financial impact, lifestyle impacts, and so on. 176 This, according to Alcoa restricted management’s discretion to give primacy to operational issues and the overall needs of the business.177 By virtue of subclause 10.3(b), the same restrictions applied in relation to shift workers.178

3.4.5.1 Hours of work – clause 10

Temporary changes

[91] Mr Smith gave an example of how the restriction concerning temporary changes limited Alcoa’s ability to make beneficial temporary adjustments to start times. With regard to the Blast crew, Alcoa required, from time to time, one crew member to start an hour earlier when the Blast crew was scheduled to start loading blasting holes first thing in the morning. 179 This member of the team picks up the blast accessories that are housed some distance from the Blast crew’s actual work location.180 If an employee is not willing to start earlier, there is time wastage associated with between six or eight members of the Blast crew having to wait while the blast accessories are retrieved at the start of shift.181

[92] Dust suppression is often required on haul roads given that unsprayed haul roads can result in a reduction of speed to as low as 20km an hour (normal haul road speeds are 50km per hour). 182 When dust is an issue, the roads are sprayed before production operators commence shift at 7:00am.183 Alcoa requires a water cart operator to commence shift approximately one hour before 7:00am. If an employee is not willing to start early when requested, and as a consequence, the water cart operator starts work with the remainder of the Production crew, it can impact on productivity and the safety of operations.184 Mr Price observed with regard to the dust suppression issue that Production and Development crews worked 24/7 rosters.185

[93] Mr Smith’s evidence was that to achieve earlier start times, Alcoa needed the agreement of employees in respective crews. 186 If there were no volunteers then labour would be taken from other tasks, additional labour would be sourced through supp-shifts or labour hire, or a slower start to the shift would occur.187

[94] Mr King gave evidence that the shift time for Willowdale Blast was 5:45am and not 6:00am. The reason for this was to enable production to start up before the Production crew commenced. 188 The float operator was said to come in at 5:00am to move equipment and set up ready to go. Mr King said ‘our site is totally flexible in all departments including splitting crib times to improve efficiency’.189

Mr Price’s evidence was that employees had already voluntarily agreed to change start times, for example 5:30am and 6:00am starts of Production and Blast crews. 190

Permanent changes

[95] Permanent changes to hours of work are governed by cl 10.2(b), which restricts Alcoa from implementing change unless it obtains agreement of the affected employees. 191 Mr Smith’s evidence was that he would consider aligning start times of crews working in the same areas to eliminate the necessity for a Group Leader to hold two pre-starts within 20 minutes of each other.192
[96] By way of example, the Light Vehicle Workshop employees commenced work at 7:00am whereas the Auxiliary Workshop employees commenced at 6:40am. 193 Mr Smith’s view was that it would be more effective and efficient to have a single start time for the two crews particularly with regard to safety as the crews work in the same area and interact on a regular basis.194 Mr Smith said that he had raised the issue with the two groups on various occasions, and more formally had requested the issue be raised again in February 2017 by the Group Leaders of the respective crews. The feedback reported to Mr Smith was that the respective employees did not want to commence work 20 minutes later or earlier.195 Mr Price gave evidence that the AWU had proposed a 10.3 hour day shift to eliminate supervision issues, and improve productivity.196 There was no evidence regarding when the proposal was made, or who proffered it on behalf of the AWU.

[97] It was said that associated with these above-mentioned operational restrictions in connection with hours of work, was the restriction in subclause 6.8. This subclause required an employee to work any additional time that was necessary to efficiently and fully undertake her or his job. However, the AWU or the employee could dispute any request with the result that the status quo must be maintained. 197

[98] Mr Gleeson said that Alcoa wanted the ability and discretion to change the spread of hours of employees, on notice, without the need for agreement of each of the employees affected. 198 The flexibility sought included directing employees to start early, work back or to stagger shifts for particular maintenance events;199 and extended to not having to secure the agreement of the affected employees, or the AWU where the change was permanent. Further, the ability for ‘change of hour’ issues to be put into dispute with the associated status quo consequence was something Alcoa wanted removed.200

3.4.5.2 Shift rosters and patterns – clause 10

[99] Alcoa sought the ability to move employees across shifts to ensure that resources were balanced, or to provide a better performance outcome, without needing to obtain the employees agreement to such a course. 201 Further, Alcoa sought the ability and flexibility to introduce new rosters following appropriate consultation, but without the need to obtain the consent of the employees or the AWU.202

[100] Mr Smith gave evidence that there were two primary issues in relation to the clauses in the Agreement governing changes to shift rosters and patterns as they affect mining. 203

[101] The first issue, according to Mr Smith, was that Alcoa and the AWU were not in agreement as to how the clause operated, and what it implied. 204 Alcoa held the view that it could set shift patterns in line with cl 10.3(g), and that a change to a rostered shift required only 48 hours’ notice in line with cl 10.3(a)(iv).205 The AWU had taken the view that any changes to shift patterns or rosters must be by agreement pursuant to cl 10.3(a)(iii).206 The differences in view had given rise to disputes, including a dispute referred to as the D-crew re-roster dispute, and the roster change disputes at Huntly, and Willowdale.207

[102] Mr Price’s evidence was that he was unaware of any disputation about cl 10.3(a)(iv) and 10.3(g). 208 Mr Price said that cl 10.3(a)(iv) defined what a rostered shift meant, and referred to established rosters. The clause operated, such that Alcoa could give 48 hours’ notice to temporarily change employees between established rosters or, as they were often referred to, shifts or panels.209

[103] Mr Smith said that the second issue was that the Agreement was more restrictive than the 2017 AMWU Agreement. 210 It followed that where AWU and AMWU employees were required to work in tandem to perform essential work, outside of their ordinary hours, efficiency was impacted where AWU employees did not agree to align their hours with AMWU employees.211

Disputes about changes to roster or shift patterns – Willowdale and Huntly

[104] In early 2016, following a period of consultation, Alcoa sought to implement changes to shift patterns and rosters at both Willowdale and Huntly Mines. 212 The changes arose from Alcoa seeking to improve efficiencies and reduce costs in response to the change in the state of the market.213

[105] At the Huntly Mine, Alcoa decided to change the shift pattern and rosters of fixed plant employees from 10.3 hour day shifts (including weekends) to three 12 hour days (week days only). 214 At Willowdale, the changes to shift patterns and rosters were for a broader group of employees and involved various changes.215

[106] The changes at Huntly were considered beneficial to Alcoa because it allowed for the maximisation of labour during fixed plant maintenance shifts. 216 On the new shift pattern, both crews in Fixed Plant Maintenance would work on the production down days, which meant there was double the labour to perform fixed plant maintenance on days when the system was down for maintenance.217 Before the change there had been two crews working on only one of the non-production down days. The changes increased the effective tool time per employee on maintenance shifts.218

[107] The new shift pattern at Huntly meant the employees transitioned from working shift work, as they worked some weekend shifts, to a roster involving three days of 7.00am to 7.00pm in the period from Monday to Friday. 219 This meant that fixed plant maintenance employees did not attract as much shift allowance resulting in savings for Alcoa of approximately $20,000 per employee, per year, and that the employees did not accrue an additional week of annual leave.220

[108] At Willowdale, efficiencies were achieved by ensuring that hauling no longer occurred on production down days, employees worked less on the weekend, and had fewer night shifts, thereby reducing shift allowances. 221 A move from five panels on the roster to four panels in Production involved a reduction of the equivalent of eight full time employees with estimated savings of $1.8 million.222

[109] Alcoa took the position that after appropriate consultation, it was entitled to make the change to the shift patterns under cl 10.3(g) and that the changes did not fall under those contemplated by the second part of cl 10.3(g). 223 According to Alcoa, the process set out in cl 10.3 for transitioning employees to the new shift did not need to be followed.224 Further, Alcoa held the view that the changes could be made without the consent of the AWU.225

[110] On 12 July 2016, some six days before the new rosters would take effect, the AWU disputed the proposed new roster. 226 The disputes were unable to be resolved in the first three stages of the dispute resolution procedure, and the AWU escalated the disputes to the Commission.227 Conciliation conferences followed and a resolution was reached without recourse to arbitration.228

[111] However, Alcoa’s view was that the concessions made to resolve the dispute were made only in order to try and expedite the implementation of the roster changes on business grounds. Alcoa expressed that but for the fact that there was the status quo, and the delays associated with it, Alcoa would not have made the concessions. 229 Those concessions included the provision of shift protection payments for affected employees until the nominal expiry of the Agreement.230

[112] In addition to the shift protection payments, Alcoa agreed that the AWU could raise a new dispute in relation to the amount of annual leave the transferring employees would be entitled to. Alcoa considered that the annual leave entitlement of the transferring employees would be four weeks, in contrast to the AWU’s position of five weeks. 231 Again, no resolution was reached through the dispute resolution procedure, and the matter was escalated to the Commission. Conciliation resulted in the dispute application being discontinued.

[113] While the aforementioned disputes were resolved, Mr Smith’s evidence was that the disputes consumed a large amount of employee and management time. 232 They required attendances before the Commission, and the disputation impacted Alcoa’s ability to implement changes, which it regarded as necessary, including for work groups impacted by the changes, but not covered by the Agreement, such as the employees covered by the 2017 AMWU Agreement.233

[114] Mr King’s evidence was that there had been no dispute on start and finish times. He gave evidence that the AWU members normally changed very quickly when asked by management, and members had a range of different start and finish times across the site. Further, Mr King questioned how Mr Smith could give evidence about the Willowdale site and changes to start and finish times when he was not there during the relevant periods. 234

[115] With regard to disputation over the roster change, Mr King refuted what was said by Mr Smith stating that ‘we totally restructured the site in three months total and was thanked by management for being so supportive’. 235 Although, it is apparent from Mr King’s evidence that disputation did occur regarding the five weeks of annual leave taken off by certain crews,236 according to Mr King there were grey areas in the Agreement in this respect. Mr King gave evidence that the shift protection payments were an idea conceived by the Alcoa Operations Manager, Mr Ben Robinson, as about 15 employees were to lose around $12,000.237 According to Mr King there was a shift protection provision that was funded by the AWU, and it was therefore jointly agreed to ‘look after’ the 15 employees.238

[116] The status quo provisions of the Agreement were not utilised, according to Mr King, and the five weeks of annual leave did not hold up any 4-panel restructure. 239

[117] As far as Mr Price was concerned the issue in dispute was not the changing of the shift, per se, but how night shift would be covered, and the leave entitlement of 4 or 5 weeks. 240 Mr Price said that the new roster was not the issue, but the conditions surrounding it were.241

Inflexibility of the Agreement in comparison with the 2017 AMWU Agreement

[118] To meet its operational requirements, Alcoa wants to be able to adjust rosters upon notice and following consultation, as is presently the case in respect of employees covered by the 2017 AWMU Agreement. 242 However, Alcoa held the view that cl 10.3(a)(iii) resulted in it not having the flexibility, without agreement between the ‘parties’, to move shift workers from one rostered shift to another in order to address operational requirements.

[119] In ordinary maintenance operations, employees covered by the 2017 AWMU Agreement and the Agreement are required to work in tandem. 243 It follows that not having flexibility in relation to a temporary roster change for both groups of employees can lead to inefficiencies.244 Mr Smith gave the example where employees covered by the 2017 AMWU Agreement were directed to work night duty instead of day duty in circumstances of a shut down for maintenance work.245 The direction to work night duty ensured that the stoppage was minimised as the maintenance work could occur around the clock.246

[120] Mr Smith stated that the AWU’s interpretation of cl 10.3 of the Agreement was such that a similar direction could not be given or implemented without the agreement of employees covered by the Agreement. 247 Absent agreement of the AWU employees, the likely result would be insufficient trade assistants working night shifts during the shutdown. It was said that this would impact negatively on performance of certain critical steps routinely scheduled to occur during the night, with a resultant increase in the risk of production being stopped for a longer period.248

3.4.6 Dispute settlement procedures – clause 19

[121] Clause 19 of the Agreement sets out a sequence of five steps that the parties must follow if a grievance or dispute arises. 249 Clause 19(b) requires that while a grievance or dispute progresses through the sequence of steps, the ‘normal conditions/arrangements in existence immediately prior to the cause of the dispute arising’ (status quo) must be maintained.250

[122] Mr Gleeson’s evidence was that the dispute settlement procedure at cl 19 was significantly broader and more restrictive than the model dispute resolution procedure in the Act. 251 It covered ‘all disputes’, which necessarily extended to disputes about the application and interpretation of the Agreement, the National Employment Standards (NES) and any other dispute.252

[123] Mr Gleeson stated that part of his role was the overview of disputes. As such, he was aware of major disputes that impacted all locations, disputes with significant disciplinary ramifications for the employee, and disputes relating to the interpretation of the Agreement. 253 Mr Gleeson expressed that the procedure was cumbersome, time consuming, and restricted Alcoa’s ability to implement change; particularly because of the status quo provision. The clause, in Mr Gleeson’s view, contributed directly to the number of disputes that Alcoa was required to deal with.254

[124] The breadth of the clause was illustrated by Mr Gleeson’s example where Mr Price, raised a dispute concerning the size of his office at the Huntly mine. Given the content of cl 19, the Commission had jurisdiction to determine the issue. 255

[125] The status quo provisions have a significant impact on the manner in which Alcoa is able to deal with day to day matters, or any proposed change. The provisions were said to apply automatically if any matter was put in dispute, irrespective of its importance or consequences. 256

[126] Mr Gleeson’s evidence was that in practice, the clause prevented, or more generally delayed, reasonable actions required in the business. 257 At the instance of an employee, delegate, or convenor, a grievance or dispute being raised, even at the lowest level of the process, required matter to be placed on hold.258

[127] Mr Gleeson gave two examples in which there was a significant and unwarranted delay. He pointed to a dispute at Pinjarra in relation to the application of a Commission decision about completing Daily Visual Management boards in the residue area. 259 According to Mr Gleeson, two Commission conferences were required in addition to the three months spent attempting to resolve the matter.260 A further example was where members refused to train staff for business continuity purposes.261 The dispute was escalated to the Commission for conciliation, and was then discontinued some five months after first being initiated.262

Production D-crew re-roster dispute

[128] Mr Smith’s evidence included an example of the operation of the status quo delaying a short term operational change. 263 In 2016, Mr Smith sought to re-roster employees in advance of a fixed plant shutdown at Huntly.264 This shutdown was scheduled over eight shifts from 15 February 2016 to 19 February 2016 to allow the replacement of a conveyor belt.265 Shutdowns are critical to allow preventative maintenance and ensure ongoing stable operations.266 They are planned months in advance, and must be completed within designated time frames to minimise interruption to both mine and refinery production.267

[129] According to Mr Smith, it was customary when a shutdown was planned, to re-roster some of the production crew who were rostered to work during the shutdown, to shifts prior to the shutdown. 268 This step allowed the re-rostered employees to assist in making up for the production shortfalls which would occur during the shutdown.269 The increased volume of employees in advance of the shutdown would maximise the movement of ore from the mine to the refineries, thereby increasing bauxite inventory at the Pinjarra and Kwinana Refineries in advance of the shutdown.270

[130] A review of the production inventory was conducted in preparation for the February 2016 shutdown. This review identified that additional shifts were required to meet inventory targets. 271 Mr Smith proposed that production D-crew would work day shift on 25 January 2016, instead of their rostered night shift on 17 February 2016 when the shutdown would be in effect.272 Mr Smith said that he took the position that the proposed re-roster was permitted within the terms of the Agreement, because he was giving more than 48 hours’ notice as required by cl 10.3(a)(iv).273

[131] On 18 January 2016, Mr Smith was advised that an AWU Delegate for D-crew had placed the D-crew re-roster in dispute. 274 It was the case that a number of members in D-crew were not prepared to accept the re-roster as they had made other plans for 25 January 2016.275 However, they were able to come in on 25 January 2016 if the re-rostered shifts could be worked as supp-shifts.276 The working of supp-shifts would mean a higher rate of pay would be incurred.277

[132] On 20 January 2016, in response to Mr Smith’s email confirming that D-crew would be required to work on 25 January 2016 as instructed, Mr Price communicated that the D-crew re-roster was disputed on the basis that it was not a proposed change covered by cl 10.3(a)(iv) and that, as such, there was no capacity for Alcoa to re-roster the D-crew to 25 January 2016. 278

[133] A discussion was held between Mr Smith and Mr Price on 20 January 2016 to clarify the basis for the dispute. Mr Smith told Mr Price that Alcoa had an established practice of using cl 10.3(a)(iv) as a basis for implementing temporary re-rosters, and the work should be performed as requested. 279 Mr Price’s view, however, was that the agreement of AWU employees was required.280 The status quo had to be preserved pending the resolution of the dispute.281 Mr Smith formed the view that it was unlikely there would be a resolution of the dispute before 25 January 2016. Given several employees indicated that they were unavailable to work, and acceptance of supp-shifts was voluntary, Mr Smith’s evidence was that he had to find an alternative solution.282 Alcoa engaged a contractor to cover the shift and carry out the necessary work at a cost of $61,378.80.283

[134] Concerning the D-crew dispute, Mr Price said that Alcoa had wanted the crew to drop off a night shift and work a day shift. 284 Mr Price said the crew thought that insufficient notice had been given, and that the change meant that the employees’ rostered days off break would be interrupted and shortened.285 The problem appeared to be, that a number of employees had booked trips to Bali during their break and had already paid for their flights so they could not do the shift swap.286

[135] Mr Price said that D-crew was provided with about 5 days’ notice and they were informed it was a direction, not a request. 287 Mr Price held a view that reference was made to the working of supp-shifts because only some of the crew could physically do the shift, and they would require supplementary employees to get a full crew.288

Proposal to temporarily transfer cadet

[136] A cadet program was introduced at Willowdale and Huntly in around 2010 to provide non-staff employees with the opportunity to work in a ‘staff’ role, such as supervisor position, for a period of six months. Employees selected were considered by Alcoa to have potential and good prospects of progressing to more senior roles within the business. 289 The program ran at Alcoa’s discretion and, come 2016 was suspended because of an oversubscription of employees to the program.290 This meant that a sufficient number of employees had completed the program, and could therefore fill a supervisory position if a vacancy arose.291

[137] In February 2017, Alcoa wanted to move a cadet who was acting as a Supervisor at Huntly at that time, to Willowdale, to fill in for the unplanned, short term absence of a Supervisor who had unexpectedly had to undergo emergency surgery. 292 Mr Smith was informed by the Operations Manager at Huntly that a cadet who had previously worked at Willowdale had volunteered for the transfer.293

[138] The AWU took the position that because Alcoa discontinued the cadet program at Willowdale in 2016, Alcoa could not make use of Huntly’s cadet regardless of the circumstances. 294 Therefore, the transfer of the cadet was placed into dispute and the status quo was required to be maintained. This necessitated the cadet remaining at Huntly and alternative arrangements being made for Willowdale.295

[139] The dispute progressed to stage three of the dispute resolution procedure, although, the transfer of the cadet was no longer in issue; 296 the focus of the dispute was the suspension of Alcoa’s discretionary cadet program at Willowdale.297 The matter was resolved on the basis that Alcoa would cover any future staff absence by seconding an employee who had previously completed the cadet program at Willowdale into the role. In effect, Alcoa would not place on secondment a current Huntly cadet or employee who had completed the cadet program at Huntly, to a Willowdale position to cover a staff absence.298

[140] In Mr King’s view, the cadet dispute arose because Alcoa suspended the cadet program without any consultation as required by the signed agreement, which, according to Mr King, said that either party must give two weeks’ notice if the program was to be stopped. 299 This did not occur, and Mr King said Alcoa just ‘canned it’.300

[141] It was the case, said Mr King, that when Alcoa wanted to bring a cadet from Huntly to fill the Willowdale role some months later, Mr King argued that it should be a Willowdale cadet. 301 Alcoa’s response was that Willowdale no longer had cadets, and Mr King said that he suggested that if anyone should be seconded to staff, it should be a previous Willowdale cadet, but Alcoa rejected the idea. Mr King said that Alcoa was being difficult and he was trying to help.302 He had no option but to dispute it, but it was Alcoa that dragged the issue out.303

Uniform policy dispute (C2015/5714 and C2015/7869)

[142] In April 2015, Alcoa sought to introduce a uniform policy. Mr Smith, as the Superintendent at Huntly, assisted with its introduction at the mining locations. 304 Prior to the introduction of the Uniform Policy, employees could wear anything they wished as long as certain safety requirements were met.305

[143] The Uniform Policy set out the minimum clothing standard at the mining operations both generally, and for each work area. 306 Alcoa’s initial intention had been to introduce a requirement for all mining employees to wear high visibility long sleeved shirts, and trousers. During consultation Alcoa agreed to amend the Uniform Policy to allow employees to wear shorts (if not contrary to safety requirements for the particular position), and jeans.307 A Memorandum of Understanding was signed to this effect, and would operate for the life of the Agreement.308

[144] The implementation and roll out of the Uniform Policy occurred during the period January 2015 through August 2016. 309 In early 2015, Alcoa notified employees that compliance with the Uniform Policy would be mandatory from 31 March 2015.310 The AWU Convenors at Willowdale and Huntly, Mr Price and Mr King, took the position that they would not conform to the Uniform Policy, and would continue to wear their shirt branded with the AWU logo.311 The clothing worn by the AWU Convenors generally consisted of short sleeved polo shirts branded with union logo and pants.312

[145] The AWU Convenors asserted, in essence, that the ‘2005 Arrangements’ – referred to in cl 4 of the Agreement – entitled them to a continuation of the ‘existing arrangements’. Alcoa repeatedly directed the AWU Convenors to comply with the Uniform Policy, but they did not. Alcoa disputed their refusal (the Policy Dispute). 313 The ‘2005 Arrangements’ are traversed further at paragraph 175 of this decision. However, in short, and without attempting to minimise the significance of these ‘arrangements’, they have been in place for some time and are favourable to the AWU’s presence and involvement on Alcoa sites.

