AGL Loy Yang Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FWC 3992

1 Fair Work Act 2009 s.739—Dispute resolution AGL Loy Yang Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (C2019/7382) DEPUTY PRESIDENT COLMAN MELBOURNE, 30 JULY 2020 Dispute arising under an enterprise agreement – dispute determined [1] AGL Loy Yang Pty Ltd (AGL) has made an application under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute resolution procedure in clause 27 of the AGL Loy Yang Enterprise Agreement 2017 (Agreement).1 The dispute concerns the company’s proposal to use a new tool to assess when ‘conveyer attendants’ will be allocated to shifts at the Latrobe Valley power station in Victoria. The proposal is opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which represents affected employees. [2] Clause 30.2 of the Agreement provides that the system for allocating rostered personnel to posts at the mine is set out in a policy document issued in May 2017, that this document may be changed by agreement, and that agreement will not be unreasonably withheld. The policy document states that, ‘where required’, mine operators will be allocated to posts in the order and in the numbers shown in the document. [3] The present matter is a sequel to an earlier dispute2 referred to the Commission under clause 27 of the Agreement by the CFMMEU in 2018. In that application, the union contended that certain changes that the company was then proposing to make to the allocation of rostered personnel to posts at the mine departed from the policy document. The company had sought to allocate four rather than six mine operators to what it terms the ‘shift support group’ (comprising the dredger support team, the conveyor attendants stacker team, and the conveyor attendant post, all of which are posts that are relevant to the present dispute). The union said that this constituted a change to the policy document, and that it had not agreed to the change. The company contended that there had been no change to the policy document, because the allocation of six employees was no longer ‘required’ by the company, and any 1 AE424736 2 C2018/1586 [2020] FWC 3992 [Note: An appeal pursuant to s.604 (C2020/6094) was lodged against this decision - refer to Full Bench decision dated 24 December 2020 [[2020] FWCFB 7060] for the result of the appeal.] DECISION -- 1 of 16 -- [2020] FWC 3992 2 change was therefore within the terms of the policy and did not require the agreement of the union and employees. [4] In determining that application, I concluded that the words ‘where required’ in the policy meant ‘not objectively needed’.3 I rejected the company’s contention that its assessment of its own requirements was determinative of when the allocation arrangements in the policy document were ‘required’, as that would give the process for changing the policy in clause 30.2 of the Agreement little work to do. [5] The company has now developed an allocation tool which is designed to ascertain when the allocation of conveyer attendants will be objectively needed, and hence ‘required’ for the purposes of the policy. The tool asks ten questions, all of which the company says relate to considerations that bear on whether conveyor attendants are objectively needed on shift. Conveyor attendants will not be allocated to shift only in the event that the answers to all ten questions tell in favour of this course. [6] The tool has not yet been implemented, because the union objects to its use, and the company is observing the status quo provision in clause 27 of the Agreement. The company recently conducted a recent ‘dry run’ of the tool, during which it applied the tool ‘on paper’ on 54 shifts but did not implement the allocation outcomes that the tool produced. Based on the dry run, the company expects that, if the tool is implemented, it will continue to allocate conveyor attendants to shifts nine times out of ten. [7] The company considers that, on those shifts when it does not allocate conveyor attendants, they will not be objectively needed, and that the company will be acting in accordance with the allocation policy and the Agreement. The company says therefore that it does not require the agreement of the union and employees to use its allocation tool and allocate in accordance with it. The union disagrees and contends that the company’s proposed use of the tool to justify the non-allocation of conveyor attendants to shifts constitutes an attempt to alter the allocation policy without its agreement, contrary to clause 30.2 of the Agreement. [8] It is clear that the Commission is authorised to arbitrate the dispute under clause 27 of the Agreement. The matter was listed for hearing before me on 22 July 2020. Mr Tim Murnane, AGL’s business performance manager and formerly its mine production manager, gave evidence for the company. Mr Ritchie Barber, a mine operator employed by AGL who is also the CFMMEU lodge president, gave evidence for the union. [9] There was some discussion at the hearing about the question that the Commission should answer in resolution of the dispute. Whilst various proposals were raised by the company, the parties ultimately agreed that the Commission could resolve the dispute by determining the question referred to in paragraph 9 of the company’s submissions, namely whether the allocation tool as referred to in the witness statement of Mr Murnane ‘applies the application policy in a lawful manner because, for the reasons explained in Mr Murnane’s statement, it arrives at a result which allocates mine operators in accordance with objective need.’ Terms of the Agreement and the policy 3 CFMMEU v AGL Loy Yang Pty Ltd [2018] FWC 4875 -- 2 of 16 -- [2020] FWC 3992 3 [10] The relevant terms of the Agreement and the allocation policy are well known to the parties and are set out in my earlier decision. For convenience I will restate the key terms. Clause 30 of the Agreement provides as follows: ‘30. WORK ARRANGEMENTS 30.1 Station Operations A new staffing system is being introduced for station operations. A draft document has been issued and will be finalised through consultation within three months of the commencement of this Agreement. The document may then be changed by agreement between Company management, the relevant Employees, and/or their union(s), and agreement will not be unreasonably withheld. Where agreement cannot be reached, the matter can be resolved through the dispute resolution procedure under this Agreement, taking into consideration factors including occupational health and safety, fatigue, access to breaks, skills, and operational needs. 