[146] Resolution of the Policy Dispute was not achieved at the initial stages of the dispute resolution procedure. It was escalated to the Commission, whereby conciliation conferences were conducted. 314 Following the conciliation conference, Alcoa believed it had a right to implement the Uniform Policy, and on 27 October 2015, Mr Smith emailed Mr Price and Mr King stating, amongst other things, that Alcoa expected all of its employees covered by the Uniform Policy, including them, to comply with it by 2 November 2015.315 Mr Smith’s email indicated that a failure to comply with the direction could result in disciplinary action.316

[147] The matter did not resolve, and on 30 October 2015, Alcoa sought to have the matter arbitrated by the Commission. 317 On 2 November 2015, Mr Price and Mr King were again non-compliant with the Uniform Policy and, as a consequence, Alcoa issued written warnings to both.318 The AWU responded that the issuing of warnings had contravened the status quo provision of the Agreement.319

[148] The Policy Dispute was heard on 23 February 2016 and a decision was handed down on 2 June 2016. 320 Mr Smith’s evidence was that the net effect of the declaration of the dispute was that Alcoa did not get a decision in relation to the Policy Dispute until about 10 months after the dispute was initiated, and some 14 months after the Uniform Policy was implemented.321

[149] In addition to the Policy Dispute, come 25 November 2015, Messrs Price and King lodged a dispute regarding their written warnings (the Status Quo Dispute). A conciliation conference was held in late January 2016 and in early February 2016, Alcoa, to no avail, sought to settle the dispute absent admission of liability. 322 The matter was arbitrated with the result that the warnings issued to Messrs Price and King amounted to Alcoa failing to observe the status quo, and was in breach of cl 19(b).323

[150] Mr Gleeson’s view was that considerable management and human resource time was taken up dealing with disputes, and in some circumstances the disputes were frivolous and ought not to be subject to the status quo. 324

[151] In summary, the Policy Dispute and Status Quo Dispute involved the following:

•  Two stage 1 dispute meetings: a commitment of several hours from each of the relevant Superintendent and Convenor;

•  Two stage 2 dispute meetings: a commitment of several hours from the Production Superintendent and Convenor;

•  Two stage 3 dispute meetings: a commitment of several hours from each of the Mine Manager, Human Resources Manager, and the Convenor;

•  Many more meetings and conversation including the Mine Manager, Production Superintendent, the Human Resources Manager, and the Convenor to seek to resolve the dispute (including a significant time commitment for those involved);

•  Conciliation conferences: a commitment of approximately a day from the Mine Manger, Human Resources Manager, the Production Superintendent, and the Convenor for each conference; and

•  Two arbitrations conducted by the Fair Work Commission, both requiring extensive time from the individuals involved, and considerable cost in defending Alcoa’s position. 325

[152] Mr King’s evidence was that Alcoa had tried to ban the AWU logo on his and other convenors’ shirts. 326 He said that he had no problem wearing the Alcoa hi-vis shirts, but he wanted the AWU logo on the opposite side.327 Mr King said that he was told to dispute the uniform issue by the Alcoa Manager at the time, Mr Brett Hodges.328

Supplementary shift dispute

[153] Mr Smith gave evidence that on 18 April 2018, a request was made for an employee to work a supp-shift on 24 April 2018 for the purpose of cleaning a 150 tonne haul truck for a major overhaul. 329 As the cleaning would not take the whole of the shift, it was thought that maintenance work could also be performed. The shift was allocated to a mechanical tradesman and it was noted by the relevant leader that ‘no one else was keen’ to do the shift.330 By 20 April 2018, the AWU, through Mr Price, had notified Mr Smith of an issue regarding the allocation of the supp-shift to an AWMU employee rather than AWU employee, Mr Rod Rose (Mr Rose).331 Mr Rose also personally raised the issue with Mr Smith.332

[154] Mr Smith said that he reviewed the process for selecting the mechanical tradesman. 333 This included reviewing the crew that was best positioned to provide an employee in light of rostering, the type of work to be performed, when the supp-shift fell, and the skills that would be of valuable assistance. In Mr Smith’s view the decision to select a mechanical tradesman was justified.334

[155] On 23 April 2018, the AWU notified Mr Smith that if Alcoa was to proceed to use the maintenance tradesman for the supp-shift, the AWU would commence a dispute on behalf of Mr Rose. 335 Through email correspondence, Mr Smith informed Mr Price of Alcoa’s justification for the use of the mechanical tradesman. A stage 1 meeting with Mr Price and the Superintendent of Mobile Maintenance was scheduled. Mr Rose was also in attendance.336 At the time of filing Mr Smith’s witness statement in these proceedings the matter was not resolved, and had escalated to a stage 2 dispute.

[156] Mr Price gave evidence that insufficient time had been allocated for a truck wash down for a major overhaul. 337 The work was non-trades work done by day to day mineworkers. Mr Price stated that the issue was not about a fitter doing the supp-shift but rather that Alcoa had not followed the supp-shift system. That system provides that if there are insufficient mineworker numbers, the AWU has no issue with trades, staff or contractors performing the work.338

[157] Mr Price stated that in 2013, the AWU, AMWU, and Alcoa developed an agreed supp-shift system. 339 The agreed system had an allocation for fitters and mineworkers. It included a crew priority system that offered the supp-shifts to the crews in order of priority and logical shift patterns.340 In this particular dispute, the supp-shift was offered to the only two available mineworker employees on crew E. They did not accept the shift, so as per the agreed system it should have gone to a crew A mineworker.341 Mr Price said that the agreed supp-shift system existed as per cl 11.2, and that the Agreement provided Alcoa with the flexibility to offer 12, 10.3, 8 and 5-hour supp-shifts in an effort to make labour competitive.342

[158] It was Mr Smith’s evidence that Alcoa was not prepared to continue with a dispute resolution clause, which could be utilised in the manner in which it had, over the course of various disputes. 343 Mr Smith said that from an operational point of view, Alcoa simply did not need the aforementioned types of issues to occupy valuable management, human resources, and administrative time and resources.344 The examples provided showed, according to Mr Smith, that the disputes often required a significant amount of management time, involved the conduct of many meetings, and in respect of disputes unable to be resolved internally, incurred costs associated with attending conciliation and arbitration proceedings before the Commission.345 Mr Smith gave evidence that the disputes in relation to these types of matters did not contribute in any way to a better relationship with Alcoa’s employees.346

[159] The prescriptive and regimented dispute resolution structure, and adherence to it, was, according to Mr Gleeson, a drain on valuable Alcoa resources. 347 Mr Gleeson said that arrangements had to be made to accommodate specific personnel, including convenors, and several employees were diverted from their usual work at each stage of the dispute.348 The availability of personnel, including the line manager, HR manager, the employee, their representative, and coordinating attendance of all was not always possible.349 This in turn resulted in meetings being adjourned and delays in procedural steps, proving most disadvantageous for Alcoa where the status quo operates.350

[160] Further, when read with cl 18, the dispute resolution procedure extended to disciplinary matters. I turn to those matters now.

3.4.7 Disciplinary procedures – clause 18

[161] It was the evidence of Mr Gleeson that cl 18 imposed restrictions on Alcoa’s managerial responsibility to initiate disciplinary action, and associated steps. 351 These restrictions included the termination of employment, upon which the Commission can rule, before a decision by Alcoa is implemented.352

[162] Over the life of the Agreement there had been seven proposed terminations with notice that were disputed by the AWU, who in turn, had invoked cl 18(f). 353 The cumulative cost of the wages paid to these employees after the notice of termination was put into dispute amounted to $303,267.354

[163] According to Mr Gleeson’s evidence, he understood that where Alcoa’s proposed disciplinary action was challenged, it required the Commission to rule upon fairness and reasonableness with which Alcoa had, or intended to, implement the disciplinary action. 355 Although extending to all disciplinary action with regard to termination of employment, the ‘fair and reasonable’ requirement contained in cl 18 differed from the test of ‘harsh, unjust and unreasonable’ prescribed by s 387 of the Act.356

[164] Mr Gleeson continued that his understanding was that when dealing with matters arising under cl 18, the Commission was exercising powers of private arbitration as reflected in the decision of AWU v Alcoa of Australia Limited. 357

[165] Alcoa’s position was that it should be free to act as it deemed appropriate in disciplinary matters with the AWU representing members. 358 It did not want to continue with an arrangement where the fact that an intended dismissal is disputed meant that it could not be implemented, and that the employee continued, on full pay, for as long as the dispute remained unresolved.359

3.4.8 Extended paid sick leave – clause 13

[166] Mr Gleeson said that cl 13(4) when read with Appendix 2 of the Agreement, provided for up to two years’ salary in the event of medium to long term illnesses, on condition that certain qualifying criteria were met. 360

[167] Mr Gleeson expressed that Alcoa took the view, as did he, that in practice the extended sick leave (EPSL) provisions of the Agreement, had the following consequences:

•  there was little incentive for employees to retain accrued sick leave because they knew that EPSL would provide for them if they ran out of accrued sick leave. Mr Gleeson said having reviewed the utilisation of sick leave during 2016 and 2017, on an annual basis across the board approximately 74 hours out of every 80 hours that accrued from year-to-year was taken in paid sick leave (effectively leaving less than one day per year available to employees under cl 13). Mr Gleeson expressed the view that the pattern resulted from the employees knowledge that any additional sick leave could simply be achieved by the operation of the EPSL provisions;

•  there was no remuneration incentive for employees to return to work under EPSL because they received full rate of pay inclusive of shift premiums and allowances;

•  Alcoa had to back fill the positions of employees on EPSL which could amount to double the cost of the provision; and

•  as employees had been moved to Monday-Friday day work (nine day fortnight), the situation could exist where employees on a five panel continuous shift were being paid substantially more for non-attendance, than those on a nine day fortnight for attending work. This was because employees who work a five panel continuous shift roster who are on EPSL receive a shift premium for the duration of time they are off work. 361

[168] Mr Gleeson said Alcoa wanted to strike a clear balance between assisting incapacitated employees, and at the same time encouraging their early return to work when they are well enough to do so. 362 Mr Gleeson gave evidence that with respect to enterprise agreement negotiations with the AMWU and CEPU, terms had been negotiated that better struck the balance referred to.363

3.4.9 Union structures and arrangements – clause 4.5

[169] It was Mr Smith’s evidence that the union structures and site representative arrangements in cl 4.5 came at a significant cost and inconvenience to Alcoa. 364 Clause 4.5 relevantly provides for:

(a) the provision of support to the AWU’s site representatives at the same level as provided under a predecessor agreement which was in force from 2005; 365

(b) the same approach to requests from the AWU for paid meetings and for Alcoa to cover travelling expenses associated with interstate meetings; 366 and

(c) continuing arrangements for union convenors, as current at the time the Agreement was negotiated, including providing reasonable access to employees during bargaining for a replacement agreement. 367

AWU Convenors

Huntly

[170] Mr Price is the AWU Convenor at Huntly and is supported by a Deputy Convenor. 368 He was initially employed with Alcoa as a mining operator, commencing in November 1986. As a result of the cl 4.5 arrangements in the Agreement, as a full-time convenor, he does not perform the duties for which he was employed in that job classification. Mr Price’s annual salary is $140,037.369

Willowdale

[171] At Willowdale, Mr King is the AWU Convenor, and is assisted by a Deputy Convenor. Mr King has been with Alcoa since February 1992. He was employed as a mining operator but because of the cl 4.5 arrangements, as a full-time convenor, he does not perform the duties for which he was employed in that job classification. Mr King’s annual salary is $140,037. 370

[172] The salaries for the convenors and deputy convenors include a base salary, shift allowance, a mining allowance, and a health allowance but do not include superannuation, which is paid at a rate of 14%, or contributions made in line with Alcoa’s defined benefit scheme. 371

AWU delegates

[173] In addition to the convenors at each of the mines, numerous employees are AWU delegates. 372 Under current arrangements there is no cap on how many AWU delegates may be appointed by the AWU.373 Typically, at the WA bauxite mining locations every crew is entitled to a delegate, irrespective of the size of the crew. This approach by the AWU means that large production crews of up to 30 people have one delegate.374 At the other end of the scale a small mobile maintenance crew perhaps made up of only four trades assistants has one AWU delegate.375

[174] For Huntly, there are 22 AWU delegates out of a total of approximately 280 eligible members equating to a ratio of approximately 1:13. 376 This does not include Mr Price. At Willowdale, there are 13 AWU delegates out of a total AWU population of approximately 122 eligible members, equating to a ratio of approximately 1:9.377 This does not include Mr King. Mr King, however, said at Willowdale there was a total of 13 AWU delegates representing 120 AWU members, and in mobile maintenance there were only three AWU delegates, representing 16 people.378 It was not the case that there was an AWU delegate for every crew because the AWU had agreed to Alcoa’s request that the AWU have no such delegate numbers.379

Delegate meetings

[175] AWU site representatives (comprised of the AWU convenors, the AWU deputy convenors and the AWU delegates) hold numerous meetings for which payment is sought on the basis that the entitlement arises from the continuation of the support of arrangements which existed in 2005 (the 2005 Arrangements). 380

[176] Mr Smith gave evidence of the frequency, location and delegate attendance at delegate meetings during the course of the year. While he had had communication with Mr Price concerning a proposal to change starting times for delegate meetings and locations, no agreement was reached. 381 Mr Smith had made the proposal because of the impact the delegate meetings were having on Huntly. Mr Smith gave evidence that based on his assumptions that eight to ten delegates attended each delegate meeting at Huntly, and that each delegate was away from her or his usual duties for an average of approximately four hours, the current position at Huntly was that the delegate meetings resulted in approximately 32 to 40 days of lost time per year from employees working 12 hour shifts.382

[177] Mr Smith’s evidence was that at Willowdale, there was a quarterly meeting held on site for approximately seven hours. 383 AWU delegates were re-rostered if they were rostered to work night shift so that they could attend the day shift on which the meeting was scheduled to occur.384 If the delegate was not rostered to work the day of the delegates meeting the delegate was provided with time in lieu for the time taken to attend the meeting.385 According to Mr Smith, this resulted in approximately 30 days of lost time per year on the basis of 13 delegates attending the meeting, not including the AWU convenor.386

[178] With respect to quarterly meetings at Willowdale, Mr King said that Mr Smith’s evidence was incorrect, and there were no quarterly meetings at all, and that days in lieu were certainly not provided. 387 Further, with regard to AWU-related meetings that were said to be held at Willowdale on a quarterly basis for 90 minutes,388 Mr King’s evidence was that Mr Smith was incorrect with his account, and that such meetings had never taken place.389

Other Meetings

[179] In addition to the delegate meetings, there were AWU and Alcoa site meetings (Huntly and Willowdale), AWU and Alcoa Department meetings (at Huntly the meetings were held for each of the four departments, approximately monthly; and at Willowdale they were held on an ad hoc basis), and West Australian Operations AWU and Alcoa meetings. 390 There were further meetings, which involved only convenors and delegates, which included the AWU General Meeting, AWU All Sites Coordinating Committee Meetings, and Bargaining Update Meetings.391

[180] It was Mr Smith’s evidence, that to support the AWU meetings referred to for Huntly, without having regard to AWU convenor meetings, Alcoa was required to release employees who were AWU delegates, on full pay, for the equivalent of approximately 180 to 188 working days per annum. 392 Mr King gave evidence that Mr Smith’s evidence was incorrect and that there were 13 stewards and four bi-monthly meetings, totally 20 hours per year and that was it.393 Mr King said that the meetings went for five hours total and no days in lieu were provided.394 No further clarification was provided by the AWU regarding total number of hours.

[181] Insofar as Willowdale was concerned, Mr Smith gave evidence that the requirement to release AWU delegates, on full pay, had resulted in 102 working days per annum based on employees working 12 hour shifts. 395 According to Mr King there had not been a department meeting for two years and the only time supervisory staff had attended was for four, one hour meetings a year, which equated, said Mr King, to 12 hours of Agreement hours and not 56 hours.396

[182] The days referred to in the preceding two paragraphs did not include time that AWU delegates took to act as support person to other members of the crew during meetings with management as part of disciplinary processes or their participation, as AWU delegates, in meetings related to other disputes. 397 Further, in addition to the aforementioned meetings, Alcoa was obliged to release AWU delegates for union training (generally one to two days each year for each AWU delegate), which could involve up to an additional 528 hours per year, being the loss of two 12 hour shifts for each of the 22 AWU delegates.398

[183] Mr Smith said that in order to release employees who were rostered to work, but who attended meetings as AWU delegates, Alcoa had to ‘back fill’ the positions to ensure operational work was completed. 399 This resulted in additional costs for Alcoa who had to provide shift cover at an increased cost because of the utilisation of supp-shifts, or casual labour.400 A considerable amount of management time was consumed to accommodate absences from rostered shifts of large numbers of employees.401

3.4.10 Disputes arising from the interpretation of clause 4.5(c)

Training days

[184] The AWU asserted that on training days, which were held every five weeks, the AWU was entitled to address each crew in mining for 30 minutes, without the presence of Alcoa group leaders and superintendents. 402 Mr Price had asserted that this was required under the ‘2005 Arrangements’.403

[185] However, Alcoa took the view in December 2015, based on reports received, that the training days were not being used for the purpose for which they were designed, which was to reduce industrial disputation, and assist with business change. 404 The Operations Manager of Huntly decided to direct staff (leaders) to attend the 30 minute session.405 Mr Price put the matter into dispute on 5 December 2016 and notified the Operations Manager of the status quo which required Alcoa to allow training day to proceed without staff present.406 It was subsequently agreed to trial a line leader sitting in on the training day for the 30 minute address by the AWU, and that Alcoa would provide the AWU with another separate 30 minute period to address the crews on training days to allow the AWU to provide an update on the ongoing bargaining in relation to the replacement agreement.407 The bargaining protocol for the new agreement included that any application by the AWU for a protected action ballot would result in the arrangement falling away.408

Mr Price office dispute

[186] Having conducted a review of the Myara mine site office arrangements, Alcoa made a decision to change the existing structure to allow dispatch personnel to be housed together, enabling close working relationships which was desirable given the introduction of a new dispatch system. 409 The dispatch personnel were to be housed in a building where Mr Price’s office was located and therefore, Mr Price was to be relocated to a standalone office in the main administration building.410

[187] Mr Price asserted that the ‘2005 Arrangements’ allowed him to retain his office in the same location, and accordingly, lodged a dispute about the proposed office location on 21 October 2016. 411 Mr Price contended that the status quo provisions were such that he could not be required to relocate until the dispute was resolved.412

[188] During November and December 2016, various office configurations and arrangements were then proposed by the parties to resolve the dispute, with two conciliation conferences being held before Deputy President Binet in the Commission. 413 The matter did not proceed to hearing but nevertheless, according to Mr Smith, Alcoa was put to the expense of attending stage 1, 2, and 3 dispute meetings, further meetings, conciliation conferences, and holding conversations regarding management and Mr Price.414

[189] Mr Smith said that there was a considerable cost and inconvenience incurred from the office dispute, including the preparation and filing of witness statements for four witnesses. Hence, Mr Smith said Alcoa sought the removal of the ‘2005 Arrangements’.

3.5 AWU’s evidence in general regarding cooperation and flexibility

[190] Mr King gave evidence that he considered Mr Gleeson, Mr Fennessy, and Mr Smith had attempted to portray the AWU as being consistently unreasonable, and hostile towards Alcoa’s attempts to improve its business. 415 Mr Allen said that the AWU had regularly worked collaboratively and productively with Alcoa to improve its operations, and provided the following examples:

•  Alcoa wished to introduce changes to leave guidelines and start and finish times from 7.30 to 7 in 2014 which the AWU did not dispute although I believe the other unions did.

•  Alcoa have had some significant flange failures one of which resulted in serious injuries. The membership wanted to get the Department of Mines heavily involved and not to work on certain equipment. This would have had a significant impact on the business in regards to cost and loss of production however the AWU and Alcoa negotiated a more favourable outcome for the business whilst protecting the workforce from these types of incidents moving forward.

•  The AWU was going to contest the enforceability of the 2016 agreement manning numbers after 2016 but withdrew the application in good faith much to the disappointment of the membership. This dispute could have been very costly to the business. Instead we thought we could address the issue through the negotiations for the new EA which were underway.

•  During recent fires near Wagerup Refinery employees worked extremely lengthy hours over a short period to assist Alcoa in managing the site during this difficult period.

•  Starting work early or finishing late during valve changes at the Refineries.

•  Employees coming in on short notice for coverage or extra work on supplementary shifts.

•  In the current EA we, the AWU membership, paid for the transition to 9-day fortnights via a supplementary shift reduction to make the transition less of a burden on the employees and not cost for Alcoa because there was no disputation over the loss of income. This is reflected in clause 10.3(g) and (i) in the current agreement. 416

[191] Mr Price similarly gave evidence that the AWU regularly worked collaboratively and productively with Alcoa to improve its operations. 417 By way of example, Mr Price referred to an email from the Refinery Manager at Wagerup, who thanked employees for working ‘professionally and tirelessly’ during a power failure. According to Mr Price this type of effort from the employees continued despite the application to terminate the Agreement.418

3.6 Negotiations for a new Alcoa AWU enterprise agreement

[192] On 21 December 2016, Alcoa and the AWU bargaining representatives commenced bargaining for an enterprise agreement to replace the Agreement. 419 Mr Gleeson expressed that bargaining took place on the basis that ‘nothing is agreed until everything is agreed’, meetings were on a without prejudice basis, and even if there was ‘in principle’ agreement’ on a particular subject matter the position could not prevail unless there was agreement in respect of all matters the subject of the proposed enterprise agreement.420

[193] Mr Gleeson said that from the outset of the negotiations for the proposed agreement, there had been a number of important terms in the Agreement that Alcoa regarded as no longer acceptable, and which it was not prepared to agree to continue in the new proposed agreement. 421 Mr Gleeson said that each one of those terms referred to (detailed in paragraph 20 of this decision) had been the subject of extensive discussion between Alcoa and the AWU representatives in the bargaining meetings.422

[194] Up until 20 February 2018, bargaining representatives had met to attend bargaining meetings on 47 separate occasions. 423 According to the evidence of Mr Gleeson, and subject to what is to be said in the following paragraph, the following people were in attendance:

Those attending on behalf of Alcoa were Matthew Gleeson (Director – Employee Relations); David Parker (Consultant to Alcoa); Nick Bacon (Human Resources Manager, Mining); Fran Shipp (Human Resources Manager, Wagerup); David Feast (Operations Centre Manager - Digestion, Wagerup); Justin Fennessy (Production Manager - Whiteside, Pinjarra); Tom Gloster (Operations Centre Manager - Digestion, Kwinana); Ben Robinson (the then Mine Manager, Willowdale); and Liam Smith (the then Mobile Maintenance Superintendent, Huntly).

Those attending to represent the AWU and the employees were Brad Gandy, an AWU official; Simon Price (Site Convenor, Huntly Mine); Shannon Kelly (Operator, Huntly Mine); Stuart Allen (Operator, Pinjarra Refinery); Chris King (Site Convenor, Willowdale Mine); Phil Rozman (Operator, Willowdale Mine); Darren Lee (Site Convenor, Wagerup Refinery); Jye Nathan (Operator, Wagerup Refinery); Andy Hacking (Site Convenor, Kwinana Refinery); and Glen Hasson (Operator, Kwinana Refinery). 424

[195] Mr Gleeson’s evidence was that the representatives of Alcoa and the AWU had been substantially the same for each bargaining meeting, subject to the absence of some individuals from some meetings for a variety of reasons. 425 Mr Hope became a regular participant in the meetings and Mr Fennessy ceased attending the meetings after November 2017 due to a change in his operational responsibilities. Mr David Feast ceased attending meetings after 5 October 2017 due to his transfer overseas, and Mr Ben Robinson ceased attending meetings after 6 July 2017 as he left Alcoa.426

[196] Other Alcoa employees attended bargaining meetings as substitute representatives for the AWU for their respective sites, including Mr Les Harrison (Precipitation Manager Wagerup), Mr Les Nel (WA Workshop and Stores Manager, Pinjarra), and at different times Mr Dan McCaig, an AWU official, also attended. 427

[197] The meetings were, by all accounts, extensive, and involved repeated discussions and bargaining in respect of the terms sought by Alcoa and the AWU for a replacement agreement. 428 Mr Gleeson said that he attended all but approximately five meetings, and led the negotiations for Alcoa.429 With the exception of eight intense days of negotiations in late January and February 2018 (which went well into the night), the bargaining meetings were routinely scheduled on Thursdays and typically were scheduled to start at 10.00am and conclude around 2.00pm and 3.30pm.430

[198] An initial bargaining meeting was held on 21 December 2016 and a second bargaining meeting was scheduled for 12 January 2018. 431 At the second bargaining meeting Mr Gleeson handed out an Agreement booklet and on a screen showed an indicative new enterprise agreement.432 Mr Gleeson’s evidence was that at the second bargaining meeting he explained that Alcoa's intention was to show the AWU what Alcoa needed to achieve in the future concerning a new enterprise agreement, and referred to the need to increase flexibility to make changes, increase efficiency, decrease disputation, and increase Alcoa's ability to exercise managerial prerogative.433

[199] On 19 January 2017, at the third bargaining meeting, Mr Gleeson presented a PowerPoint presentation on screen dealing with and elaborating on the terms of Alcoa’s proposed enterprise agreement. 434 The matters on which Mr Gleeson spoke included:

(a) the ‘2005 union arrangements’, embodied in the Agreement, which Alcoa wanted removed;

(b) Alcoa’s view that the Dispute Settlement Procedure did not operate acceptably as shown by the 46 disputes that were notified in 2016 under the Agreement, with 16 resulting in proceedings within the Commission;

(c) the Extended Paid Sick Leave provisions which were beyond the market and sick leave statistics for AWU members were high ;

(d) Alcoa not wanting to retain minimum manning in the proposed enterprise agreement;

(e) Alcoa not wanting to offer redundancy pay without a cap or have restrictions on involuntary redundancy. 435

[200] According to Mr Gleeson, and as observed, Alcoa had made its position known from the outset of bargaining that there were a number of important terms in the Agreement that Alcoa viewed as no longer acceptable. 436 Those terms were:

(a) Minimum manning (clause 24);

(b) Supplementary shift requirements (clause 11);

(c) Rates for labour hire personnel (clause 23);

(d) Early retirement and redundancy (clause 17);

(e) Hours of work and rostering requirements (clause 10);

(f) Dispute settlement procedures (clause 19);

(g) Disciplinary action requirements (clause 18);

(h) Extended paid sick leave (clause 13.4); and

(i) Union structures and arrangements (clause 4.5). 437

[201] At the conclusion of bargaining in February 2018, there was no ‘in principle agreement’ between Alcoa and the AWU bargaining representatives on any subject matters of concern to Alcoa; notwithstanding that Alcoa had, according to Mr Gleeson, made a number of concessions in order to try and reach agreement on a range of subject matters. 438

[202] In February and March 2018, the AWU organised, and members of the AWU engaged in, various forms of protected industrial action, which took the form of various work stoppages and partial work bands affecting all of Alcoa’s sites. 439

[203] On 12 March 2018, Alcoa applied to the Commission to deal with the bargaining dispute pursuant to s 240 of the Act, 440 which resulted in ‘New Approaches’ bargaining commencing with the Commission’s assistance on 3 April 2018.441

[204] Eleven interest based bargaining meetings followed; the last of which was on 24 May 2018. 442 The bargaining concentrated on a range of matters which Alcoa was seeking to alter or remove, which no longer suited its operations.443

[205] Notwithstanding the extensive assistance from the Commission in the process, there was no agreement reached between Alcoa and the AWU in those bargaining meetings. 444

[206] Following the conclusion of the ‘New Approaches’ bargaining process, on 5 June 2018, the AWU filed an application under s 240 of the Act for the Commission to deal with a bargaining dispute. 445 Conciliation conferences in the Commission then took place on 7 and 18 June 2018.446 It was said that the outcome of these conferences was that no material progress had been made in arriving at an agreement between the bargaining representatives for a new enterprise agreement.447

[207] During the period 21 June 2018 to 26 July 2018, further bargaining occurred between Alcoa bargaining representatives and AWU bargaining representatives, further draft proposed agreements were provided, and correspondence and emails exchanged. 448

[208] According to Alcoa, although progress was made in refining the issues remaining in dispute, and concessions were made by each side (subject to the overriding proviso that all matters were without prejudice and subject to overall agreement), no agreement was reached between the representatives as to the content of an agreement which could be put to employees for a vote. 449

[209] On 12 July 2018, the AWU sent another draft agreement to Alcoa that was titled ‘Draft Agreement’. 450 Mr Price recalls that leading up to 11 July 2018, the AWU Bargaining Committee had prepared a document, a draft agreement, to send back to Alcoa for consideration.451 However, when asked whether the Draft Agreement constituted the claims that the AWU was asking Alcoa to accept as the new enterprise agreement, Mr Price responded that he did not understand the question and he was not too sure how to answer it.452

[210] When asked again where the Commission could find the claims that the AWU were pressing against Alcoa, Mr Price responded by stating ‘[w]ell, it would be in our witness statements, wouldn’t it’. 453

[211] Mr Price, after some questioning, stated with regard to the Draft Agreement that ‘it may be the last document that we’ve sent Alcoa. There may have been conversations since this document, but this is obviously the last document. I take it on face value that this is the last document that we sent Alcoa’. 454 Mr Price stated that the claims in the Draft Agreement had not been abandoned.455

[212] Notwithstanding that no agreement was reached between the representatives as to the content of an agreement which could be put to the vote, on 30 July 2018, Alcoa advised the AWU that it would request eligible employees to vote to make an agreement. On 7 August 2018, Alcoa sent its proposed enterprise agreement to all eligible employees for the purposes of an employee approval vote to occur between 28 August and 6 September 2018. 456 The agreement was not made.457

[213] On 8 August 2018, employees who are members of the AWU, again commenced protected industrial action at all sites under notices to the effect that the stoppages were for an indefinite period. 458

[214] In summary, Alcoa had been negotiating with the AWU, as the bargaining representative of the employees, for a replacement agreement since 21 December 2016. During this time there had been 47 – 48 face to face bargaining meetings. Alcoa and the AWU also took part in a series of interest based bargaining sessions with the assistance of the Commission over a period of approximately two months, with no success.

3.7 Concessions

[215] Identical paragraphs could be found in the witness statements of Messrs Allen, Price and Mr King. In Mr Price’s statement these paragraphs were located at paragraphs [8] to [31]. Mr Price’s evidence was that the paragraphs were the position of the AWU EBA Negotiating Committee. 459 To clarify, it was the AWU’s stated position.460 Throughout the hearing these paragraphs were referred to as the ‘Concessions’. Set out below are the Concessions as presented in Mr Price’s witness statement:

9. Mr Gleeson states at paragraph [128] and [211] of his witness statement that no changes have been agreed between the parties concerning any of the issues identified above because bargaining has proceeded on the basis that: “nothing is agreed until everything agreed”.

10. Whilst Mr Gleeson’s statement is generally accurate in terms of how bargaining has previously been approached by the parties, his statement no longer reflects the position of the AWU.

11. The AWU’s position is now that the concessions identified below are final and the AWU will not be walking away from them unless a decision is made for the current agreement to be terminated.

12. In the event that a decision is made to terminate the current agreement, the AWU’s position is that the concessions identified below will no longer apply because Alcoa will have dramatically altered the state of bargaining and the AWU cannot be held to previous concessions in those circumstances.

Minimum manning

13. Mr Gleeson outlines his specific concerns about the minimum manning level provisions in the current agreement from paragraph [49] to [59] of his witness statement.

14. The AWU has agreed, subject to a decision to terminate the current agreement, that minimum manning numbers will not appear in the new agreement.

Supplementary shift requirements

15. Mr Gleeson outlines his specific concerns about how supplementary shifts are allocated under the current agreement from paragraph [60] to [72] of his witness statement.

16. The AWU has agreed, subject to a decision to terminate the current agreement, that Alcoa can offer supplementary shifts at its discretion subject to operational needs under the new agreement.

Rates for labour hire personnel

17. Mr Gleeson’s specific concerns about the current agreement’s labour hire provisions are outlined from paragraph [73] to [77] of his witness statement.

18. Many of Alcoa’s concerns about their perceived limited ability to utilise labour hire are nullified by the AWU’s concession on manning numbers and forced redundancies as identified above and below.

19. In addition, the AWU has agreed, subject to a decision to terminate the current agreement, to the following changes to the current labour hire provisions:

•  Alcoa does not have a mandatory obligation to advise the AWU about the use of labour hire but must provide details to the AWU upon request. In addition, a reduction in starting rates for labour hire to market rates for the first six months.

•  Subject to providing certain information to the AWU, Alcoa can arrange competitive tenders for work to be outsourced.

•  Status quo provisions in the disputes procedure will not apply to disputes about the use of labour hire by Alcoa.

Early Retirement and Redundancy

20. Mr Gleeson’s concerns about the current agreement’s redundancy provisions are outlined from paragraph [78] to [82] of his witness statement.

21. The AWU has agreed, subject to a decision to terminate the current agreement, to various changes to the current redundancy provisions to appease Alcoa’s concerns. These are:

•  Alcoa can offer voluntary redundancies at their discretion subject to consultation. A cap on redundancy pay of 80 weeks will apply to voluntary redundancy payments if the employee who has volunteered was not directly affected by the relevant organisational change.

•  Alcoa can implement forced redundancies subject to first seeking volunteers and subject to contractors not being used to perform the work of the forcibly redundancy employees.

Hours of work and rostering

22. Mr Gleeson’s concerns about the current agreement’s hours of work and rostering provisions are outlined from paragraph [83] to [90] of his witness statement.

23. The AWU has agreed, subject to a decision to terminate the current agreement, to the following array of changes to the current hours of work provisions:

•  Additional hours can be worked where a major plant failure or safety issue has arisen without additional remuneration. For example, during power failures or uncontrollable events where the plant cannot be left without an incoming shift taking control.

•  Start and finish times can be altered within a 2-hour bandwidth of normal start and finish times.

•  Temporary shift transfers can occur between panels, for a period of between one day and three months on up to two occasions per year. This is subject to volunteers first being sought be Alcoa.

•  Shift workers can be permanently transferred between rosters and/or panels (including from shift work to day work) with 10 days of notice subject to an agreed shift allowance protection system.

•  A new clause will be inserted for emergency situations. Subject to the completion of inductions and training, employees may be required to assist at other locations where an emergency event has occurred which has the potential to cause significant damage to Alcoa’s operations at that location.

Dispute settlement procedures

24. Mr Gleeson’s concerns about the current agreement’s dispute resolution clauses are outlined from paragraph [91] to [103] of his witness statement.

25. The AWU has agreed, subject to a decision to terminate the current agreement, to:

•  Reducing the disputes procedure from five stages to four stages. This will expedite the resolution of disputes.

•  The removal of the status quo requirement at the point that the matter is referred to the Fair Work Commission. Plus the AWU has agreed to carve out location changes, scope of work, hours of work and lawful instructions from the status quo provision.

•  An ‘Interest Based’ model approach to the dispute procedure to try and encourage the resolution of matters without assistance from the FWC.

Disciplinary action requirements

26. Mr Gleeson outlines his concerns about the current agreement’s disciplinary procedure terms from paragraph [104] to [113] of his witness statement.

27. The AWU has agreed, subject to a decision to terminate the current agreement, to:

• Increase the maximum length of suspension without pay from two weeks to four weeks.

• Remove the current requirement to notify the AWU senior site representatives and convenors about disciplinary action – Alcoa will only have to notify the affected employee.

• Employees facing dismissal will receive a maximum of 18 weeks of salary payments while contesting the proposed decision. Employees will also be required to access any accrued annual and long service leave during the 18-week period. The AWU will not support a subsequent unfair dismissal claim if this process has been utilised by an employee. The expedited disputes procedure may also allow these disputes to be resolved before the 18-week cap is reached.

• Reduce the AWU’s ability to dispute matters arising from consultation processes unless Alcoa raises a “major change” which will have a “significant effect on employees”.

Extended paid sick leave

28. Mr Gleeson outlines his concerns with the current agreement’s extended sick leave provisions from paragraph [114] to [116] of his witness statement.

29. The AWU has agreed, subject to a decision to terminate the current agreement, to a longer qualifying period for extended sick leave and for payments to be capped at 85% of base remuneration – this doesn’t include shift penalties.

Union structure and arrangements

30. Mr Gleeson outlines his concerns with the current agreement’s terms about union arrangements from paragraph [117] to [125] of his witness statement.

31. The AWU has agreed, subject to a decision to terminate the current agreement, to:

•  Move away from the contentious ‘2005 arrangements’.