30.2 Mine The current system for allocating rostered personnel to posts in the mine is set out in the policy document issued in May 2017. That document may be changed by agreement between Company management, the relevant Employees, and/or their union(s), and agreement will not be unreasonably withheld. Where agreement cannot be reached, the matter can be resolved through the dispute resolution procedure under this Agreement, taking into consideration factors including occupational health and safety, fatigue, access to breaks, skills, and operational needs.’ [11] It is not in dispute that the ‘policy document issued in May 2017’ referred to in the first sentence of subclause 30.2 of the Agreement is the document appended as attachment PW1 to the statement of Mr Peter Waanders made in the earlier proceedings, which is itself attached as RB1 to the witness statement of Mr Barber. The policy was issued on 30 May 2017, prior to the employee vote on the Agreement, which occurred from 15 to 19 June 2017.4 The document reads as follows: ‘30 May 2017 AGL Loy Yang allocation of rostered personnel to posts in the mine policy document In accordance with clause 30.2 of the AGL Loy Yang Enterprise Agreement 2017 (Agreement), the following policy document sets out the system for allocation of rostered personnel to posts in the mine as at the commencement of the Agreement. Where required, MOs will be allocated to posts in the order shown below: (a) Two MFs to the MF posts; (b) Two CDOs or, in the absence of a second CDO, one CDO and one MO to coal plant; 4 Witness statement of Peter Waanders, attachment PW12 -- 3 of 16 -- [2020] FWC 3992 4 (c) Two Level 8 MOs / CDOs to the DST; (d) Two Level 8 MOs / CDOs to the CAST; (e) MO / CDO to Control Centre post; (f) Three MOs / CDOs to the stacker stream; (g) MOs / CDOs to the dredger stream; (h) Two MOs / CDOs to the CA posts; (i) Two MOs / CDOs to the second stacker; (j) If spare MOs / CDOs are available, they will fill the remaining MO vacancies. If further spare MOs / CDOs are available, they may fill a remaining OFR vacancy.’ [12] The abbreviations employed above, and the work undertaken by employees who undertake these various roles, was addressed in my previous decision. I briefly recap. All employees are employed as mine operators (‘MOs’). Of particular relevance to the dispute are the following posts: ‘CA’, referred to at (h), which stands for conveyor attendant; ‘DST’, referred to in (c), which stands for ‘dredger support team’; and ‘CAST’, referred to in (d), which means ‘conveyor attendants stacker team’. The allocation tool [13] Mr Murnane gave evidence that, following my earlier decision, he understood that under the allocation policy, the company was required to allocate mine operators in the order and in the numbers indicated by the policy, where those allocations were objectively needed, and that if an allocation was not objectively needed, either on a particular shift or for a certain period of time, the allocation need not be made. He said that he then developed a methodology by which the company could ascertain whether a particular allocation was not objectively needed. [14] Mr Murnane said that the tool he has developed focuses on the two ‘conveyor attendant’ posts because in relation to other posts, it is generally obvious when they are not needed, namely when the plant or machinery to which they are attached is not in use.5 He said that this is not the case with the conveyor attendant post, and that the company considers that there are shifts where there is no objective need for a specific allocation to this post, based on operational or safety requirements. Mr Murnane said that the work of the conveyor attendant post requires qualifications of an entry level operator and that any operator is able to work in the post. He said that, in terms of skill levels, operators assigned to the DST required the greatest skill level, followed by the CAST, and then the CA post. [15] Mr Murnane said that the tool seeks to determine whether there will be sufficient capacity within the CAST and the DST on shift to cover the work that would ordinarily be done by CAs. He said that the principal duties in the CA post are to carry out routine inspections of the mine’s conveyor systems, during which operators complete a standard inspection checklist once per shift covering the key housekeeping and operational points to be assessed. Inspections typically take between two and three hours. The tasks of CAs include driving alongside the conveyor to inspect it, getting out their vehicles at times, and identifying or attending to faults, escalating faults where necessary to a fitter or electrician, and clearing soil spills under drive equipment. 5 For example, if the stacker is not in operational, no operators will be assigned to the CAST. -- 4 of 16 -- [2020] FWC 3992 5 [16] Mr Murnane said that it is already the case that operators assigned to the DST and the CAST perform CA work from time to time. He said that there is variability in the need for a separate allocation of CAs to a shift, and his tool is designed to identify the circumstances when they are objectively not required. Mr Murnane said that, in cases where operators are not assigned to CA posts, they will be allocated to useful work; they will not be sent home or otherwise lose their shift. It is however the case that, on shifts when there is no allocation of operators to the CA posts, there will be a reduction in overtime at the mine, because the ‘spare’ operators who are not allocated to CA posts will be able to do work that would otherwise need to be done by the allocation of personnel to overtime. Mr Murnane also said that, if CAs were not allocated to shift, and a contingency were to arise that required their