•  A more standardised and clear approach to paid meetings and for the meetings to be subject to operational requirements. Also, a significant reduction in union meeting hours.

•  Not claim expenses for inter-state travel.

Additional matters

In addition to the extensive concessions identified above, the AWU has also agreed, subject to a decision to terminate the current agreement, to the following other concessions in response to issues raised by Alcoa during negotiations for a new agreement:

•  Job descriptions to not be contained in the new agreement so they can be amended by agreement without the need for a variation to the agreement. This change will also provide Alcoa with the ability to introduce new job descriptions.

•  Company policies will not be included within the terms of the new agreement. However, some existing conditions of employment contained in these policies may become part of the new agreement. These changes will allow Alcoa to vary many policy terms without needing to vary the enterprise agreement.

•  An ability for Alcoa to direct employees with excessive leave balances (defined as a balance of 11 or 12 weeks) to take annual leave.

•  ATO rates to be used for travel reimbursements and no use of taxis. Currently, taxi fares can be claimed in some instances and higher Alcoa policy rates are applied for travel reimbursements. 461

[216] It was evident in Mr Price’s cross examination, and on review of the evidence, that the Concessions were not included in the Draft Agreement. By way of example, Mr Dixon drew Mr Price’s attention to paragraph 21 of Mr Price’s witness statement and Mr Price acknowledged that paragraph 21 was not recorded in the material. 462

[217] Throughout the content of the Concessions, reference was made to ‘subject to a decision to terminate the current agreement’. Mr Price clarified, when asked that this meant, that ‘if our agreement isn’t terminated – if the current agreement isn’t terminated, we are still prepared to move away from the ‘2005 Arrangements’ and reach an arrangement with Alcoa that’s suitable to the parties’. 463 The Concessions were to be withdrawn, as Mr Price understood it, if the Commission terminated the Agreement.464 Mr Price acknowledged that he could not ‘predict what we’re prepared to negotiate in the future’.465

[218] However, when asked, Mr Price said that it was correct that the AWU would still try and reach an agreement even if the Agreement was terminated, would not act capriciously or in bad faith, and the option remained available to use protected industrial action to pressure Alcoa as much as it regarded as necessary. 466

[219] Mr Price was asked directly how the Concessions had been communicated to Alcoa and he responded ‘[w]ell, in the most recent times, predominately verbal because the meetings that we’re having with the company’. 467 Mr Price’s evidence was that the Concessions would have been communicated with the two full negotiating committees, the AWU Committee and the Alcoa Committee, in the Hub building at Pinjarra Refinery in July, June/July.468 However, when pressed regarding the detail of what was communicated and when, with regard to these meetings, Mr Price was, at best, vague; but perhaps an accurate observation was that he was incapable of providing a straight answer.469 Mr Price’s witness statement was dated 18 July 2018, and there was no contest that it was served on Alcoa on or about that time.

[220] Mr Allen stated within his witness statement that while Mr Gleeson’s statement was generally accurate in terms of how bargaining had previously been approached by the AWU and Alcoa, his statement no longer reflected the position of the AWU. 470 It was the case, that the AWU had made, in the view of Mr Allen, Concessions during the course of bargaining and Mr Allen expressed that ‘AWU will not be walking away from them unless a decision is made for the current agreement to be terminated’.471

4 Undertaking

[221] Alcoa annexed to the Application a draft undertaking (Undertaking), which is included at Annexure One to this decision. In summary, the effect of the Undertaking was that Alcoa would pay the employees according to a ‘Rates of Pay Schedule’ which would maintain the current payment levels under the Agreement for six months, subject to exceptions outlined at Annexure One.

5 Financial position of Alcoa

[222] During the course of the hearing, the AWU focused heavily on the evidence of Alcoa’s net profit figures from 2013 to 2017. Those figures amounted to $259.5 million in 2013, 472 $215.7 million in 2014,473 $645.5 million in 2015,474 $249.1 million in 2016,475 and $1.09 billion in 2017.476 It was the view of the AWU that these figures could be relied upon as they had been audited by PricewaterhouseCoopers;477 and while they included profit generated by the Portland smelter, the Commission could safely assume the smelter had made a minimal contribution.478 There was no suggestion that the figures cited were inaccurate.

[223] It was the evidence of Mr Gleeson that in 2015/2016 Alcoa faced a fluctuating commodity price that was on the downside and was unprecedented. 479 Mr Gleeson continued that there were genuine concerns for the future of the Alcoa’s business, and elaborated that those concerns included significant losses at the Kwinana Refinery, losses at the Wagerup Refinery for short periods, and the Pinjarra Refinery generally broke even or was slightly profitable.480 Alcoa, the global corporation, was losing money and was looking intensely at its portfolio of assets to determine which ones would remain in operation.481  Mr Gleeson said ‘there is absolutely no doubt that our Kwinana Refinery in particular was one of those assets that was being very closely looked at for potential closure’.482

[224] Mr Smith similarly gave evidence that the main external pressure on Alcoa was commodity prices. 483 Mr Smith’s evidence was that in 2015 there was a 40% drop in alumina price.484 This drop could be seen in the document that Mr Crawford drew to the attention of Mr Smith in cross examination, titled ‘Aluminium, alumina and bauxite resources and energy quarterly March 2018’, authored by the Chief Economist (the Aluminium, Alumina and Bauxite Document).485  

[225] Mr Crawford asked Mr Smith a series of questions concerning the forecasting that the Aluminium, Alumina and Bauxite Document provided. 486 In short, the forecasts showed a gradual increase in alumina consumption, alumina exports and production remained stable, bauxite production showed an increase, and alumina spot prices were relatively stable.487 When asked if the outlook for Alcoa was reasonably positive, Mr Smith noted that he was not a market expert but based on the figures it looked like there was some stability.488

[226] The AWU sought to rely upon the evidence of Mr Kamper who had provided a detailed report on Alcoa’s financial performance. Mr Kamper, was the National Economist for the AWU having commenced in the position approximately 12 months before the hearing. 489 Before working for the AWU, Mr Kamper worked as an Economic Consultant for several consultancy firms, and as a financial analyst for Macquarie Bank.490 Mr Kamper’s contribution broader afield included his work as the contributing editor for two economic textbooks used for secondary school students in Australia.491

[227] When Mr Kamper was asked about the forecasting of aluminium, alumina and bauxite the following responses were elicited:

But you have no real way of telling where prices are going to end up at the end of this year’ – Correct.

Or the beginning of next year? – Yes, that’s right. 492

[228] In summary, Mr Kamper’s evidence was effectively that the price of alumina was set by the international market, and Alcoa was a price taker. Mr Kamper agreed when asked if Alcoa had any price setting element about it, that this element was small when compared to production coming out of China, Russia and Brazil. 493

[229] Included in Mr Kamper’s report on the financial position of Alcoa was a section titled ‘Alcoa of Australia (AoA) Financial Performance’. Mr Kamper obtained financial statements for Alcoa from a third party information provider called Mint Global. The Mint Global information was presented in the form of three graphs. The first graph showed that during the 2017 calendar year Alcoa outperformed its results in the previous period. It was said that revenue increased by 40%, earnings before income tax increased by over 300%, profit/loss before tax increased by over 300%, and profit/loss after tax increased by over 470%. Two further graphs were provided which similarly referred to increases in revenue, ‘EBIT’, and profit.

[230] In addition, the Mint Global figures showed that during the period of 2015 and 2016 Alcoa’s revenue decreased by about $500 million US dollars. 494 When Mr Kamper was asked about the Mint Global figures he agreed that during the period of 2013 to 2017, revenue had increased by about 8% over the period or, $284 million.495

[231] Mr Kamper was asked about the expectations of a viable commodity producer in relation to Alcoa’s decline in revenue, Mr Kamper gave the following evidence in cross examination:

You would accept, would you not, that such a large drop should raise alarm bells for management in a corporation like Alcoa of Australia if it was 500 million from year to year?---Yes.

You would accept that a decline in revenue of that amount if it was repeated in the following year, would raise very significant detrimental issues for the business?---To a large extent, yes.  The year you're referring to, Alcoa's profit margin was still well above the average industry profit margin, so I think it would raise concerns with management, but not dire.

But enough for management to take measures wherever it could to try and improve its revenue and productivity?---Yes.

Can I take you to page 11 of the material that you have sourced from Mint Global?---Yes.  Alcoa of Australia's statement?

No, it's not Alcoa's statement.  It's Mint Global's analysis of some material - - -?---Yes.

- - - in relation to Alcoa of Australia Ltd?---Yes.

You will see in the heading Unconsolidated Data there are various reports for the years 31 December 2013 through to 31 December 2017?---Yes.

You will see - and correct me if my interpretation of this is wrong, Mr Kamper - that between the operating revenue turnover for the 31 December '15 year was a figure of 3,007,880?---Sorry, which figure?

Well, look at the operating revenue column, which is the first one?---Yes.

Go to - - -?---Here we are, the 2015 one, yes.

Yes, the end of '15.  You see that?---Yes.

If you compare the '15 figure to the '16 figure, you will see there is a drop of about 500 million in revenue?---Correct.

US.  Now, you may not know precisely what the exchange rate was, but that would be about $AUS800, would it - million dollars?---Million, yes.

If you look at the trend in these figures between 2013 until 2016, it's all a declining trend every year?---Yes.

That would tell you as prudent management, would it not, that you need to take serious measures to try and improve the position?---Yes, I would suggest that the profit margin - sorry, profit before tax and profit after tax would be a more useful measure when determining what management would be concerned about in that instance.

But you accept - - -?---The decline isn't as linear as you suggested for revenue as for profit before and after tax.

You agreed with me earlier in your evidence that an organisation should strive to increase its revenue on an annual basis?---Yes.

If you look between 2013 through to 2017, you will see that the difference there is the difference between the figure 3,258,774 and 3,542,761.  You see that?---Yes.

You can have it checked if you like, but it's about 284 million - it's only about an 8 per cent increase in revenue over that period on these reports that you rely?---Yes.

You accept also, do you not, Mr Kamper, that Alcoa's operations in Western Australia are capital intensive?---Yes.

That upgrades and maintenance require very large amounts of capital expenditure?---Correct.

And you agree that management requires the operations to be conducted so as to fund the ongoing capital expenditure?---Yes.

And to fund borrowing costs?---Yes.

Based on your knowledge and study of economics I suggest to you that your learning and experience would tell you that there is nothing that suggests that a company such as Alcoa of Australia should not seek to make additional profits for its shareholders year to year?---Sorry, could you repeat that?

In your learning and experience there are no principles which suggest that a company such as Alcoa of Australia should not seek to make additional profits for its shareholders from year to year?---Yes, correct. 496

[232] The Mint Global figures referred to in evidence included reference to two operations that were no longer in existence (Angelsea and Point Henry), and Mr Kamper acknowledged that he did not know when, and to what extent Mint Global had incorporated costs or revenue concerning those two operations. 497 Mr Kamper conceded that he was unaware of the methodology used by Mint Global to arrive at the reported figures although he knew that the provider sourced information from Equifax, which he understood sourced information from ASIC.498 Further discrepancies with the Mint Global figures were evident.499 Alcoa advanced that Mr Kamper's reliance on the Mint Global material, and his analysis based on that material, was of little probative value as it was not verifiable, contained errors, and Mr Kamper could not determine the appropriate exchange rate used when trying to re-engineer the figures relied upon.500

[233] To further demonstrate that Alcoa had a positive financial profile, the AWU relied upon the Moody's Rating Action Document outlined in the Executive Summary of Mr Kamper’s report that stated ‘[s]hortly after the application, Moody’s risk rating agency announced an upgrade of AoA’s credit position due to its record year of both production and profitability’. 501 The Moody’s Rating Action Document set out that Alcoa had a strong financial profile for its rating category. It noted, however, that:

…upward rating pressure is unlikely given the single commodity nature of its operations and the impact of volatile commodities demand and pricing on earnings. Any further upward pressure would likely require an improvement in both Alcoa’s standalone business profile as well as the credit profile of Alcoa Corporation.

AOA’s ratings could be downgraded if its operating and earnings profile deteriorates beyond Moody’s current base case expectations. The rating could also be downgraded if AoA materially increases debt to fund shareholder distributions… 502

[234] When questioned in cross examination about the Moody’s rating principle and reference to a downgrading of Alcoa’s ratings, Mr Kamper accepted that in order for the rating to be maintained, at least on Moody’s rating principle, Alcoa should achieve the same, if not greater, returns for its shareholders then were presently the case. 503 Mr Kamper agreed that in order to maintain that rating Alcoa should seek to operate as efficiently as possible.504

6 Legislative scheme

[235] The various obligations and mechanisms to enable bargaining for the making of, approving, varying, and terminating an enterprise agreement are set out in Part 2-4 of the Act.

[236] Those obligations and mechanisms include an obligation to bargain in good faith, 505 and an ability to obtain, by order of the Commission, bargaining orders,506 serious breach declarations,507 majority support determinations,508 and scope orders.509 Additionally, Part 2-4 of the Act gives the Commission the ability to deal with a bargaining dispute.510

[237] However, it is Division 7 of Part 2-4 that sets out the legislative mechanisms for the termination or variation of an enterprise agreement. Subdivision C of that Division prescribes the manner in which an enterprise agreement may be terminated. Whether the enterprise agreement is in term, or has passed its nominal expiry date, termination is a separate and distinct process contemplated under the Act. The termination process can proceed at any time when steps are under way to arrive at a replacement enterprise agreement.

[238] The provisions for terminating an enterprise agreement past its nominal expiry date are set out in the following sections of the Act:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[239] When construing these sections in Re Aurizon Operations Limited, the Full Bench of this Commission stated that they must:

be construed in a manner that is consistent with the language and purpose of the provisions by reference to the language of the Act as a whole, and so the context, general purpose and policy of the provision are an important means by which the meaning and effect of a provision is to be ascertained. 511

[240] The objects of Part 2-4 provide that context, in addition to the objects of the Act, respectively below:

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.

[241] The means by which the Objects of the Act are to be achieved is set out in the various paragraphs enumerated in s 3 as follows:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.

[242] There remain other sections of the Act that provide context when construing s 226. In Re Aurizon Operations Limited, the Full Bench summarised those sections. For the sake of brevity they are mirrored here: 512

•  Provisions that enable employees to organise and engage in protected industrial action described as employee claim action and employee response action, 513 and those enabling an employer to respond to employee action through employer response action.514 Subject to compliance with the various statutory preconditions, such action when organised or taken will attract a limited immunity from suit.515 Unlike the corresponding provisions in the Workplace Relations Act 1996,516 an employer is not permitted to engage in protected industrial action for the purpose of supporting or advancing its claims in bargaining except in response to employee claim action.

•  Under the statutory scheme, whilst an employer and a valid majority of employees may make an enterprise agreement which has statutory effect if subsequently approved by the Commission, there is nothing in the scheme which compels bargaining parties to reach or make an enterprise agreement. This is made clear in the provisions dealing with the good faith bargaining requirements. 517

•  Division 4 of Part 2–4 contains the pre-approval steps, the approval steps and the content requirements for an enterprise agreement. Relevantly one of the content requirements is that an enterprise agreement must specify a date as its nominal expiry date and that date may not be more than 4 years after the day on which the Commission approves the enterprise agreement. 518

•  The operation of an enterprise agreement is dealt with in s 54 of the Act. An enterprise agreement commences to operate from either seven days after it is approved by the Commission or from any later date that is specified in the agreement. 519 An enterprise agreement will cease to operate either on the day on which a termination of the agreement comes into operation pursuant to ss. 224 – 227,520 or another enterprise agreement that covers the employees comes into operation and there are no employees to whom the first agreement applies,521 whichever occurs earlier.

[243] The Act provides a marked distinction between rights and obligations of those covered by an enterprise agreement during the nominal term, and after the expiry of the nominal date. For example, during the nominal term, no industrial action may be organised or engaged in, 522 and industrial action may be prevented by order of the Commission.523

[244] The legislative scheme facilitates the making of enterprise agreements, but does not mandate that result. Once an enterprise agreement is made, and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. 524 Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act, or both may occur.

7 Alcoa’s submissions

7.1 Section 226

[245] Alcoa submitted that the Commission should determine the Application by applying six relevant matters concerning s 226 in the following manner:

•  there are two mandatory factors – the factor in s 226(a) and the factor in s 226(b);

•  the factor in s 226(a) is a negative factor – termination is not contrary to the public interest (as opposed to being a positive factor that termination is in the public interest);

•  the factor in s 226(a) is conditioned on the ‘satisfaction’ of the Commission (as opposed to being an objective fact);

•  the factor in s 226(b) requires consideration of all of the circumstances of the case, as well as the matters specified in sub-paragraphs (b)(i) and (ii);

•  the factor in s 226(b) is conditioned on the ‘consideration’ of the Commission (as opposed to appropriateness of termination being an objective fact); and

•  if the Commission is satisfied of the two mandatory factors, the Commission must terminate the enterprise agreement (as opposed to the Commission exercising a discretion to terminate the enterprise agreement). 525

7.1.1 Not contrary to the public interest

[246] According to Alcoa, the termination of the Agreement is not contrary to the public interest. It submitted this is the case for reasons outlined below.

•  Employees will be protected by their access to a guaranteed safety net of fair, relevant and enforceable minimum conditions (in the form of the AIA and the NES) if termination occurs. 526

•  Alcoa has sought to negotiate in good faith with the AWU for a new enterprise agreement to replace the Agreement over a period of 20 months, but it has been unable to reach agreement on such an agreement (and thus Alcoa has engaged in the collective bargaining anticipated and encouraged by the Act). 527

•  The termination will not lead to the non-fulfilment of other matters associated with the objects of the Act (such as the right to representation in bargaining or to access an alternative dispute resolution process).

•  The termination will not lead to the undermining of collective bargaining in a broader public sense (as opposed to the impact on the parties). 528

•  The termination will not lead to inflation. 529

•  The Agreement contains benefits that significantly exceed the conditions under the AIA and applicable legislation. 530

•  Collective bargaining will continue with a proper focus on the significant enhancement of terms and conditions being offered by Alcoa when judged by reference to the AIA (as opposed to previously negotiated and outdated terms), and thus termination of the Agreement will assist the parties to reach agreement on a new enterprise agreement. 531

•  Termination will remove a range of terms which restrict or impair Alcoa’s productivity, and will thus facilitate the making a new agreement which delivers to its operations productivity improvements.

•  There are no public interest considerations that militate against termination of the Agreement.

7.1.2 Appropriateness

[247] With regard to the second limb of s 226, Alcoa advanced that the termination of the Agreement is appropriate for the reasons set out below.

•  Alcoa (as the employer) is of the view that the Agreement should be terminated.

•  There is ample evidence that the existing provisions of the Agreement are having, and whilst in operation will continue to have, a negative impact upon Alcoa's productivity and efficiency, and restrict or impair, in a material way, the management of its operations.

•  Whilst the AWU and, through their bargaining representatives, the Employees, oppose the termination, they have had every opportunity to negotiate a replacement agreement with wage increases, and conditions significantly more favourable than the AIA and have failed to make a replacement agreement.

•  On the evidence there is no matter of substantial merit in the reasons for opposing termination of the Agreement.

•  There is no adverse effect on the AWU by the termination as the AWU will still continue in its representative role in respect of the Employees (including in relation to negotiating a replacement agreement).

•  the event that a new enterprise agreement is not made in the upcoming vote (by the time of hearing it was not), there is no likelihood of the parties reaching an agreement on the terms of a new enterprise agreement in the current bargaining circumstances if the application to terminate the Agreement is dismissed. 532

•  Whilst termination of the Agreement will alter the bargaining of the parties, such an outcome is not contrary to a fair framework for collective bargaining, or the facilitation of good faith bargaining – indeed, such an outcome is part of the scheme of the Act – and will not preclude the Employees taking, or the AWU organising, protected industrial action. 533

•  The extent of any reduction in remuneration may be limited by the AWU and the Employees making a new enterprise agreement in different bargaining circumstances, and accordingly, the extent of the reduction will be in the hands of the AWU and the Employees. 534

[248] Further, Alcoa stated that the factors listed below were relevant considerations relating to the appropriateness of termination:

•  First, the nominal expiry date of the Agreement was 31 March 2017; 535 seventeen months have passed since that expiry.

•  Secondly, employees will continue to receive the benefit of the safety net in the form of the AIA.

•  Thirdly, there will be a reduction in terms and conditions of employment upon termination of the Agreement but Alcoa has offered to minimise the impact by its undertaking.

•  Fourthly, the AWU and the employees will maintain their rights to take protected industrial action, and the AWU has said that it intends to do so.

•  Fifthly, Alcoa intends to continue bargaining with the AWU after the termination of the Agreement. 536

•  Sixthly, a significant number of terms of the Agreement have an adverse impact on Alcoa's ability to conduct its operations to suit its needs.

8 AWU’s Submissions

8.1 General

[249] The AWU submitted that it was not contentious that in 2014, the terms of the Agreement were acceptable to Alcoa. When it came to why that position had changed come 2018, Mr Crawford pointed to the evidence of Mr Gleeson who had referred to a period in 2016 where the alumina price moved in a more volatile and quicker fashion. 537 Similarly, Mr Smith had referred to the alumina price being the main external factor which exerted pressure on Alcoa.538 The AWU acknowledged that the evidence established that the alumina price was reasonably stable from 2013 until 2015 and then it dropped significantly in 2016.539

[250] However, by 2017 the alumina price had resumed its pre-2015 level and had remained reasonably stable in 2017 and 2018. Further, the world alumina price forecast appeared to remain relatively stable with a gradual decline in 2023. Mr Crawford advanced that there was simply insufficient evidence before the Commission to establish that the world alumina price was currently volatile, or that it would be in the near future. Terminating the Agreement on the basis of volatility of world alumina prices was, according to the AWU, a risky proposition for the Commission.

[251] Mr Crawford advised that the Commission should approach Alcoa’s argument that disputation with the AWU justified the termination of the Agreement with caution given the AWU and its members have a workplace right to dispute matters under the Agreement, and are protected from adverse action.

[252] Reference to Alcoa’s net profit figures was such that the Commission could conclude, according to the AWU, that Alcoa was an extremely profitable company. While the Agreement had been in operation it was evident that Alcoa had been able to record total net profits in excess of $2 billion dollars, and the evidence demonstrated that Alcoa already had a relatively low cost operation in comparison to its international competitors. The AWU admitted that 2014 and 2015 were challenging years for Alcoa, but nevertheless, the evidence showed that Alcoa posted profits totalling $861.2 million during those years.

[253] The AWU submitted that the Agreement had not led to any increase in labour costs, 540 and there was no evidence that labour costs had inhibited Alcoa’s economic performance whilst the Agreement was in operation.

[254] With regard to the ongoing demand for labour, Alcoa had made positive operational changes including the exportation of bauxite, which Mr Gleeson is said to have accepted in cross examination. 541 However, Mr Smith’s evidence was that the current export volume of bauxite was not guaranteed, and a stable supply of bauxite tonnes did not necessarily equal a stable labour requirement.542 However, according to the AWU it was the case that the export of bauxite was a significant recent operational improvement for Alcoa.

[255] The Agreement included within it several flexibilities, including permitting the use of contractors, 543 labour hire,544 and outsourcing.545 The AWU advanced that Mr Fennessy conceded under cross examination that Alcoa was able to implement a change to shift rosters, and that this change had delivered cost savings for Alcoa.546 The evidence established that Alcoa was able to operate flexibly under the Agreement and achieve cost savings as a consequence.

[256] The AWU conceded that bargaining had been protracted. It said, however, this was because Alcoa was attempting to make widespread reductions to the terms of the Agreement. Additionally, the AWU noted that it had made Concessions, subject to a decision being made to terminate the Agreement. The Concessions made appeared to deliver the overwhelming majority of the cost outcomes Alcoa was seeking. Yet, Mr Gleeson had refused to confirm that Alcoa would not make an inferior offer to that recently voted down by employees if the Agreement was terminated. The AWU submitted that this was opportunism based on additional leverage.

[257] The consequences of terminating the Agreement could result in a wage reduction of up to 60% for affected employees. The AWU contended that this was something that Mr Gleeson had accepted, 547 and Mr Fennessy referred to the rates in the AIA being 40% to 50% less than the Agreement rates.548

[258] From an evidential perspective, the AWU advanced that the Commission was compelled to prefer its evidence over Alcoa’s because it was objective evidence about Alcoa’s financial position and operating environment. Alcoa had not led its own economic evidence regarding its performance, and the only objective economic evidence led by Alcoa was Mr Gleeson’s reference to generic data about labour costs in Australia. 549

[259] The AWU identified that the problem with relying on the subjective evidence of Alcoa’s Managers instead of objective economic data was highlighted in the evidence given by Mr Gleeson. In this respect, the AWU referred to a passage in cross examination which included an assertion by Mr Gleeson that ‘the financial statements may be greatly improved if we didn’t have unnecessary impositions by virtue of the Agreement’. 550 Mr Crawford put to Mr Gleeson that he didn’t know that the financial statements would be greatly improved if those ‘unnecessary implications’ were removed. Mr Gleeson conceded, but added that because the Agreement had not been terminated, Alcoa had not operated in that environment.

8.2 Not contrary to the public interest

[260] The AWU submitted that the matter before the Commission was a critical one. The industrial climate showed a lack of wage growth and a profitable multi-national employer was seeking to terminate an enterprise agreement in circumstances where it had recorded net profits totalling around $2.2 billion while that same enterprise agreement had been in operation. The AWU’s contention was that Alcoa should not be permitted by the industrial umpire to reduce its employee’s wage by 40% to 60% via that termination.

[261] According to the AWU, there is an apparent lack of wages growth in Australia currently, and that is a significant economic problem. As a critical public institution for regulating employment conditions in Australia, the Commission needed to be particularly conscious of the problems with the Australian economy when undertaking its functions under the Act. The AWU continued that granting the Application would be another step toward entrenching low wages growth in Australia.

[262] The AWU put forward that, given Alcoa’s financial position, the fact that the Application had been made spoke volumes about why wages growth was currently such a problem in the Australian economy.

[263] With regard to the operation of s 225 of the Act, it was the view of the AWU that granting the Application would extend the operation of s 225. This was because the circumstances of Alcoa were far different to those encountered by other employers who had terminated enterprise agreements. Alcoa had, according to the AWU, failed in its case to establish any operational necessity to terminate the Agreement. Further, bargaining had not reached an impasse and the AWU had agreed to the Concessions, demonstrating a recent breakthrough in negotiations. Given the Concessions, it was said that the parties were close to reaching an agreement.

[264] The AWU submitted that at best Alcoa had demonstrated, through the subjective evidence of its three Managers, that it felt it could operate more efficiently if the restrictive clauses of the Agreement did not apply. The AWU concluded that this was an extremely low bar and a test that the overwhelming majority of employers covered by expired enterprise agreements could meet.

8.3 Appropriateness

[265] Unsurprisingly, the AWU confirmed that it opposed the termination of the Agreement as did the affected employees.

[266] The AWU said that circumstances were such that they weighed in favour of the Commission determining that the Agreement should not be terminated. In short, those circumstances included Alcoa’s profitability, its low cost basis, record net profit during difficult operating environments, no indication that labour costs were a negative factor for its operations, the Agreement allowed flexibility, and the Concessions meant that Alcoa had already achieved wide ranging reforms.

[267] As for the impact on bargaining, it was the AWU’s position that the evidence demonstrated that the parties were very close to reaching an agreement based on the extensive Concessions made by the AWU. There was no need to terminate the Agreement for Alcoa to receive the overwhelming majority of changes it had sought during bargaining.

[268] The AWU submitted that if the Agreement was terminated the parties would be further apart as the Concessions would not apply. They said that this may generate a deadlock as opposed to resolving one, and therefore the effect on bargaining weighed against a finding that it was appropriate to terminate the Agreement.

[269] Regarding the impact on employees, the AWU said the employees stood to have their wages reduced by 40-60% if the Commission terminated the Agreement. Whilst there was an Undertaking for a period of 6 months, the AWU contended the Commission could not be confident that a new agreement would be struck within that period. The AWU said that such factors weighed against a finding that it was appropriate to terminate the Agreement.

[270] The impact on Alcoa would simply be that it operated in the same industrial environment generating profits of the kind seen while the Agreement was in operation. The AWU put forward that the Commission could be satisfied that if the Agreement was not terminated, and alumina prices plummeted Alcoa could remain profitable.

9 Section 226(a) – The public interest

[271] The AWU submitted that the Application could not simply be granted by applying the existing case law to the facts in this case. Nonetheless, it is that very case law that sets out the relevant principles and considerations that are to be regarded when determining if the Commission is satisfied that it is not contrary to the public interest to terminate the Agreement. It is for that reason such principles and considerations are traversed and are at front of mind when determining whether the Commission is satisfied, or not, that the termination of the Agreement is not contrary to the public interest.

[272] Without detracting from the authorities that have considered the notion of public interest, and having considered those cited, the relevant principles can be summarised as follows:

•  the evaluative process required by s 226(a) and (b) is a ‘narrow’ discretion, 551 but allows a degree of latitude on the part of the decision-maker as to the conclusions to be reached;552

•  the public interest involves considerations distinct from, and broader than, the interests of the parties, 553 and the Commission should be guided by the likely foreseeable consequences of termination on the public interest rather than speculation about possible consequences;554

•  the public interest includes consideration of matters such as the achievement of the objects of the Act (including by assisting the parties by termination to reach a new agreement, and agreements that deliver productivity improvements), employment levels, inflation, and maintaining proper industrial standards; 555

•  the likelihood of termination enhancing or reducing the prospects of a new agreement through bargaining is a consideration; 556

•  there is no presumption that termination is contrary to the public interest because it occurs at a time when collective bargaining is occurring; 557

•  there is also no inherent inconsistency between terminating an enterprise agreement and bargaining subsequently in good faith; 558

•  there is no presumption that productivity benefits (one of the means of achieving the objects of the Act) are only fulfilled by entering a new enterprise agreement and such benefits may in fact be achieved by terminating an enterprise agreement; 559 and

•  there is no presumption that the termination is contrary to the public interest because it alters the bargaining positions of the parties, especially given that termination is part of the scheme of the Act. 560

9.1 Consideration – The public interest

[273] When considering the notion of the ‘public interest’ the focus is not confined to the interests of those negotiating, but instead, as the reference to ‘public’ suggests, it extends to matters that affect the public as a whole. In Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (Kellogg), 561 a decision that considered an equivalent provision to s 226(a), but in the Workplace Relations Act 2006 (Cth), the ‘public interest’ was described by reference to examples such as the achievement, or otherwise of various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. That is not to say that the interests of the negotiating parties are irrelevant, but their relevance is only as such as they shed light upon the effect of the termination on the ‘public interest’. As observed by the Deputy President in AGL Loy Yang Pty Ltd T/A AGL Loy Yang,562 the Full Bench of this Commission has applied Kellogg and I will therefore do the same.

[274] Before turning to address the AWU’s submissions on the public interest, I observe that factors considered to determine whether I am satisfied that the termination is ‘not contrary to the public interest’ are at times similarly considered when determining the ‘appropriateness’ of termination. This has arisen for the most part as a result of the submissions received. To minimise repetitiveness, when considering ‘not contrary to the public interest’ and ‘appropriateness’ in a later section of this decision, cross-references will be made only in so far that there is relevancy to the subclause of s 226 under consideration.

[275] The AWU submitted that the primary object of the Act is to ‘promote national economic prosperity’ including by promoting ‘economic growth’ and currently the industrial climate was one where there was a lack of wages growth. Following that line of reasoning the essence of what the AWU was contending was that in this current environment Alcoa should not be permitted by the industrial umpire to reduce its employee’s wages by 40% to 60%, because it was a profitable business, or rather, a significantly profitable business, while the Agreement operated.

[276] The AWU continued that the matter was a critical one for the Commission and asserted that as a public institution for regulating employment conditions in Australia, the Commission needed to be particularly conscious of the problems with the Australian economy when undertaking its functions under the Act. Granting the Application would, according to the AWU, be another step toward entrenching low wages growth in Australia.
[277] The AWU led evidence through Mr Allen that Alcoa had started operations in Australia in 1961 and was (and is) an extremely profitable and successful business. 563 Similarly, Mr Price held the view that the company was making more money than it ever had.564

[278] Mr Kamper was called to give evidence about the financial circumstances of Alcoa. Through his evidence, it was revealed that Alcoa had posted net profits, culminating in a larger net profit in 2017 in comparison to the years 2013 – 2016 combined. 565 Alcoa took no issue with this, and it can be surmised that Alcoa’s profitability per se, was not disputed.

[279] However, as observed, the AWU took issue with Alcoa’s profitability against a backdrop of what it considered was a consensus of wage growth stagnation and its move to decrease wages trough the termination. Yet it is the case that the abovementioned factors do not, in my view, weigh against a finding that the termination is not contrary to the public interest, as will be explained.

[280] The object of the Act is to promote ‘national economic prosperity’. However, that reference to ‘national economic prosperity’ sits within a section of the Act that refers to the object of providing a ‘balanced framework for cooperative and productive workplace relations’ that then ‘promotes national economic prosperity and social inclusion for all Australians’. 566 I consider this point further at paragraphs 285 and 353, but observe that the promotion of national economic prosperity follows from a balanced framework for cooperation and productive workplace relations.

[281] I turn now to the AWU’s assertion of entrenching low wage growth. In exercising its powers under Part 2-4, Division 7, Sub-Division D of the Act, the Commission is not exercising the powers of setting minimum wages, varying modern awards to address any questions of ‘wages growth’, nor setting safety net standards. The sections giving the Commission power in relation to these matters are situated in other parts of the Act. In the context of considering s 226(a), the Commission’s regulation of employment conditions in Australia, such as its responsibilities for setting minimum wages, is not a relevant consideration.

[282] As to the maintenance of proper industrial standards, this would be achieved initially by the Undertaking proffered by Alcoa that safeguards rates of pay, allowances and superannuation. I note that the AWU voiced no objection to the content of the Undertaking, although it was acknowledged that its duration was for 6 months. Thereafter, the employees, if they have not negotiated another enterprise agreement or alternative arrangement, would have the benefit of the AIA. The AIA resulted from the modernisation process. In such circumstances, the presumption would appear correct that it sets a standard that is proper. Additionally, it is accompanied by the NES.

[283] The evidence from Messrs King, Allen, and Price suggests that AIA is not as generous in its terms as those currently afforded to the employees under the Agreement. However, the generosity of those terms, or lack thereof, in comparison to that which the employees currently receive does not in turn mean that the relevant modern award does not set a proper industrial standard. As was observed in Aurizon it cannot be expected that the terms and conditions of an agreement will continue unaltered, in perpetuity, after that agreement has passed its expiry date. 567 The AWU and employees have had every opportunity to negotiate a replacement agreement with wage increases, and conditions more favourable than the AIA. To date, this has not been achieved even though the last offer of Alcoa was said to have included higher rates of pay. Further, it is not simply the case that on the termination of the Agreement the AIA would set the terms and conditions of employment; it is not a fait accompli. Clearly, there exists a period, courtesy of the Undertaking, in which the parties can negotiate in good faith to secure their deal. There was no contention that the Undertaking was unenforceable.

[284] It was advanced by the AWU that while there may not be a direct attempt to reduce monetary conditions through bargaining, Alcoa was aware that its attack on job security and the role of the AWU within its business would greatly enhance the prospect of reducing future wage costs. The evidence tendered showed that Alcoa’s latest offer included protections in respect of involuntary redundancy and, again, there was no indication of wage reductions. 568 In short, the claim was absent probative evidence and can only be considered speculative, rather than addressing a likely foreseeable consequence.569

[285] Alcoa’s current profitability does not weigh against the termination of the Agreement; particularly where it has a rational basis for pursuing the changes in respect of restraints of the nature covered in this decision. This is an important point. Detailed evidence shows that there have been practical and operational impacts arising out of the operation of the Agreement. These have included marked delays in making operational changes or being able to act upon decisions, the expenditure of management and member time, and disharmony within the workplace. While evidence was given on behalf of the AWU that the Agreement allowed flexibility and productivity, in addition to allowing Alcoa to make the changes it sought, I am nonetheless satisfied there are marked limitations and restrictions on Alcoa’s ability to operate its business in a manner responsive to the nature of the industry, and commercial environment in which it operates. This is not to deny that, at times, cooperation between employees, Alcoa, and the AWU has existed. However, if it is a balanced framework for cooperative and productive workplace relations that sits as an object of the Act, the Agreement does not appear to epitomise that object (see paragraph 353 for an example).

[286] The limitations and restrictions referred to will be expanded upon when ‘appropriateness’ is considered, but for the time being it is observed that the limitations are unable to be reduced to mere conjecture or bare assertions. Probative evidence was given by three witnesses (the three Managers) who provided a frank account how the Agreement has interfered in managerial decision making and the way in which it impedes Alcoa’s flexibility. Further, it is apparent that some of the disputes identified arose because of the perception of ambiguity in some of the Agreement’s clauses.

[287] There is no presumption that productivity benefits (one of the means of achieving the objects of the Act) are only fulfilled by entering a new enterprise agreement. In fact, such benefits may be achieved by terminating an enterprise agreement. 570 I consider that the evidence shows that the existing provisions of the Agreement are having, and whilst in operation will continue to have, a negative impact upon Alcoa’s productivity and efficiency. While Mr Crawford directed my attention to Alcoa’s labour costs, and submitted that the Agreement had not led to any increase to labour costs for Alcoa,571 it is evident there have been costs, delays, and inefficiencies arising from the ‘2005 Arrangements’ and matters identified in the key issues that the AWU and its members have persistently protected. However, it is not the case that it is only the restrictions in the Agreement that render it not contrary to the public interest to terminate the Agreement. There are multiple factors that, when considered together, lean towards that finding.

[288] Mr Gleeson, who had been the lead for Alcoa in the bargaining, expressed that the AWU’s approach to bargaining had been characterised by its view that terms and conditions under the Agreement were an entitlement that it, and its members, were not prepared to give up. 572 As much was conceded by Mr Price, who gave evidence that the AWU’s members, he thought, didn’t ‘want to lose 50% of their income and all the conditions that they’ve negotiated over a long time’.573

[289] Mr Gleeson held the view that the AWU’s approach showed there was no incentive to negotiate an outcome if it detracted from what the AWU currently had. 574 This had, according to Mr Gleeson, been an inhibiting factor for negotiations to date.575 Determined efforts had been taken by Alcoa to end the basis upon which there were full-time convenors within the business.576 However, Mr Gleeson observed that the AWU had made no attempt to put forward an alternative structure that might serve the interests of both parties.577 It was his view that the termination of the Agreement would enhance bargaining because the bargaining dynamic would be reset.578

[290] There is an observation to be made that granting the Application will alter the bargaining position of the parties. However, in the circumstances of this matter and for reasons expressed, I do not consider this contrary to the object of the Act’s framework for collective bargaining and facilitating good faith bargaining. The termination of the Agreement does not impact upon the battery of provisions which facilitate collective bargaining under the Act, of which both parties are able to avail themselves to secure a new deal.