presence, they could be deployed at short notice even after a shift had started. [17] The tool developed by Mr Murnane is attached as Appendix A to this decision. It comprises ten factors, which Mr Murnane referred to as ‘criteria’. They pertain to matters reflecting what Mr Murnane regards as the key variable environmental factors that have a bearing on whether there is an objective need to allocate CAs to a shift. They take particular account of matters that may increase the workload of operators allocated to the DST and the CAST, therefore potentially leaving less time for them to do CA work. Each of the ten criteria asks a question, the answer to which attracts a particular score, either ‘1’ (indicative of no need for the deployment of operators to the CA post) or ‘2’ (telling in favour of their deployment). If the total score is 11 or more, this will mean that there is as an objective need for the allocation of operators to the CA post to shift. If any one of the ten questions is answered with a ‘2’, the score will exceed 10 and operators will be allocated to the CA post on shift in the ordinary way. [18] The ten questions in the tool are set out below, together with some brief explanations from the evidence:  ‘1: Are there any Market Alert, TARP (Flood, Fire, Dust) or Special Risk Management tasks for the shift?’ ‘TARP’ means a ‘trigger action response plan’, which requires special responses to particular risks or concerns that, relevantly for CAs, relate to flood, fire or dust. On days when there is a TARP, a special risk management plan or a market alert, there will be an elevated risk of the company needing a ‘full complement’ of operators, including CAs, to deal with any emergency situations, and a score of ‘2’ will be recorded.  ‘2: What are the lowest predicted bunker stocks during the shift?’ Low bunker stocks increase the urgency with which faults must be rectified, meaning that DST and CAST operators may have less time to do CA work. If bunker stocks are predicted to fall below 50 kilotons (80 kilotons being the maximum capacity), there will be a score of two, and operators will be allocated to CA posts on shift.  ‘3: Number of major machines (dredgers and stackers) operating for the shift?’ The greater the number of major machines in operation, the more operating conveyors there will be, and the greater will be the amount of CA work on shift. If four or fewer machines are operating, the company believes DST and CAST operators would have capacity to deal with tasks otherwise allocated to CAs. But if five or six machines are operating, there will be a score of two, and operators will be allocated to the CA posts. -- 5 of 16 -- [2020] FWC 3992 6  ‘4: Number of dredgers operating in automatic mode for the shift?’ When in automatic mode, dredgers are staffed by only two operators, rather than three or four, meaning that if there is a fault with the dredger, that team may need assistance from the DST, and the latter may have less availability to attend to CA work. If more than two dredgers are in automatic mode, there is a score of 2.  ‘5: Is post maintenance test running of machines (RTS Testing) required on the shift?’ If so, DST has a reduced availability and there is a score of two.  ‘6: Number of permit isolations / restorations planned for the shift support group (SSG) for the shift?’ The company believes that up to five permits can typically be managed by the DST and CAST, but if more than five permits need to be issued in a shift, this would reduce their availability, warranting deployment of operators to CA posts.  ‘7: Is safety device testing (SDT) scheduled for the shift?’ Operators on the DST typically provide support to plant crews who perform safety device testing on dredgers and stackers, and when this occurs, they will have less capacity to attend to CA work, and there will be a score of two.  ‘8: Are resources available that are assigned to training?’ If operators have been assigned to training, they are readily redeployable to shift if needed, including to cover CA work. If there are no operators assigned to training, there will be a score of 2, and operators will be allocated to CA posts on shift.  ‘9: Are Conveyor Attendant / Stacker Team (CAST) operators scheduled to operate a stacker for part of the shift?’ If so, there is a score of ‘1’. But if CAST will operate a stacker for the entire shift, there may be additional pressure on the CAST crew, and there will be a score of ‘2’. Operators will be allocated to CA posts as usual.  ‘10: Is Dredger Support Team (DST) assistance required for major cleaning, major machine positioning / movements during the shift?’ If so, the DST will have less capacity to do CA work. There will be a score of ‘2’ and operators will be allocated to CA posts. [19] Mr Murnane said that the tool is a conservative one. The tenor of this evidence was that the tool errs on the side of allocating operators to CA posts. Mr Murnane said that he has sought to ensure that a score of one across all ten questions would only be obtained in limited circumstances, such that, if operators were not allocated to CA posts, the company would still have ample resources to deal with any contingencies that might arise. It only takes one question to be answered with a score of ‘2’ for conveyor attendants to be allocated to shift. Further, as the box at the bottom of the allocation tool document makes clear, if the tool says that CAs are not needed, the shift leader may override that result and allocate operators to CA posts. [20] In his evidence, Mr Murnane explained in some detail the steps he took to consult with stakeholders in developing the allocation tool, including a number of meetings that were held with the union and employees from August to November 2019. He said that at these meetings, the position of the CFMMEU representatives was that if any conveyor was running at the mine, two conveyor attendants would always be required on shift. On 27 November 2019, Mr -- 6 of 16 -- [2020] FWC 3992 7 Barber wrote to Mr Murnane and advised that it had been unanimously decided by the mine lodge membership to reject the tool, and that the union expected the company to observe the status quo provision in the Agreement until the dispute about the use of the tool was resolved. [21] Mr Murnane said that the company had undertaken ‘dry runs’ on some 54 shifts. This involved the company filling in the tool ahead of a given shift and, where the tool would have resulted in no allocation of operators to the CA post, the company would then look at what actually occurred on the shifts in question, relying on shift reports and fault logs. This process led to certain adjustments to the tool. Mr Murnane said that the company wanted to understand the point at which, if CAs were not allocated to shift, there was maximum ability to deal with any issues that might arise during the shift. He said that as a result, the criteria in the tool became more conservative than originally planned. Mr Murnane said that he believes the application of the tool would result in the continued allocation of operators to CA posts on shift nine times out of ten. [22] Mr Barber, who gave evidence for the union, has been employed by the company as a mine operator since 2013 and regularly rotates through all of the mine production and support operational roles, including the DST and the CAST. Mr Barber disagreed with Mr Murnane’s opinion that there are regularly shifts where CA posts are not objectively needed. He said that whenever the coal conveyors are operational, CAs will be required. He said that if the coal conveyors are not operational, CAs will not be required, but that this occurs very rarely. [23] Mr Barber gave evidence that, based on his experience, he could not think of any situation where it would be safe to operate the coal conveyors without operators doing the duties required in the CA posts, and that the DST and CAST posts would have to pick up the work of the CAs. Mr Barber said that he did not believe that this would be operationally possible or safe, and that it was not how he and other employees understood the Agreement would work when they voted to approve it. He said that the non-allocation of operators to the CA post would amount to a change to the posts referred to in the Agreement, and the ‘current system’ for allocation to posts is referred to in clause 30.2 of the Agreement and should be observed. [24] Mr Barber said that, while operators in different posts currently help one another on shift, the posts of DST, CAST and CA are separate and distinct. He referred to definitions and descriptions of duties associated with these posts in the 2012 Agreement and said that if the posts are to be changed, this must occur under clause 30.2 of the Agreement. He also said that any change to the posts would need to take into account the considerations in clause 30.2, including OHS, fatigue, skills and operational needs, and that the current tool did not do this. He said that DST and CAST operators could not do their own job and the job of a CA as well. Mr Barber prepared a ‘shift timeline’ document showing what operators in the DST, CAST and CA posts actually did on particular shifts on six days in February 2020. I note that Mr Murnane agreed that this document addressed the types of work that operators allocated to the CA post might complete on a busy shift, however he said that, on the shifts examined by Mr Barber, the company’s tool would have allocated operators to the CA post. Findings [25] I record a number of factual findings. First, I accept Mr Murnane’s evidence that the role of all relevant employees is that of mine operator (MO), and that they are employed by the company in this capacity. The posts to which an operator might be assigned are those in -- 7 of 16 -- [2020] FWC 3992 8 the allocation policy (DST, CAST, CA etc). This is also consistent with the terms of the policy, which states that ‘MOs will be allocated to posts’ in accordance with the arrangements in that document, ‘where required’. There is therefore a difference between a role, a post, and the work that an employee might be required to perform in their role when allocated to a given post. [26] Secondly, I find that there is no strict ‘demarcation’ between the posts. There is nothing to prevent a person in one post performing tasks that might ordinarily be associated with another. This is consistent with the evidence of Mr Barber that operators assigned to different posts currently help one another on shift, and that this has become a regular occurrence on shift. [27] Thirdly, I find that, as Mr Barber and Mr Murnane agreed, operators assigned to the DST and CAST presently perform the work required of a CA from time to time, and that, as Mr Murnane explained, this is likely to be of a duration of an hour or two. I note that clause 85.4.5 of the Loy Yang Power Enterprise Agreement 2012, which addressed the duties of the DST and CAST, stated that operators in these posts will provide assistance to one another, and to the CAs until they become available, which Mr Barber explained meant that the assistance was of a ‘short term’ nature. I find that operators assisting one another across posts therefore has some history. [28] Fourthly, I find that there is distinction between the company’s current proposal not to allocate operators to CA posts on some shifts in accordance with its allocation tool, and the concept, raised in the union’s submissions, of the creation of a new ‘hybrid’ post. The company’s proposal is that operators assigned to the DST and CAST would, on the occasions where CAs are not allocated to shift, perform conveyor attendant work. They would remain assigned to the DST or CAST post, but, because the shifts in question are expected to be less busy ones, they will perform CA work as well. [29] Fifthly, while I accept that Mr Barber genuinely holds a contrary view, I do not consider the evidence to establish that for safety or operational reasons operators must always be allocated to the CA post on shift when coal conveyors are operational. The work of a CA is plainly important. But it does not follow that there must always be a separate allocation of two CAs to all shifts at all times when conveyors are running. The policy itself does not say this. Item (h) says: ‘Two MOs / CDOs to the CA posts’; but, like all of the items (a) to (j), this is