[291] Bargaining has been protracted, extending to approximately 20 months with little movement on the key issues, until such time as the AWU filed and served its ‘Concessions’ via the witness statements of its witnesses. Even then I am not persuaded that the Concessions demonstrate movement in the bargaining given their conditional nature. There was no contention from either party that the bargaining had not been conducted in good faith, and I consider that terminating the Agreement would not alter that position.

[292] Witnesses for the AWU expressed worry about the future of the bargaining process and said that there would be substantial harm done if the Commission terminated the Agreement. 579 Mr Price stated that if the Agreement was terminated the membership would consider that Alcoa had taken significant industrial action against them and would respond in kind.580 Mr King expressed that a termination would result in a dramatic distance between the parties’ positions.581

[293] There is something to be said on these points. First, it is contrary to the terms of Part 2-4 to interpret the exercise of the right under s 225, or the exercise of the power by the Commission under s 226, as providing the basis for retaliatory industrial action against an employer. The termination of an enterprise agreement under these sections is not the employer taking ‘significant industrial action’ against employees covered by the agreement.

[294] In CEPU v Aurizon Operations Ltd it was said that in the context of an ongoing single-enterprise, business, the most obvious situation in which recourse might be had to s 226 would be where an existing agreement had passed its nominal expiry date but where no new agreement had been made. 582 It was this very scenario where collective bargaining is likely to continue, that protected industrial action might be taken.583 The Full Federal Court have made this clear by noting that ‘the proposition that, as a matter of statutory policy, there should be a predisposition towards regarding it as contrary to the public interest to terminate an enterprise agreement during a period when collective bargaining is taking place must, in the circumstances, be regarded as a most unlikely one’.584

[295] Second, Mr Price confirmed that if the termination did occur then the AWU would try and reach an agreement, would not act capriciously or in bad faith, and would utilise protected industrial action, as an option to gain leverage. 585 When asked whether the termination would preclude the AWU from putting sensible concessions on the table of the kind in the Concessions, Mr Price said it would not.586

[296] The AWU put forward that the parties were close to an agreement, and if the Agreement was terminated the most likely outcome would be a lengthy and bitter industrial dispute. Alcoa and the AWU would, in the circumstances of a termination, be well apart in terms of their bargaining positions because the AWU said their Concessions would fall away. However, the evidence of Mr Price was to the effect that he could not say whether the Concessions would be withdrawn or not. 587

[297] A suggestion of ‘walking away’ from the Concessions would be a choice exercised by the AWU and its members. It would clearly impede the making of a new agreement on favourable terms. However, to reiterate, that would be the AWU’s and/or its members’ choice. A choice that would seemingly be exercised in circumstances where it had made Concessions (although conditional and in certain respects only in general terms) with a view to reaching a new agreement.

[298] Alcoa submitted that the AWU’s purported withdrawal of the Concessions on termination is an assertion to be approached with caution due to its lack of credibility. During the bargaining process, which commenced in December 2016, until such stage as the Application for termination came into play and witness statements were filed, the Concessions had not been proffered. At hearing it was not clear when or to whom the Concessions were made in bargaining meetings, and what their precise terms were. 588 I refer to the viva voce evidence given by Mr Price on this point, which did not convince me that the Concessions were made in a bargaining meeting, given his reticence, at times, to provide a straight answer.589 

[299] However, Mr Price appeared to be providing straight answers when asked whether all of the Concessions would come off the table and he replied ‘well, I can't say what would come off the table and what wouldn't come off the table’. 590 Whether the Concessions would or would not be withdrawn is difficult to say. On the one hand the witness statements of Messrs Allen, Price and King make the statement that the Concessions ‘will no longer apply’ on termination because ‘Alcoa will have dramatically altered the state of bargaining and the AWU cannot be held to previous concessions in those circumstances’, and Exhibit R8 purports the same approach, yet the evidence of Mr Price was that he could not say. The Commission should, when considering the public interest, be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences. On the evidence before me, I cannot conclude that the likely foreseeable consequence of termination would be the withdrawal of the Concessions.

[300] Effort to date has not resulted in the making of a new enterprise agreement; clearly the last offer put forward by Alcoa was rejected. The AWU submits that there is not an impasse; it is evident that there is. While the Concessions have been made during the course of these proceeding through their inclusion in the witness statements of the AWU’s witnesses, and in the context of Exhibit R8, it is important to make the following observations.

[301] Mr Gleeson’s evidence was, when asked about the Concessions:

Well, we're not clear - I'm not clear what these concessions are.  That's why we wrote to the AWU, to say after all this bargaining many of the concessions in these statements have never been made and never been proffered and never even be hinted at; we want to know if that's your true position, and we never received a response. 591

[302] It was not until the hearing was on foot that a response of the kind which Mr Gleeson referred to was forthcoming from the AWU. That response, a letter from Mr Zoetbrood, the Secretary of the AWUWA, was admitted into evidence. 592 However, whether the Concessions appear in the witness statements, or the later letter they nevertheless appear, in parts, to lack clarity; and save for Alcoa’s witnesses being cross-examined on them, there has been no discussion between the parties with a view to understanding what precisely is being offered.

[303] It appears highly improbable that members of the AWU would prefer to be covered by the AIA in preference to their bargaining representative putting to Alcoa, in the context of bargaining, concessions of the kind already identified to achieve a much more beneficial outcome. This is particularly the case given what has been said regarding the lack of generosity provided by the AIA terms in comparison to the Agreement. While the evidence suggests that the Concessions did not go all the way in addressing the key issues between the parties, the evidence before me does not persuade me that the AWU or its members, or for that matter Alcoa, would take a foolhardy approach. Alcoa would clearly have much to lose regarding the trust and engagement of its employees, were it to take an unbalanced approach to the negotiations of future terms and conditions.

[304] I am persuaded that the AWU’s tenacious approach to preserve the ‘2005 Arrangements’ has, in part, contributed to the period of protracted bargaining. 593 This, in combination with the timing of when the Concessions were made, their conditional character, the context in which they were made, their lack of specificity, and an absence of discussions between the parties concerning the content of the Concessions, has allowed me to arrive at the conclusion that an impasse has been reached.

[305] The impasse and the purported approach that would be adopted to further bargaining, observing what was said by Mr Price about bargaining in good faith should reversion to the AIA be imminent, are considerations that weigh toward a finding that termination of the Agreement would not be contrary to the public interest.

[306] I am satisfied that if the Agreement was terminated, bargaining would continue with a proper focus on the significant enhancement of terms and conditions being offered by Alcoa compared to those contained in the AIA. This is as opposed to a comparison being drawn to the terms and conditions in the ‘2005 Arrangements’ and key issues, 594 factors which Alcoa has considered to be an inhibiting factor for negotiations to date.

[307] As observed, there is no presumption that the alteration of the parties bargaining position weighs against a finding that a termination is not contrary to the public interest; this is especially so given that termination of an enterprise agreement is part of the scheme of the Act. 595 If the bargaining dynamic is reset as a result of termination, in the circumstances of this matter, I am satisfied the termination would nevertheless not be contrary to the public interest.

[308] The AWU contended that Alcoa had not established any operational necessity to terminate the Agreement and that it had voluntarily agreed to the terms of the Agreement, that is, they were not ‘inherited’ from a public sector past; a factor that was considered significant in Aurizon. 596 Regarding this submission, it is evident, and this decision has outlined in some detail, the operational limitations that the Agreement imposes upon Alcoa. These limitations are further expanded upon when considering the ‘appropriateness’ of termination.

[309] During the term of the Agreement, Alcoa has identified factors justifying a departure from the Agreement’s terms, including the operational impact brought about by the Agreement in addition to the unforeseen impact on Alcoa's profitability from the volatile market price for its product. Alcoa submits this has resulted in the conclusion that it could not have in place agreements such as the Agreement, which do not have the flexibilities to enable Alcoa to respond appropriately and promptly to changed market conditions. 597 While the economic forecast appeared positive for Alcoa’s product, the forecast is simply that and it is not guaranteed.

[310] Concerning the second part of the submission, an employer is not forever precluded from accessing the particular statutory provisions now being considered because there was a moment in time where it agreed to the terms of a proposed agreement, the agreement was made, approved, and thereafter operated, rather than it ‘inheriting’ the agreement. Again, it has been made clear in Aurizon that the terms and conditions of an agreement are not expected to continue unaltered in perpetuity after it has passed its nominal expiry date. 598 In this matter, the Agreement passed its nominal expiry date in March 2017, some 20 months ago.

[311] I am satisfied on the evidence before me that terminating the Agreement would not be contrary to the achievement of the Act’s objects. Further, there is no suggestion that the termination would lead to the non-fulfilment of objects of the Act such as the right to representation in bargaining, or to access an alternative dispute resolution process. In addition, there is no evidence to show that the termination would lead to an undermining of collective bargaining in a broader public sense, that there would be an oversupply of labour, nor the significant loss of employment.

[312] The AWU put forward that given the large number of employees involved at five different locations in Western Australia, the termination of the Agreement would likely have a negative impact beyond Alcoa and the AWU. While this may be the case it can be taken no further than the assertion made. This is because there is insufficient probative evidence before me to consider supporting the perceived negative impact. In these circumstances, I am unable to arrive at a definitive conclusion regarding that which was asserted.

[313] I have considered the evidence, submissions and documentary material before me. Having done so, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

10 Appropriateness

[314] The approach to assessing appropriateness under ss 226(b)(i) and (ii) has been set out in the Full Bench decision of Aurizon, and I repeat what was written there:

All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s 226(b) to take into account all of the circumstances including those set out in s 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s 226(b)(i) and (ii). 599

[315] When assessing appropriateness in this context, several principles are evident from the existing case law. They include:

•  the question of appropriateness requires an overall judgment based on all the relevant circumstances of the application; 600

•  there is no right or expectation that an enterprise agreement continues in perpetuity after its nominal expiry date; 601

•  there is no presumption or predisposition against terminating an enterprise agreement after the passing of its nominal expiry date; 602

•  there is no inherent inconsistency between terminating an enterprise agreement, and bargaining subsequently in good faith; 603

•  the question of appropriateness involves not only a consideration of the views of the parties but also the reason for those views; 604

•  the fact that remuneration will be reduced if termination occurs does not mean that it is not appropriate to terminate an agreement; 605

•  there is no requirement for an employer to provide an undertaking to maintain terms and conditions of employment in order for termination to be appropriate; 606 and

•  the Act does not express an objective of ‘equity in relation to a party’s “power” status’ ‘in bargaining’. 607

10.1 Consideration – Appropriateness

[316] I accept that the AWU opposes the termination of the Agreement and the evidence indicates that its members are similarly opposed. Their opposition is not without basis, and the witness statements of Messrs Price, King, and Allen clearly detailed what they considered their salaries would be if the AIA set pay rates.

[317] Mr King’s evidence was that there would be a $50,000 difference between his earnings now and those that he had calculated on the basis that the Agreement was terminated and he was paid under the AIA. 608 Mr King said that this would make a big difference to his life, because he still had children at school and ‘$50,000 out of a pay packet would break a person’.609 He could not see how his drop in income could be justified in circumstances whereby Alcoa ‘were making great profits at the moment’.610

[318] Similarly, Mr Price gave evidence that if the Agreement was terminated and he was paid in accordance with the AIA then he would lose 60% of his income, and most employees would lose over 50% of their current earnings. 611 The repercussions of such a loss would include, for Mr Price, an inability to service his mortgage and vehicle lease commitments, in addition to re-evaluating health insurance.612 Further, his superannuation, as a defined benefit, would be significantly affected.613 The reality of the situation was, according to Mr Price, that no one could sustain a 60% drop in income and many members had said they would have to leave.614

[319] For the full-time paid Convenors, I appreciate they are placed in an unenviable position. There would, at the very least, be uncertainty about the nature of their positions. Their positions have been within Alcoa’s business for many years. Undoubtedly the removal of those positions would impact the gentleman who gave evidence on behalf of the AWU in these proceedings.

[320] While the gentleman may be affected, I am satisfied that there would be no adverse effect on the AWU by the termination as there would be nothing to impede the AWU in its representative role under the Act, in respect of the employees, including in relation to negotiating a replacement agreement.

[321] With regard to the circumstances of the employees, I accept that for a period their wage rates would remain unchanged, and if a new agreement was not reached it may be the case that the AIA would set the terms and conditions of employment.

[322] These are not insignificant factors but, they must be balanced against the Undertaking that has been provided by Alcoa to maintain the rates of pay under the Agreement for six months. The AWU and its members remain able to continue their negotiations with Alcoa to secure what they consider a suitable deal. That deal may still include provisions directed toward job security. It remains open to the parties to avail themselves of the provisions under the Act that would assist them in securing such a deal. Concerns about the loss of financial benefits will only be a reality if a replacement agreement is not negotiated and approved within the six months of termination. 615 The content of a new agreement will not be determined by termination of the Agreement, but will be in the hands of the negotiating parties.

[323] If, as the AWU asserts, the parties are very close to reaching a new agreement, then the termination of the Agreement is far less likely to have a negative impact or effect on employees covered by the Agreement. The proposed agreement, favoured by Alcoa, and upon which it invited employees to vote, contains increases in remuneration and allowances and other financial benefits, all of which may negate the argued adverse effects following on termination. The evidence supports a conclusion that the parties all want to put in place a new agreement. 616 In these circumstances, I am of the view that these factors do not weigh against a finding that the termination of the Agreement would be appropriate.

[324] Much was made of Alcoa’s profitability during the operation of the Agreement. If the figures of Mint Global are to be believed, a drop in revenue whilst the Agreement was in operation was evident. More reliable, however, was the evidence of a significant decrease in the price of alumina in 2015 and 2016; this drop, and the uncertainty of the alumina price played into Alcoa’s approach to bargaining this time around.

[325] To reflect only on the profitability of Alcoa’s business in more recent times does not provide a fulsome picture of Alcoa’s susceptibility to a fluctuating market where product diversity is limited, and profits may, in part, arise from the exchange rate. 617 It was acknowledged by Mr Kamper that while in general forecasts were positive for Alcoa, there was no way of predicting with certainty where the prices were going to end up this year or onward.

[326] Mr Kamper agreed that it was correct that there were no principles that suggested a company should not seek to make additional profits for its shareholders. Nevertheless, the AWU submitted that a profitable business such as Alcoa should not be permitted to succeed with an application that would entrench low wages growth. I do not intend to repeat myself, but simply refer to what I have written regarding the entrenchment of low wages growth when considering whether the termination is not contrary to the public interest. I consider it equally applicable here.

[327] The Act does not contemplate that profitability being achieved or sought should stand in the way of a termination application if there is merit for the removal of barriers that affect productivity and efficiency. 618 As was said by the Deputy President in Loy Yang:

In the circumstances of this Application, I do not consider the fact that AGL Loy Yang is a profitable and productive business should weigh against termination of the Agreement. As outlined above, it has previously put two offers with the wage increases outlined and I consider it has a rational basis for pursuing the changes it seeks to make to the Agreement and it is legitimate for it to seek to become more efficient and productive through bargaining. 619

[328] On appeal, the Full Bench considered it was reasonably open to the Deputy President to treat the fact that AGL Loy Yang was a profitable and productive business as a neutral factor, rather than as something necessarily weighing against the appropriateness of termination of the agreement. When considering an argument that Alcoa has been profitable while the Agreement has operated, I do not consider that this weighs against its termination and therefore consider it a neutral factor.

[329] Bargaining for an enterprise agreement may take many approaches. For some employers and employees there is contentment in rolling over that which is known and accepted as suitable for the future. There is no provision within the Act that prescribes the type of approach that may be taken in this respect. An approach may conservatively seek to make incremental change or conversely wide sweeping alterations to the terms and conditions in a replacement enterprise agreement. While the AWU advanced that bargaining for a new agreement had been protracted because Alcoa was attempting to make widespread reductions to the terms of the Agreement, I consider that summation does not give full effect to that which has been occurring.

[330] When bargaining, a party may remain firm in their resolve to protect terms and conditions that have been coveted for years. Mr Price’s evidence was to this effect. He said that the base fundamentals of the Agreement had been in place since the inception of the annualised wages agreement in the early 1990s, and it had stood Alcoa in good stead through the global financial crisis and a significant down turn in the alumina industry globally. 620 It is not insignificant that the terms of the Agreement have been secured through, as Mr Price acknowledges, years of negotiation for each of the consecutive agreements. It provides a solid rationale as to why the AWU and its members want to protect those provisions. However, it also lends to the contention that those same provisions may no longer fit the contemporary version of Alcoa, or the market in which it operates. According to Alcoa, those same provisions hamper the flexibility that Alcoa consider it requires to function productively and efficiently now and in the future. Yet, there has been an apparent unwillingness by the AWU, as borne out of the evidence, to work with Alcoa to address the key issues. The approach adopted by the AWU and its members not to depart from the ‘2005 Arrangements’ has been met by a number of countervailing factors.

[331] Those countervailing factors, or key issues, have been highlighted by reference to the relevant clauses of the Agreement and the examples provided by Alcoa’s three Managers on the adverse impact the clauses have had during Agreement’s operation. Adverse impacts included hindering Alcoa’s ability to conduct its operations in a manner that best promoted efficiency, productivity, and flexibility in the context of Alcoa’s prevailing operational needs.

[332] Alcoa sought a new enterprise agreement which better suited its operations, and, according to Alcoa, it had made this known at the commencement of bargaining. It looked to remove terms which:

•  imposed on Alcoa obligations which prevented it from conducting its operations in a manner which suited its operations and operational needs, for example minimum manning requirements (clause 24 and Appendix 11, clause 6);

•  imposed obligations on Alcoa which restricted or inhibited its ability to have work performed in the most efficient and cost effective manner for examples:

•  outsourcing and engaging contract and labour hire;

•  supplementary shifts (clause 11);

•  the ‘2005 Arrangements’ (clause 4.5);

•  restricted and prevented Alcoa from conducting its operations in a more efficient, productive and cost effective way, for example:

•  the dispute resolution procedure (clause 19);

•  the inability to terminate the employment of an employee where positions have been made redundant (clause 17(e)(vi);

•  restrictions on hours and rostering (clause 10); and

•  had the effect of restricting, or limiting, Alcoa’s ability to conduct its business in an operationally efficient, productive, and cost effective way, for example:

•  the decision to terminate employment, other than for serious misconduct (clause 18);

•  claims for demarcation of work (clause 4.1); and

•  sick leave and pay (extended paid sick leave ) (clause 13(4) and Appendix 2).

[333] The minimum manning provisions, as detailed earlier in the decision prescribe manning levels for particular parts of Alcoa’s operations notwithstanding that for parts of the operations, such as bauxite mining generally, manning levels fluctuate dependent on matters such as haul distance, bauxite demand, quality of the bauxite required, neighbour considerations, topography, and levels of productivity. 621 Any decision to change workforce numbers occurs against a backdrop where manning numbers were determined several years ago, and thereafter were enshrined within the Agreement. A change to a workforce labour plan that falls foul of the exemption in the minimum manning provisions may result in a breach of the obligations under the Agreement. A drop in the number of employees contrary to the manning requirements could result in penalties, and where an increase in the number of employees is required for a period, provisions of the Agreement limit Alcoa’s ability to then reduce numbers through forced redundancies.

[334] These minimum manning requirements have, according to Alcoa and the evidence presented, resulted in Alcoa incurring costs, and given rise to delays in making, or have frustrated, operational changes. The Huntly dispute is one such example. Faced with financial pressure due to a 40% drop in the alumina price, Alcoa responded by looking to reduce the haul distance between the pit and crushers, which would result in an associated reduction in labour requirements to 270 full-time equivalent haul truck drivers for 2016.

[335] The minimum manning requirements at that time were to be increased from 270 to 292 under the Agreement. For the period of October 2015 until December 2016 the matter was contentious, and by September 2016 a dispute was lodged with the Commission. Mr Smith gave evidence that during the period Alcoa incurred an additional spend of $2.61 million on wages that otherwise would not have been necessary if Alcoa had been permitted to carry the number of employees it required.

[336] With respect to manning numbers, Mr Smith gave evidence that the Agreement precluded Alcoa from:

(a) adjusting manning to meet changing operational circumstances as well as to meet production targets as dictated by the market;

(b) taking advantage of technological advancements including those justifying personnel reduction;

(c) obtaining benefits from outsourcing or insourcing specialist functions, which inevitably impact manning levels;

(d) reviewing the mix and balance of labour in operational departments and acting on the same; and

(e) responding efficiently and in a timely manner to redesign a mine plan driven by market conditions, and respond to any other prevailing conditions which inevitably impact mining numbers. 622

[337] Mr Gleeson’s view was that whether the minimum manning requirements apply beyond 2016 remains contentious, and the provision had ultimately resulted in Alcoa holding more employees than required because of the incorrect prediction of numbers within the Agreement. 623 Mr Price gave evidence that since 2016 the AWU had not disputed manning requirements;624 but nevertheless the obligation remained in the Agreement, ambiguous or not. Until such time as the Concessions were made, and on that point I have previously addressed the problematic nature of the Concessions, there had been no movement by the AWU and its members regarding the minimum manning requirements.

[338] Notwithstanding the evidence of Alcoa regarding the necessity to change manning numbers, and to do so responsively, Mr Price’s view was that haul distances can vary, but not overnight and ‘these changes are planned well in advance. A mine site such as Huntly must plan years and years ahead’. However, Mr Price’s view runs contrary to the evidence before me, and it must be said that predicting manning numbers or the number of supp-shifts some four years prior seems fraught with difficulty.

[339] At paragraph 62 of Mr Smith’s witness statement, Mr Smith gave detailed evidence of the potential future opportunities to make operational changes. His evidence at that paragraph sets out a range of matters which require flexibility and planning for future operations. It was his view that in order to assess the best ways in which to undertake all, or any of the changes he had referred to, the removal of the AWU provisions, including but not limited to the various manning and other requirements, was required.

[340] Since December 2016, Alcoa submitted that it had not been able to achieve certainty about its planning, and the only way in which it could plan, was in the absence of the restraints (meaning the AWU provisions) that come about by way of termination.

[341] The inflexibilities or restraints, arising from the terms of the Agreement are not confined to the manning provision. The obligation to offer 5000 supp-shifts across Alcoa’s WA operations for the life of the Agreement and to offer such shifts contrary to merit, but in a manner that is fair and equitable is said to give rise to productivity, 625 and cost implications.626 The number of supp-shifts is, according to Mr Gleeson, an arbitrary figure not based on the needs of the respective operations.627 Labour force planning was said to be further hindered by the costs of labour hire utilisation that arose from labour hire wage rates under the Agreement. Alcoa required the ability to reduce and increase employee numbers to meet export demands.628 While labour hire was used as a tool to balance peaks and troughs, its use was curtailed because of the associated wage rates.629 Changes to hours or work, shift rosters and patterns also proved problematic, with Alcoa desiring the ability to move employees across shifts to ensure resources were balanced, or to provide a better performance outcome, without needing employee agreement to do so.630

[342] The AWU advanced, through examples, that at times there was flexibility regarding changes to working hours, rosters and shift patterns. However, based on the evidence before me, I am satisfied that Alcoa’s view regarding such inflexibilities is not impugned.

[343] The disciplinary procedure at clause 18 brought with it, its own unique problems whereby a challenge to a proposed course of disciplinary action could require the Commission to rule upon fairness and reasonableness with which Alcoa had, or intended, to implement the disciplinary action. This was not disputed by the AWU. Alcoa held the view that it should be free to act as it deemed appropriate in disciplinary matters with the AWU representing members. 631

[344] The extended sick leave provision was said to act as a disincentive to return to work with Mr Gleeson providing evidence of absenteeism within Alcoa (on an annual basis across the board approximately 74 hours out of every 80 hours that accrued from year-to-year was taken in paid sick leave), and on other issues that arose from the entitlement. 632

[345] Union structures and arrangements within Alcoa saw the full-time employment of AWU convenors, supported by deputy convenors, at Huntly and Willowdale. Clause 4.5 of the Agreement set out:

(a) the provision of support to the AWU’s site representatives at the same level as provided under a predecessor agreement which was in force from 2005; 633

(b) for the same approach to requests from the AWU for paid meetings and for Alcoa to cover travelling expenses associated with interstate meetings; 634

(c) for continuing arrangements for union convenors, as current at the time the Agreement was negotiated, including providing reasonable access to employees during bargaining for a replacement agreement. 635

[346] As a consequence of clause 4.5, Mr Price, the AWU Convenor at Huntly, whilst initially being employed with Alcoa as a mining operator in November 1986, does not perform the duties for which he was employed in that job classification. Similarly, at Willowdale the AWU Convenor, Mr King, who started with Alcoa in February 1992 as a mining operator, does not perform the duties for which he was employed in that job classification.

[347] In respect of the ‘2005 Arrangements’ concerning union structures and so forth in clause 4.5 of the Agreement, the termination of the Agreement may result in Alcoa not being required to pay five employees to fulfil the role of a full-time convenor at each of its three refineries and two mines, in circumstances where Alcoa does not regard payment to employees who do not perform production work to be justified.

[348] Alcoa thereafter may not be required to afford paid time for the approximately 166 delegates of AWU employees across its two mines and three refineries to attend various regular monthly and quarterly meetings and/or union training, in circumstances where Alcoa regarded such arrangements as excessive and impeding its efficiency and productivity by impeding the performance of normal work. Further, Alcoa may not be required to pay deputy convenors for all time off work in circumstances where they either cover for their convenors or undertake other union business.

[349] Alcoa may not be required to backfill (or offer supplementary shift work to cover), the absences of deputy convenors and delegates when they are engaged in union organised meetings or other business. Further, exposure to disputes over the precise ambit and reach of the ‘2005 Arrangements’ may be removed.

[350] Evidence was provided concerning the time imposition that was placed on Alcoa’s operations by convening AWU meetings during work time, at particular times, and in particular locations. There was dispute over the evidence regarding the amount of time allocated to the various forms of AWU meetings in this respect. 636 However, on the evidence before me, I am satisfied that Alcoa’s view that the union structures and site representative arrangements came at a cost and inconvenience to Alcoa, was one that was open to it.

[351] Mr Crawford correctly submitted that the AWU and its members have a workplace right to dispute matters under the Agreement and are protected against having adverse action taken against them for exercising a workplace right. Mr Crawford advanced that the Commission must approach an argument by Alcoa that disputation with the AWU justified the termination of the agreement with caution and that the Act stipulates that enterprise agreements and modern awards must contain a dispute resolution clause. 

[352] These words of caution are misplaced. Before me I discern no argument that disputation with the AWU per se is the reason for Alcoa advancing its Application to terminate the Agreement. The evidence shows that Alcoa’s focus has been on its operational imperative to secure future flexibility, and to increase productivity and thereafter efficiencies within the instrument that sets for it, its employees, and the AWU, the terms under which they will work, or operate, as the case may be. That is not to say that disputation between the parties has been unproblematic. While the Act cites its object of providing a ‘balanced framework for cooperative and productive workplace relations’ there is a legitimate question to be asked whether the Agreement, an instrument arising under the Act, fosters cooperative and productive workplace relations. In Alcoa’s view the dispute resolution procedure does not operate to do so, as shown by the 46 disputes that were notified in 2016 under the Agreement, with 16 resulting in proceedings before the Commission.

[353] Disputation has been referred to during the course of Alcoa’s evidence to show the steps taken, or concessions made to expedite issues that have been the subject of dispute, 637 the impact on the day to day operational decisions such as the allocation of supp-shifts,638 secondment of an employee,639 and the problematic nature of the status quo obligation which in effect stalls a change process therefore reducing responsiveness to operational demands.640 With regard to cl 19, Alcoa has outlined the problematic issues arising out of the content of that clause, which it submits are significantly broader and more restrictive than the model dispute resolution procedure in the Act.641 That clause covers ‘all disputes’, which necessarily extends to disputes not only about the application and interpretation of the Agreement, the NES, but any other dispute.642 The extension to ‘other dispute’ has given rise to disputes where two Convenors have declined to comply with Alcoa’s uniform policy due to a desire to wear AWU badged shirts, and a change in location of a convenor’s office.

[354] The consideration of ‘appropriateness’ involves not only the consideration of the views of the parties, but the reasons for those views. Alcoa’s rationale for its Application is premised on the Agreement containing provisions, and work practices, that are evidently inefficient and out of step with the needs of a flexible and productive enterprise.  I am satisfied that the views of Alcoa are not fanciful, fabricated, or embellished. The evidence has shown that there are sound reasons for the views held, including the events of 2015-16 when the business was confronted by a drop in the alumina price, and operational responsiveness was impeded by the limitations placed upon the business by the Agreement. The three Managers gave cogent accounts of the daily operational challenges the Agreement brings, supported with salient examples and, at times, quantitative data.

[355] Mr Crawford advanced that Alcoa had relied on bare assertions from the three Managers to identify restrictive clauses in the enterprise agreement and to advance that Alcoa could not operate effectively with them.  According to Mr Crawford there was no objective data that backed up what the Managers had to say. 643 In this respect, Mr Crawford directed me to the decision in Re Allen & O’Brien Pty Ltd,644 where the Deputy President in that decision reached the conclusion that he was not satisfied, based on the evidence presented, that the existence of the O’Brien Agreement was the cause of or a significant contributing factor to the diminishing profit results experienced by O’Brien. The AWU submitted that the case was quite similar to this Application. 

[356] Contrary to the position in Allen & O’Brien, the present case does not rely on bare assertions but as the evidence of Messrs Gleeson, Smith, and Fennessy establishes, on detailed explanations and examples of the restrictive and impairing nature of a variety of terms of the Agreement. Further, again as noted, Alcoa has relied upon objective operational evidence to demonstrate the inefficiencies and barriers to productivity under the present Agreement.

[357] The fact that a termination will lead to greater efficiency and productivity and therefore more profit, has been recognised by the Full Bench and the Federal Court in Aurizon, 645 and CEPU v Aurizon Operations Ltd.646 It was held by the Full Bench in Aurizon that a more efficient and productive outcome may be achieved through termination of an out of term enterprise agreement.  That proposition is not dependent upon the level of profit that that particular employer is, or is not making, at the particular time. Alcoa’s view that the Agreement contains provisions and work practices that are clearly inefficient and out of step with the needs of a flexible and productive enterprise, has not been displaced.

[358] Concerning the alteration of the bargaining position of the parties, although the consideration took place in light of s 226(a) of the Act, it remains relevant when considering whether it is ‘appropriate’ to terminate the Agreement. With regard to the bargaining position of the parties, the AWU placed reliance on the decision in Re Viterra Operations Pty Ltd (Viterra) to support its contention that the termination was being utilised to pressure the employees to accept what Alcoa had conveyed was it best and final offer. 647 The AWU pressed that this was precisely the type of situation alluded to by the Commissioner in Viterra.648 In Viterra, the Commissioner stated:

Importantly, and for reasons more fully outlined in 4.1 above, I do not consider that the present authorities of the Commission mandate the use of a s.225 termination application simply as a means to pressure employees to accept a previously rejected proposed agreement. That is, each of the cases discussed earlier dealt with circumstances where there were important matters arising from the considerations established under s.226(b) which supported the termination of the relevant enterprise agreement beyond the impact upon the bargaining dynamic and bargaining positions of the parties. In my view, in most cases, something more than simply applying additional leverage will be required to warrant the termination of an Enterprise Agreement during a bargaining process. As is also clear, each case must be determined in its own circumstances having regard to the relevant statutory considerations and there are no presumptions as to the outcome to be made by the Commission in approaching that task.

[359] There is little similarity between the circumstances under the present Application and those before the Commission in Viterra. The observation by the Commissioner that there be matters ‘beyond the impact upon the bargaining dynamic and bargaining positions of the parties’ is readily satisfied in this case. 649 Alcoa has outlined in detail the objective operational imperative for change relating to productivity.

[360] Mr Price expressed the termination of the Agreement would have a major impact in many ways. Mr Price said that the AWU EBA Negotiating Committee had made the Concessions in good faith, to progress bargaining in an effort to reach a reasonable agreement and the membership had made it clear it was not a one way street. 650 If the Agreement was terminated, then everything would be off the table, and the parties would be back to square one.651 As acknowledged, Mr Gleeson’s evidence was that the termination of the Agreement would ‘enhance’ the bargaining process.652

[361] However, as observed, I considered that Mr Price’s evidence, when questioned in cross examination about prospective bargaining, made it clear that if the Agreement was terminated, the AWU continued to be committed to bargaining in good faith. The Convenors, who are also bargaining representatives, have worked at Alcoa for an extended period. While I have found that bargaining has been protracted and an impasse reached, I am satisfied that the termination of the Agreement would not result in the erosion of cooperative and productive relations.

[362] The AWU and employees are known to have adopted a cooperative approach at times. In fact, Mr Price gave evidence that the AWU regularly works collaboratively and productively with Alcoa to improve its operations. 653 By way of example, Mr Price referred to an email from the Refinery Manager at Wagerup, who thanked employees for working ‘professionally and tirelessly’ during a power failure. According to Mr Price this type of effort from the employees continued despite the Application to terminate the Agreement.654

[363] The question of appropriateness requires an overall judgment based on all the relevant circumstances of the Application. I have considered those circumstances at length in arriving at a decision, and am satisfied that it is appropriate to terminate the Agreement, taking into account, and balancing all the circumstances including those set out in s 226(b)(i) and (ii).

11 Conclusion

[364] In having regard to the requirements of s 226 of the Act, the evidence before me and the submissions made on behalf of parties, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so.

[365] In light of the Commission's satisfaction in respect of s 226(a) and (b), the Agreement must be terminated.

[366] In accordance with s 227 of the Act, the termination will be prospective and take effect on and from 7 January 2019. An Order to this effect is issued concurrently with this decision. 655

DEPUTY PRESIDENT

Appearances:

Mr Dixon of counsel for the Applicant

Mr Crawford for the Respondent.

Hearing details:

Perth, 17 – 21 September 2018

<AE407184  PR703190 >

Annexure One

 1   AE407184.

 2   [2014] FWCA 1613.

 3   Ibid.

 4   Witness Statement of Matthew Craig Gleeson (Exhibit A6) (Gleeson’s Statement) [14].

 5   Gleeson’s Statement [11], [21].

 6   Ibid [11].

 7   Ibid [12].

 8   Ibid [13].

 9   Ibid [16].

 10   Ibid [19].

 11   Ibid [23].

 12   AE425800.

 13   AE428778.

 14   Gleeson’s Statement [39] – [40].

 15   [2017] FWCA 5456.