subject to the premise stated in the policy that this is ‘required’, meaning, as I explained in my previous decision, objectively required. [30] Sixthly, I accept Mr Murnane’s evidence that the tool is conservative in its settings and that, as the responsible manager, he is confident that the company’s operational and safety requirements can easily be met on shifts where, pursuant to the tool, no operators would be allocated to the CA post. I accept his evidence that he believes that the application of the tool will see operators allocated to the CA post ninety percent of the time. I also accept his evidence that, based on his review of the ‘dry run’, of those shifts on which the tool would not have allocated operators to CA posts, there were no cases where the actual operational conditions subsequently suggested that operators ought to have been allocated to the CA post and were in fact required. Submissions of the parties -- 8 of 16 -- [2020] FWC 3992 9 [31] The company submitted that its allocation tool was an appropriate mechanism to ascertain whether the allocation of operators to the CA post is ‘objectively needed’, for the purpose of the allocation policy, as it was interpreted in my earlier decision. It said that the ten questions identify the operational and environmental circumstances where, if operators are not allocated to the CA post, there would be sufficient capacity for employees assigned to the DST and CAST posts to undertake the tasks that would otherwise be carried out by the employees allocated to the CA post. It is only if all ten of those questions support the non- allocation of operators to the CA post that the allocation will not occur, and even then, there remains discretion for the shift supervisor to override any ‘no-allocation’ outcome produced by the tool. [32] The company submitted that the union had not identified any defect or inadequacy in the tool, or any reason why it would not produce an objective reading of whether the allocation of CAs to a shift is objectively needed. It said that the union simply contended that the use of the tool would amount to a unilateral change to the allocation policy, but that this position is not consistent with my previous decision. The company said that the Commission should conclude that the tool, as referred to in the statement of Mr Murnane, applies the allocation policy in a lawful manner, because, for the reasons explained in Mr Murnane's statement, it arrives at a result which allocates operators in accordance with objective need. It said that in all the circumstances referred to in Mr Murnane’s statement, a reasonable person would be satisfied that, if all ten criteria referred to in the tool supported the non-allocation of operators to the CA posts, those posts are not objectively needed on the relevant shift. [33] The CFMMEU contended that the company’s application asked the Commission to make an order in the nature of a declaration concerning the legitimacy of the allocation tool as it might be applied in future circumstances. It said that the company did not purport to apply the tool to any particular situation and there were no concrete facts before the Commission against which the application of the tool could be assessed. Therefore, contrary to the company’s submission, the union said that the tool could not be regarded as an application of the allocation policy. Such an application could only occur in a particular case, by reference to particular factual circumstances. The union said that the company effectively sought the Commission’s endorsement of an abstract tool that is not part of the allocation policy or the Agreement. [34] Secondly, the union submitted that, if endorsed by the Commission, the tool would introduce flexibilities into the allocation policy that do not currently exist, and that this would represent a change to the policy that is not in compliance with clause 30.2 of the Agreement. The union said that the tool refers to a range of new criteria which the parties have not agreed to and which are not adequately defined. In the latter regard, it said that the first question in the tool contained ambiguous expressions, namely ‘Special Risk Management tasks’, ‘Market Alerts’ and ‘TARP’. It said that the company is currently already operating on a TARP for the pandemic, and that it is not clear what may activate a relevant TARP in the future. The union said that if the company wanted to change the policy to incorporate the allocation tool, it may seek the union’s agreement to do that under clause 30.2 of the Agreement. However, the company had not sought to do so, and does not contend in these proceedings that the union had unreasonably withheld its agreement to a proposed change. The union said that the company’s application did not concern the correctness of an application of the policy, but would have the effect of varying the policy, and thereby the Agreement, by effectively incorporating the allocation tool in a manner that is not contemplated by the Agreement. -- 9 of 16 -- [2020] FWC 3992 10 [35] In connection with this argument, the CFMMEU contended that my earlier decision had addressed the possibility of operators not being allocated to posts if they were not objectively needed, but the decision had not countenanced or envisaged the possibility of the allocation system itself being altered otherwise than in accordance with the process in clause 30.2 of the Agreement. While there could be certain change within the policy where operators were not objectively needed, there could not be change to the structure itself, and that is what the company’s tool proposed: no allocations to the CA post unless the tool so determined. [36] The union submitted that there was an inconsistency between the company’s new allocation tool and the policy. Many of the questions in the tool concern the notional spare capacity of the mine operators allocated to the DST or CAST posts. But what is currently required of mine operators in those posts is what was required in the ‘current system for allocating personnel’ as it stood prior to the commencement of the Agreement. The assessment of the possible spare capacity of the mine operators in the DST and CAST posts itself assumes an operational role for those positions. The company recognised that the work currently performed by operators allocated to the CA post would continue to be required, even when the tool did not allocate operators to this post. What the company in effect proposed was that in some circumstances there would be new hybrid posts comprising or merging the DST and CA, or the CAST and CA posts, and that allocations would be made to these new posts. Such posts however are not found in the allocation policy. The union submitted that, if the company wants to establish hybrid posts, it must vary the policy by seeking the union’s agreement under clause 30.2 of the Agreement. [37] The CFMMEU further contended that there was insufficient evidence before the Commission for it to be satisfied that the tool is an appropriate mechanism to assess whether CAs are objectively required on shift. It said that the details of the ‘dry run’ are not in evidence, and there is no available evidence as to how the tool actually works in practice. It said that there was also no evidence that mine operators were able to undertake the hybrid posts that the company sought in effect to establish through the use of its allocation tool. [38] Finally, the union submitted that, because Mr Murnane acknowledged that the tool might be changed in the future in response to unforeseen or changing circumstances, it would be inappropriate for the Commission to make a determination that the use of the tool in the future will necessarily constitute a ‘lawful application’ of the policy. More generally, the union contended that, in light of the matters raised in Mr Barber’s witness statement, the Commission could not be satisfied that the new proposed system for allocations was appropriate and that the existing allocation to posts are not ‘objectively needed’. Consideration [39] In my view, the company’s allocation tool establishes a reasonable framework for ascertaining whether the allocation of operators to CA posts is ‘required’ on a particular shift for the purposes of the allocation policy. Mr Murnane has undertaken a wide-ranging and thorough consideration of the operational and environmental factors that might reasonably bear on the question of whether allocations to the CA post are objectively needed on a shift, and in particular the matters that affect the workload of operators on the DST and the CAST. It is only when all ten factors support a conclusion that operators need not be allocated to CA posts on shift that this will be the outcome, and even then, the shift leader has discretion to override a non-allocation outcome and deploy operators to the CA post. Further, if circumstances change and an allocation to a post becomes required mid-shift, the company -- 10 of 16 -- [2020] FWC 3992 11 will make those allocations. In this regard, question 8 of the tool only allows the non- allocation of CA posts if there are operators allocated to training and hence available to be redeployed. [40] The allocation tool and its implementation do not constitute a change to the policy. The company contended that the tool involved the application of the policy, rather than an interpretation of it. The union disagreed. In one sense, as the union said, the application of the policy occurs from day to day when operators are allocated to posts, whereas the introduction of an allocation tool involves the establishment of an abstraction rather than the actual allocation of employees to work. On the other hand, the tool could be described as an application of the policy in the sense that it is the product of the application of an objective operational analysis of a key concept in the policy, namely the concept of objective need (‘where required’). [41] Either way, I consider that the use of the tool is consistent with the policy as I interpreted it in my previous decision. The policy document sets out the crewing arrangements for the mine, subject to the premise that the allocations are ‘required’: it is only ‘where required’ that the allocations to the various posts must be made, in the order and numbers required by the policy. Plainly, the policy contemplates situations where allocations are not required, and where that is the case, there is no obligation for the relevant operators to be deployed. The non-deployment of operators in such a case is consistent with the policy. Any change here is not a change to the policy but a change to the working arrangements under the policy, made in accordance with the policy itself. [42] The company’s tool does not say that the policy no longer applies, or that a different order of allocation will apply, or that different posts will exist, or that different numbers of employees will be deployed. Instead, it addresses on a shift by shift basis the circumstances when, under the terms of the policy itself, allocation of operators to the CA post will not, objectively, be needed. These are expected to be rare circumstances. [43] I do not accept that the tool seeks to establish hybrid positions. The tool says nothing about new posts. It is true that the tool proceeds on the basis that, in cases where operators are not allocated to the CA post, the operators assigned to the DST or the CAST will cover the work otherwise undertaken by the CA on the shift. But that does not result in the creation of new hybrid positions. It is already the case that employees allocated to the DST and the CAST sometimes undertake work done by CAs. This has not resulted in the creation of hybrid posts. Nor will the use of the tool. If an operator on the DST or CAST can perform CA work for some hours without thereby creating a hybrid post, there is no reason why the occasional performance of such work for a whole shift in the future should give rise to such a hybrid post. There is no strict demarcation of work between posts. When the ten factors all point towards non-deployment of operators to the CA post, it will be because there is expected to be less work for operators allocated to the DST and the CAST, such that it is reasonable to expect them to attend to work associated with the CA post. In this regard, the tool is conservative, and