 16   Transcript PN1202-1208.

 17   Ibid PN1288.

 18   Ibid.

 19   Ibid.

 20   Ibid.

 21   Ibid.

 22   Gleeson’s Statement [46].

 23   Ibid.

 24   Ibid [47].

 25   Ibid [49].

 26   Ibid.

 27   Ibid [50].

 28   Ibid.

 29   Ibid [53].

 30   Ibid [54].

 31   Ibid [55].

 32   Ibid.

 33   Ibid [56].

 34   Ibid.

 35   Ibid [58].

 36   Witness Statement of Liam Smith (Exhibit A9) (Smith’s Statement) [34].

 37   Ibid [36].

 38   Witness Statement of Mr Stuart Allen (Exhibit R10) (Allen’s Statement) [13].

 39   Transcript PN1181.

 40   Smith’s Statement [37].

 41   Ibid [38].

 42   Ibid [40].

 43   Ibid [41].

 44   Ibid.

 45   Ibid [42].

 46   Ibid [43].

 47   Ibid.

 48   Ibid [44], Annexure LTS-1.

 49   Smith’s Statement [47].

 50   Ibid [50].

 51   Ibid [51].

 52   Ibid [52].

 53   Ibid [53].

 54   Ibid [55].

 55   Ibid [56].

 56   Ibid [57].

 57   Transcript PN1246-1247.

 58   Ibid PN1248-1249.

 59   Witness Statement of Mr Simon Price (Exhibit R7) (Price’s Statement) [69].

 60   Price’s Statement [69].

 61   Ibid [67].

 62   Witness Statement of Mr Chris King (Exhibit R9) (King’s Statement) [45].

 63   Ibid [45].

 64   Price’s Statement [57].

 65   Ibid.

 66   Smith’s Statement [61].

 67   King’s Statement [46].

 68   Smith’s Statement [80].

 69   Price’s Statement [59] – [60].

 70   Ibid [61].

 71   Witness Statement of Mr Justin Lawrence Fennessy 1 August 2018 (Exhibit A11) (Fennessy’s Statement) [27].

 72   Ibid.

 73   Ibid [32].

 74   Ibid.

 75   Ibid [33].

 76   Ibid [36].

 77   Ibid [37].

 78   Ibid [41].

 79   Ibid.

 80   Ibid.

 81   Ibid [44].

 82   Ibid [45].

 83   Ibid [49]; Transcript PN1493.

 84   Fennessy’s Statement [49].

 85   Transcript PN1493-1495.

 86   Fennessy’s Statement [52].

 87   Ibid [54].

 88   Ibid.

 89   Ibid.

 90   Ibid [55], Annexure JLF-9, JLF-10.

 91   Fennessy’s Statement [59], Annexure JLF-13.

 92   Fennesy’s Statement [60].

 93   Ibid [61].

 94   Ibid [62].

 95   Ibid [63].

 96   Ibid.

 97   Ibid [66].

 98   Transcript PN1501.

 99   Fennessy’s Statement [110].

 100   Ibid [111].

 101   Ibid.

 102   Ibid [112].

 103   Ibid [114].

 104   Ibid [117].

 105   Ibid.

 106   Ibid [116].

 107   Gleeson’s Statement [62].

 108   Ibid.

 109   Ibid [63].

 110   Ibid [64].

 111   Ibid.

 112   Ibid [65].

 113   Ibid.

 114   Ibid.

 115   Ibid [66].

 116   Ibid.

 117   Smith’s Statement [66].

 118   Ibid [69].

 119   Ibid.

 120   Ibid.

 121   Ibid [70].

 122   Ibid [71].

 123   Ibid.

 124   Ibid.

 125   Ibid [72].

 126   Ibid.

 127   Ibid [73].

 128   Ibid.

 129   Ibid [74].

 130   Ibid [75].

 131   Price’s Statement [72].

 132   Ibid.

 133   Ibid.

 134   Ibid [73].

 135   Ibid [74].

 136   Ibid [75].

 137   Ibid [77].

 138   Allen’s Statement [15].

 139   Gleeson’s Statement [74].

 140   Smith’s Statement [79].

 141   Gleeson’s Statement [73]; Transcript PN1145.

 142   Fennessy’s Statement [70].

 143   Ibid.

 144   Ibid.

 145   Gleeson’s Statement [75].

 146   Smith’s Statement [80].

 147   Ibid.

 148   Ibid [81].

 149   Ibid.

 150   Fennessy’s Statement [74].

 151   Ibid [73].

 152   Ibid [74].

 153   Ibid [75].

 154   Ibid [76].

 155   Ibid [77].

 156   Ibid.

 157   Ibid [78], Annexure JLF-14.

 158   Fennessy’s Statememt [78].

 159   Ibid [79].

 160   Allen’s Statement [18].

 161   Ibid.

 162   Gleeson’s Statement [78].

 163   Ibid [79].

 164   Ibid [80].

 165   Ibid.

 166   Ibid.

 167   Ibid [81].

 168   Ibid.

 169   Ibid.

 170   Ibid [82].

 171   Ibid.

 172   Allen’s Statement [20].

 173   Gleeson’s Statement [83].

 174   Smith’s Statement [86].

 175   Fennessy’s Statement [80].

 176   Gleeson’s Statement [86].

 177   Ibid.

 178   Ibid.

 179   Smith’s Statement [89].

 180   Ibid.

 181   Ibid.

 182   Ibid [90].

 183   Ibid.

 184   Ibid.

 185   Price’s Statement [91].

 186   Smith’s Statement [91].

 187   Ibid [91].

 188   King’s Statement[42].

 189   Ibid [43].

 190   Price’s Statement [80].

 191   Smith’s Statement [92].

 192   Ibid [93].

 193   Ibid [94].

 194   Ibid.

 195   Ibid [96].

 196   Price’s Statement [82].

 197   Gleeson’s Statement [86].

 198   Ibid [84].

 199   Ibid.

 200   Ibid.

 201   Ibid [85].

 202   Ibid.

 203   Smith’s Statement [97].

 204   Ibid [98].

 205   Ibid.

 206   Ibid.

 207   Ibid.

 208   Price’s Statement [84].

 209   Ibid [85].

 210   Smith’s Statement [99].

 211   Ibid.

 212   Ibid [100].

 213   Ibid.

 214   Ibid.

 215   Ibid.

 216   Ibid [101].

 217   Ibid.

 218   Ibid.

 219   Ibid [102].

 220   Ibid.

 221   Ibid [103].

 222   Ibid.

 223   Ibid [105].

 224   Ibid.

 225   Ibid.

 226   Ibid [108], Annexure LTS-9, Annexure LTS-10. .

 227   Smith’s Statement [109].

 228   Ibid [110].

 229   Ibid [111].

 230   Ibid [110] – [111].

 231   Ibid [110].

 232   Ibid [117].

 233   Ibid.

 234   King’s Statement [50].

 235   Ibid [51].

 236   Ibid.

 237   Ibid [52].

 238   Ibid.

 239   Ibid [53].

 240   Price’s Statement [91].

 241   Ibid [93].

 242   Smith’s Statement [118].

 243   Ibid [119].

 244   Ibid.

 245   Ibid.

 246   Ibid.

 247   Ibid [120].

 248   Ibid.

 249   Ibid [121].

 250   Ibid.

 251   Gleeson’s Statement [91].

 252   Ibid.

 253   Ibid [92].

 254   Ibid [92], [94].

 255   Ibid [93].

 256   Ibid [95].

 257   Ibid [96].

 258   Ibid.

 259   Ibid.

 260   Ibid.

 261   Ibid.

 262   Ibid.

 263   Smith’s Statement [124].

 264   Ibid.

 265   Ibid.

 266   Ibid [125].

 267   Ibid.

 268   Ibid [126].

 269   Ibid.

 270   Ibid [127].

 271   Ibid [128].

 272   Ibid.

 273   Ibid [129].

 274   Ibid [130].

 275   Ibid [131].

 276   Ibid.

 277   Ibid [134], Annexure LTS-16.

 278   Smith’s Statement [133].

 279   Ibid [134].

 280   Ibid.

 281   Ibid [135].

 282   Ibid [136].

 283   Ibid; Annexure LTS-17.

 284   Price’s Statement [87].

 285   Ibid.

 286   Ibid [87], [90].

 287   Ibid [94] – [95].

 288   Ibid [96].

 289   Smith’s Statement [138].

 290   Ibid.

 291   Ibid.

 292   Ibid [140].

 293   Ibid [141].

 294   Ibid [142].

 295   Ibid [143].

 296   Ibid [144].

 297   Ibid.

 298   Ibid.

 299   King’s Statement [55].

 300   Ibid.

 301   Ibid [56].

 302   Ibid.

 303   Ibid [57].

 304   Smith’s Statement [147].

 305   Ibid [148].

 306   Ibid [149].

 307   Ibid [153].

 308   Ibid.

 309   Ibid [152].

 310   Ibid [154].

 311   Ibid [155].

 312   Ibid [153].

 313   Ibid [156].

 314   Ibid [158].

 315   Ibid [159].

 316   Ibid [159], Annexure LTS-23.

 317   Smith’s Statement [160].

 318   Ibid [161].

 319   Ibid [162], Annexure LTS-26.

 320   Smith’s Statement [164], Annexure LTS-28; Alcoa of Australia Limited T/A Alcoa World Alumina Australia v The Australian Workers’ Union [2016] FWC 3582.

 321   Smith’s Statement [165].

 322   Ibid [168].

 323   Ibid [171], Annexure LTS-32; The Australian Workers’ Union v Alcoa of Australia Limited T/A Alcoa World Alumina Australia [2016] FWC 5672.

 324   Gleeson’s Statement [97].

 325   Smith’s Statement [172].

 326   King’s Statement [59].

 327   Ibid.

 328   Ibid.

 329   Smith’s Statement [173] – [174].

 330   Ibid [175].

 331   Ibid [177].

 332   Ibid.

 333   Ibid [178].

 334   Ibid.

 335   Ibid [180].

 336   Ibid [184].

 337   Price’s Statement [102].

 338   Ibid [106].

 339   Ibid [107].

 340   Ibid [108].

 341   Ibid [109].

 342   Ibid [113].

 343   Smith’s Statement [186].

 344   Ibid.

 345   Ibid [187].

 346   Ibid [186].

 347   Gleeson’s Statement [100].

 348   Ibid.

 349   Ibid.

 350   Ibid.

 351   Ibid [104].

 352   Ibid.

 353   Ibid [112].

 354   Ibid.

 355   Ibid [105].

 356   Ibid [106].

 357   [2017] FWC 5276; Gleeson’s Statement [108].

 358   Gleeson’s Statement [109].

 359   Ibid [110].

 360   Ibid [114].

 361   Ibid [115].

 362   Ibid [116].

 363   Ibid.

 364   Smith’s Statement [190].

 365   Ibid [191].

 366   Ibid.

 367   Ibid [191].

 368   Ibid [193].

 369   Ibid.

 370   Ibid [194].

 371   Ibid [195].

 372   Ibid [196].

 373   Ibid [197].

 374   Ibid [198].

 375   Ibid.

 376   Ibid [199].

 377   Ibid [201].

 378   King’s Statement [62].

 379   Ibid.

 380   Smith’s Statement [202].

 381   Ibid [214].

 382   Ibid [206] – [216].

 383   Ibid [217].

 384   Ibid.

 385   Ibid.

 386   Ibid.

 387   King’s Statement [63].

 388   Smith’s Statement [218(a)(i)(B)].

 389   King’s Statement [64].

 390   Smith’s Statement [218].

 391   Ibid.

 392   Ibid [221].

 393   King’s Statement [66].

 394   Ibid.

 395   Smith’s Statement [221].

 396   King’s Statement [65].

 397   Smith’s Statement [222].

 398   Ibid [224].

 399   Ibid [225].

 400   Ibid.

 401   Ibid [227].

 402   Ibid [230].

 403   Ibid.

 404   Ibid [231].

 405   Ibid [232].

 406   Ibid [233].

 407   Ibid [234].

 408   Ibid [235].

 409   Ibid [237].

 410   Ibid [238].

 411   Ibid [239].

 412   Ibid [240].

 413   Ibid [241].

 414   Ibid [243].

 415   King’s Statement [39].

 416   Allen’s Statement [45].

 417   Price’s Statement [46].

 418   Ibid [47].

 419   Gleeson’s Statement [127].

 420   Ibid [128].

 421   Ibid [142].

 422   Ibid.

 423   Ibid [129].

 424   Ibid [127].

 425   Ibid [132].

 426   Ibid.

 427   Ibid.

 428   Ibid [129].

 429   Ibid [133].

 430   Ibid.

 431   Ibid [133] – [134].

 432   Ibid [135].

 433   Ibid.

 434   Ibid [140].

 435   Ibid; Annexure MCG-3.

 436   Gleeson’s Statement [142].

 437   Ibid [47].

 438   Ibid [211].

 439   Ibid [212] – [217].

 440   Ibid [220].

 441   Ibid [223].

 442   Ibid.

 443   Ibid [224].

 444   Ibid [225].

 445   Ibid [226].

 446   Ibid [227].

 447   Ibid [228] – [230].

 448   Witness Statement of Matthew Gleeson in Reply (Exhibit A7) (Gleeson’s Reply Statement) [5]-[24].

 449   Alcoa’s Submissions [16].

 450   Transcript PN1989, PN2012; Gleeson’s Reply Statement, Annexure MCG1.

 451   Transcript PN2014.

 452   Ibid PN2024-2026.

 453   Ibid PN2027.

 454   Ibid PN2043.

 455   Ibid PN2044.

 456   Exhibit A3.

 457   Exhibit A5.

 458   Alcoa’s Opening Submissions [19]; Exhibit A3.

 459   Transcript PN2074.

 460   Ibid PN2075.

 461   Price’s Statement [as numbered].

 462   Transcript PN2110-2111.

 463   Ibid PN2138.

 464   Ibid PN2140.

 465   Ibid PN2142.

 466   Ibid PN2148-2153.

 467   Ibid PN2201.

 468   Ibid PN2202-2203, 2205.

 469   Ibid PN2231-2245.

 470   Allen’s Statement [9].

 471   Ibid [10].

 472   Alcoa of Australia Sustainability Highlights ‘Economic Performance’ (Exhibit R1) 16.

 473   Ibid.

 474   Ibid.

 475   Witness Statement of Nicholas Kamper 27 August 2018 (Exhibit R6), Appendix B ASIC Financials, 6.

 476   Ibid.

 477   Exhibit R1, 3.

 478   Outline of Final Submission for the Australian Workers’ Union [21].

 479   Transcript PN360.

 480   Ibid PN361-362.

 481   Ibid PN361-362.

 482   Ibid PN362.

 483   Ibid PN1010.

 484   Smith’s Statement [41]; Transcript PN1027.

 485   Transcript PN1025-1027; Exhibit R3 (Aluminium, Alumina and Bauxite Document).

 486   Transcript PN1025-1062.

 487   Ibid PN1026 – 1059.

 488   Ibid PN1060.

 489   Witness Statement of Nicholas Kamper (Exhibit R5) (Kamper’s Statement) [1].

 490   Ibid [2].

 491   Ibid.

 492   Transcript PN1671-1672.

 493   Ibid PN1650.

 494   Ibid PN1686.

 495   Ibid PN1693.

 496   Ibid PN1675-PN1699.

 497   Ibid PN1713.

 498   Ibid PN1713-1714.

 499   Ibid PN1711-1736.

 500   Ibid PN1713-1736.

 501   Kamper’s Statement, Appendix B.

 502   Ibid.

 503   Transcript PN1706.

 504   Ibid PN1707.

 505   Fair Work Act 2009 (Cth) s 228.

 506   Ibid ss 229 – 230.

 507   Ibid ss 234 – 235

 508   Ibid ss 236 – 237.

 509   Ibid ss 238 – 239.

 510   Ibid s 240.

 511   Re Aurizon Operations Limited (2015) 249 IR 55, [120] (‘Aurizon’).

 512   (2015) 249 IR 55, [125].

 513   Fair Work Act 2009 (Cth) ss 408 – 410.

 514   Ibid ss 408, 411.

 515   Ibid s 415.

 516   Workplace Relations Act 1996 (Cth) ss 435 – 448.

 517   Fair Work Act 2009 (Cth) s 228(2).

 518   Ibid s 186(5).

 519   Ibid s 54(1).

 520   Ibid s 54(2)(a).

 521   Ibid ss 54(2)(c), 58.

 522   Ibid s 417.

 523   Ibid ss 418 – 420.

 524   Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

 525   Alcoa’s Outline Submissions [21]

 526   Ibid [22(c)]; Fair Work Act 2009 (Cth) s 3(c).

 527   Alcoa’s Outline of Submissions [22(c)]; Fair Work Act 2009 (Cth) s 3(f).

 528   Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [43].

 529   Alcoa’s Outline of Submissions [22(c)].

 530   Ibid [22(c)].

 531   Ibid [22(c)].

 532   Gleeson’s Statement [238]; Gleeson’s Reply Statement [42].

 533   Alcoa’s Outline of Submissions [26].

 534   AMWU v The Griffin Coal Mining Company Pty Ltd [2016] FWCFB 4620, [46].

 535   Alcoa’s Outline of Submissions [26(a)].

 536   Gleeson’s Statement [239].

 537   Transcript PN540.

 538   Ibid PN1010-1012.

 539   Exhibit R1, 4; Exhibit R3 – Figure 11.1, 86.

 540   Exhibit R1, 16; Exhibit R6, Appendix B, 21.

 541   Transcript PN417 – 418.

 542   Exhibit A10, [16].

 543   Exhibit A9, [16]; Exhibit A9, [19]; Transcript PN1230-1236.

 544   Transcript PN1263, 1503.

 545   Ibid PN1492-1495.

 546   Ibid PN1500.

 547   Ibid PN837.

 548   Ibid PN1454.

 549   Exhibit A7, [65] – [69].

 550   Transcript PN482-498.

 551   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19].

 552   CFMEU v Peabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, 261 [17] – [18].

 553   Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re Boom Logistics Ltd [2016] FWCA 82, [64]; Re Allen & O’Brien Pty Ltd [2016] FWCA 1906, [11]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 [18], [30]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [67]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [308], [379]; Re SDA [2014] FWCA 4058, [10].

 554   Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].

 555   Re Aurizon Operations Limited (2015) 249 IR 55, [129]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [44]; Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312 [116], [117], [130], [132]; Re Boom Logistics Ltd [2016] FWCA 82, [64]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [18]; Re Tricare Residential Aged Care Facilities [2017] FWCA 162, [67], [76]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [76]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [304], [309]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [62]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd (2015) 233 FCR 301, [11]; Re SDA [2014] FWCA 4058, [9].

 556   Re Tahmoor Coal Pty Ltd (2010) 204 IR 243, [66]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [13]; CFMEU v Peabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR 255, [25]; Re Murdoch University [2017] FWCA 4472, [182].

 557   CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re Aurizon Operations Limited (2015) 249 IR 55, [149]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [123]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [26]; Re Murdoch University [2017] FWCA 4472, [305], [311].

 558   Re Aurizon Operations Limited (2015) 249 IR 55, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].

 559   Re Aurizon Operations Limited (2015) 249 IR 55, [140] – [141], [143], [149]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [305].

 560   CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [105].

 561   (2005) 139 IR 34.

 562   [2017] FWCA 226.

 563   Allen’s Statement [35].

 564   Price’s Statement [41].

 565   Exhibit R1, 16.

 566   Fair Work Act 2009 (Cth) s 3.

 567   Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

 568   Exhibit A4, cl 26.2, 26.3.

 569   Re Viterra Operations Pty Ltd [2018] FWC 1161, [55].

 570   Re Aurizon Operations Limited (2015) 249 IR 55, [140] – [141], [143], [149]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [17]; Re Murdoch University [2017] FWCA 4472, [305].

 571   Exhibit R1, 16; Exhibit R6, Appendix B, 21.

 572   Gleeson’s Statement [234].

 573   Transcript PN2160.

 574   Gleeson’s Statement [234].

 575   Ibid.

 576   Ibid [235].

 577   Ibid.

 578   Ibid [236].

 579   Allen’s Statement [40]; King’s Statement [36].

 580   Price’s Statement [40].

 581   King’s Statement [36].

 582   CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25].

 583   Ibid.

 584   Ibid.

 585   Transcript PN2148-2153.

 586   Ibid PN2155.

 587   Ibid PN2158.

 588   Ibid PN2126-2134.

 589   Ibid PN2200-2208, 2212-2245.

 590   Ibid PN2158.

 591   Ibid PN650.

 592   Exhibit R8.

 593   Transcript PN2127.

 594   Ibid PN2127-2129.

 595   CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [25]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [105].

 596   Re Aurizon Operations Limited (2015) 249 IR 55, [164].

 597   Transcript PN348, 360-362, 540-543, 1012-1013, 1242, 1249.

 598   Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176].

 599   Re Aurizon Operations Limited (2015) 249 IR 55, [167].

 600   ERA v LHMU [2010] FWA 2434, [15]; Re Allen & O’Brien Pty Ltd [2016] FWCA 1906, [22]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [78], [115]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [4], [35]; Re Murdoch University [2017] FWCA 4472, [396]; Re Pinarello Blues Pty Ltd as trustee for Judds Discretionary Trust t/as Yankalilla Hotel [2015] FWCA 7698, [98].

 601   Re Aurizon Operations Limited (2015) 249 IR 55, [126], [176]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [74], [104]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13], [14]; Re Viterra Operations Pty Ltd [2018] FWCA 1161, [55].

 602   Re Aurizon Operations Limited (2015) 249 IR 55, [142]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13].

 603   Re Aurizon Operations Limited (2015) 249 IR 55, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [69]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [73], [103]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [13]; Re Murdoch University [2017] FWCA 4472, [455]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].

 604   ERA v LHMU [2010] FWA 2434, [15]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [19].

 605   Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312, [173]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [142], [154], [161]; Re Queensland Nurses' Union of Employees [2017] FWCA 162, [63]; Re Remondis Australia Pty Ltd [2017] FWCA 254, [29], [55]; CFMEU v Peabody Energy Australia PCI Mine Management Pty Limited (2016) 260 IR 255, [2].

 606   AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265, [51], [66]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226.

 607   Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312, [156].

 608   King’s Statement [33].

 609   Ibid [34].

 610   Ibid.

 611   Price’s Statement [34].

 612   Ibid [35].

 613   Ibid .

 614   Ibid [37].

 615   Re Murdoch University [2017] FWCA 4472, [404] – [405].

 616   Re Aurizon Operations Limited (2015) 249 IR 55, [158] – [160].

 617   Transcript PN591-592.

 618   Transcript PN96.

 619   Re AGL Loy Yang Pty Ltd [2017] FWCA 226, [147].

 620   Price’s Statement [44].

 621   Smith’s Statement [34].

 622   Ibid [37].

 623   Gleeson’s Statement [53].

 624   Price’s Statement [57].

 625   Smith’s Statement [66] – [70].

 626   Gleeson’s Statement [75].

 627   Ibid [62].

 628   Smith’s Statement [81].

 629   Fennessy’s Statement [70].

 630   Gleeson’s Statement [85].

 631   Ibid [109].

 632   Ibid [115].

 633   Smith’s Statement [191]; Annexure LTS-37.

 634   Ibid.

 635   Smith’s Statement [191].

 636   King’s Statement [63], [65] – [66]; Smith’s Statement [202] – [223].

 637   Smith’s Statement [111].

 638   Ibid [173] – [185].

 639   Ibid [138] – [146].

 640   Ibid [136].

 641   Gleeson’s Statement [19].

 642   Smith’s Statement [122].

 643   Transcript PN2586.

 644   [2016] FWCA 1906 (‘Allen & O’Brien’).

 645   (2015) 249 IR 55.

 646   (2015) 233 FCR 301.

 647   Re Viterra Operations Pty Ltd [2018] FWCA 1161, [74].

 648   Ibid.

 649   Re Viterra Operations Pty Ltd [2018] FWCA 1161, [74].

 650   Price’s Statement [39].

 651   Ibid.

 652   Gleeson’s Statement [234] – [239].

 653   Price’s Statement [46].

 654   Ibid [47].

 655   PR703444.

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