considers matters that might affect the workload of operators assigned to the DST and the CAST. [44] The union’s position is that, if there is a conveyor running, there must always be operators allocated to the CA post on shift. But the policy does not say this. The policy could have linked the allocation of operators to posts with the operation of machinery. It was common ground that some posts will obviously not be required when certain machinery is not -- 11 of 16 -- [2020] FWC 3992 12 in operation. But instead of stating in their policy that the allocation system will apply where the relevant machine is in operation, the parties have predicated the application of the allocation arrangements in the policy on the words where required. [45] I do not accept the union’s argument that the company seeks an order or determination in the nature of a declaration. The company simply wishes to use its tool to assess whether the deployment of operators to CAs posts on shift is objectively needed. Even if the company were seeking an outcome in the nature of declaration, I certainly make no such determination. This decision is not to be understood as authorising in advance any and all decisions by the company not to allocate operators to the CA post in connection with the policy. If in a particular instance, or in circumstances of a particular kind, the union wishes to argue that, despite what the tool may say, the allocation of operators to CAs posts is objectively needed, it will be able to do so. [46] Mr Murnane gave evidence that the tool might change in the future however I do not consider that this is a reason why the Commission should find that it would be inappropriate to endorse the tool. If the tool is changed, it will no longer be the same tool that has been considered in this decision and it would fall outside the resolution of the present dispute. [47] The union contests the company’s implicit suggestion that mine operators allocated to the DST and the CAST posts have spare capacity. It said that the evidence did not establish that operators were able to undertake CA work while deployed on the DST or the CAST. However, it is not the company’s contention that there is a general surfeit of capacity. Rather, it says that in some cases only, around ten percent of the time, operators on the DST and CAST are able to cover the work of CAs. I consider this to be a reasonable position that is supported by the evidence. The union said that what is currently required of mine operators in the DST and CAST posts is that which was required in the ‘current system’ for allocating personnel, as it stood prior to the Agreement being entered into. But the policy does not limit what work may be done in a post, nor does the Agreement. [48] If it were proposed to confer a substantial volume of additional work on operators in the DST and CAST posts, this would weigh against a conclusion that the tool was reflective of objective need, however this is not the case. Further, the tool is designed to identify the circumstances when DST and CAST operators will be in the best position to attend to CA work on shift. If the union considers that the application of the tool, and the non-allocation of operators to the CA post, does in fact create an unreasonable workload for operators on the DST or CAST, it will be able to bring a dispute to the Commission under the Agreement on the basis that, in its view, operators are objectively required for this reason. [49] The union said that certain terms in the tool were ambiguous, namely ‘special risk management tasks’, ‘market alerts’, and ‘TARP’. However, these were addressed in the evidence of Mr Murnane. I do not consider them to be ambiguous. Exactly what any of these things might entail on a particular day will of course depend on the circumstances. But that does not speak to any defect in the tool or the wording of the relevant question. [50] The CFMMEU submitted that the allocation policy can only be actually applied in practice when allocations are made in particular factual circumstances. I agree. I reiterate that this decision does not sanction in advance any and all decisions not to allocate operators to the CA post that are made in accordance with the tool. Rather, the decision acknowledges that the tool provides a reasonable framework for assessing whether the deployment of operators to -- 12 of 16 -- [2020] FWC 3992 13 the CA post on shift is objectively needed. There may be disagreements about the application of the tool to the facts. There may be cases where CAs are said to be objectively needed when the tool says otherwise. However, in that regard, there would in my view need to be a persuasive rationale as to why the allocations were needed on that particular shift or shifts. [51] The union said that the tool refers to a range of new criteria which have not been agreed. However, the ten questions engage with matters that are relevant to the question of whether in a particular case the allocation of operators to the CA post is ‘required’ within the meaning of the allocation policy, that is, objectively needed. The union does not say that these matters are not relevant to that question. It does not contend that the tool is deficient because it ignores other relevant factors that bear on that question and that ought to be included in the tool. It does not propose an alternative reference point for ascertaining when the allocation of operators to the CA post on shift is objectively needed. Furthermore, the CFMMEU has been provided with a copy of the allocation tool completed during the ‘dry run period’ for each of the relevant days, but it has not led evidence to suggest that on any of the days on which the tool would have resulted in no allocation of operators to the CA post, such operators were in fact objectively needed. The union has not demonstrated any shortcoming in the tool. It says simply that operators must always be allocated to the CA post if conveyors are running at the mine. But the policy does not say this. [52] I do not agree that there is insufficient evidence for the Commission to be satisfied that the tool should be used to assess whether the allocation of operators to the CA posts is objectively required on shift. The evidence of Mr Murnane provides an adequate evidentiary basis. He has explained why he has identified the ten questions, the scoring system, the purpose of the questions and the overall rationale of the tool. Mr Murnane also gave evidence about the ‘dry run’ and said that on none of the occasions where operators would not have been allocated to the CA post did the company consider in hindsight that there ought to have been an allocation, based on what actually happened on shift. The details of the dry run are not in evidence, but Mr Murnane has given evidence about this conclusion, and I accept it. Even without a dry run, I would consider the evidence about the rationale for the tool and the manner in which it will be used to provide an adequate basis to conclude that the tool is a useful way to gauge whether there is an objective need for the allocation of operators to the CA post. There is of course no evidence of how the tool actually works, because the company has not been able to implement the tool, given that the union has invoked the status quo provision in clause 27 of the Agreement. [53] In his evidence, Mr Barber said that he was concerned that the tool could be manipulated to remove the CA post altogether, and that its introduction was the thin end of the wedge in this regard. However, in my opinion none of the evidence adduced in this matter suggests that this is the company’s intention. If the company does later seek to remove the CA post without the agreement of the CFMMEU and employees, the union will no doubt challenge this under the disputes procedure. [54] Mr Barber also said that the employees did not understand, when voting on the Agreement, that the work of the posts could change without their agreement. However, the terms of the Agreement are to be objectively interpreted, and subjective expectations are of limited relevance. [55] The union said that the tool appears to include things outside the allocation tool document, such as the guidelines, and the expectation that operators on DST and CAST will -- 13 of 16 -- [2020] FWC 3992 14 cover CA work on shifts when no operators are allocated to the CA post. The concern appears to be that the tool is in some way at large. But this is not the case. The tool is appended to this decision. The guidelines form part of the evidence, although the company confirmed at the hearing that they do not form part of the tool. And the proposed use of the tool is circumscribed by this decision. [56] The union submitted that my earlier decision correctly noted that, if the words ‘where required’ in the policy meant ‘where the company requires’, there would have been little point in establishing the mechanism for changing the policy found in clause 30.2 of the Agreement. The union said that, if the allocation tool is implemented, this will simply be a reflection of company discretion. I do not agree. The tool is the product of the company’s deliberations on the factors that bear objectively on whether the allocation of operators to the CA post are needed on shift. The company no longer says, as it did in the first matter, that its subjective view is that certain allocations are required and that this is determinative. It adopts an objective and conservative viewpoint as to the requirement for allocation of operators to the CA post. This is what the policy requires. [57] The CFMMEU said that the tool would change the structure of the policy, and that to do this, the process in clause 30.2 of the Agreement is to be used. But again, I do not consider that the tool alters the policy. It works within the policy. Conclusion [58] I consider that the allocation tool is a reasonable mechanism for assessing whether the allocation of operators to CA posts on shift is objectively needed. That does not mean that there cannot be situations where CAs might nevertheless be objectively needed, notwithstanding that the tool says that they are not. There may be cases where the union or employees contend that the tool has produced the wrong result. Further, if it is the case that the tool’s use results in no allocation of operators to CA posts more frequently than has been suggested in these proceedings, the union might contend that there is a basis to revisit the use of the tool. There may also be cases where the parties disagree about the application of the tool to the facts. The Commission may be called upon to determine such disputes. [59] The determination sought by the company from the Commission was that the allocation tool as referred to in the witness statement of Mr Murnane ‘applies the allocation policy in a lawful manner because, for the reasons explained in Mr Murnane’s statement, it arrives at a result which allocates mine operators in accordance with objective need.’ I have determined that the allocation tool does apply the allocation policy in a ‘lawful’ manner, in the sense that it is consistent with the policy’s stipulation that the allocation arrangements will apply ‘where required’, because in my opinion the tool establishes a reasonable framework for ascertaining whether the allocation of operators to the CA posts will objectively be needed, which is consistent with my earlier decision. [60] The qualification I make to this determination is that the allocation tool will need to be applied to actual shifts, and the ultimate question will always be whether allocations to the CA post on shift are objectively required. The allocation tool is not a categorical formula that produces an unimpeachable result. However, because I consider the tool to be a reasonable one for assessing the objective need to allocate operators to the CA post, a person contending before the Commission in a future dispute that such allocations are objectively needed on shift -- 14 of 16 -- [2020] FWC 3992 15 when the tool says otherwise would need to produce a persuasive rationale as to why this is the case. DEPUTY PRESIDENT Appearances: D Williams for AGL Loy Yang Pty Ltd A Kentish for the CFMMEU Hearing details: 2020 Melbourne 22 July Printed by authority of the Commonwealth Government Printer <PR721404> -- 15 of 16 -- 16 Appendix A -- 16 of 16 --