Alcoa of Australia Limited [2019] FWC 3103

1 Fair Work Act 2009 s.225—Enterprise agreement Alcoa of Australia Limited (AG2018/919) Aluminium industry DEPUTY PRESIDENT BEAUMONT PERTH, 7 MAY 2019 Application for termination of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014. [1] On 2 May 2019, I issued an Order setting out directions for the filing and serving of materials regarding the re-determination of matter AG2018/919. [2] Accompanying the Order was an email from my Chambers dated 2 May 2019, which set out that pursuant to s 601(1)(a) of the Fair Work Act 2009 (Cth) (the Act), the Commission was not obliged to reduce to writing a decision under Part 5-1, and that the decision, and reasons for decision of the aforementioned Order, would be traversed at the hearing set down for 26 and 27 June 2019. On that same date, in response to the email, the Australian Workers’ Union (AWU) respectfully requested the urgent provision of written reasons. [3] Having received the AWU’s request, I informed the parties that I would give reasons for issuing the Order, and the directions contained therein, orally on 13 May 2019. On 6 May 2019, the AWU lodged an appeal and filed a stay application in respect of my decision and the corresponding Order. In light of this latest development, I have decided to publish written reasons.1 This decision sets out the reasons for the decision and Order made. Background [4] On 12 March 2018, Alcoa of Australia Limited (Aloca) made an application pursuant to s 225 of the Act (the Termination Application) to terminate the Alcoa World Alumina Australia WA Operations AWU Agreement 2014 (the Agreement). I subsequently issued a decision (the Decision),2 and the corresponding order,3 terminating the Agreement (the Termination Order). The AWU lodged an appeal against the Decision, and on 16 April 1 Fair Work Act 2009 (Cth) s 601(2). 2 Re Alcoa of Australia Limited [2018] FWCA 7624. 3 PR703444. [2019] FWC 3103 DECISION -- 1 of 5 -- [2019] FWC 3103 2 2019, a Full Bench of the Commission issued a decision (the Appeal Decision),4 which upheld two of the AWU’s grounds of appeal, grounds six and seven, and permitted the agitation (on re-determination) of supplementary ground one. [5] In the Appeal Decision, the Full Bench ordered the quashing of the Decision and the Order, and remitted the Termination Application to me for re-determination. [6] On 17 April 2019, I conducted a directions hearing in relation to the re-determination of the Termination Application. I explained to the parties that I was minded to list the matter for a hearing of two days in which ‘the discrete matters concerning grounds of appeal six and seven would be dealt with in addition to the supplementary ground of appeal’.5 That proposition proved contentious. [7] Counsel for the AWU submitted that the entire Decision was quashed as was the corresponding Termination Order, and it followed that the Termination Application required ‘Alcoa to satisfy the Commission of the requisite matters it needs to achieve a termination’.6 [8] Counsel continued, that in such circumstances the appropriate course was for directions to be made which would first require Alcoa to put on the evidence it sought to rely upon in support of its Termination Application, in addition to its submissions, and thereafter, the AWU would be afforded the opportunity to put on the evidence that it sought to lead in opposition to the Termination Application.7 The AWU submitted that such evidence and submissions should not be confined to issues ventilated in the appeal by appeal grounds six and seven and in supplementary appeal ground 1.8 [9] Counsel for Alcoa, however, submitted that the matter should not simply proceed on the basis of an assertion that all matters were open to be challenged. [10] Having considered the submissions of the parties, I advised them that I would send a copy of the proposed directions to both. The AWU would be afforded the opportunity to reduce into writing its objections, and Alcoa would be invited to respond. [11] On 17 April 2019, my Chambers sent a draft Order to the parties setting out the directions, and in addition, issued directions for the filing of written submissions concerning the draft Order. The submissions of the parties follow. The AWU’s objections to the draft order [12] The AWU gave four reasons why the draft Order should not be issued in the terms proposed. 4 Australian Workers’ Union v Alcoa of Australia Limited [2019] FWCFB 2427. 5 Transcript PN [13]. 6 Ibid PN [16]. 7 Ibid PN [17]. 8 Ibid. -- 2 of 5 -- [2019] FWC 3103 3 [13] First, it submitted that the approach would be contrary to the Appeal Decision and the corresponding Termination Order. The Full Bench ordered that the Termination Application be ‘re-determined’. After concluding that my finding that the termination of the Agreement was not contrary to the public interest and that it was appropriate to do so was infected with error, the Full Bench quashed the Decision and the Termination Order. Counsel for the AWU submitted that the Full Bench had not directed that only appeal grounds six and seven and in supplementary appeal ground 1were to be considered in the re-determination of the matter. [14] Second, the Commission only has jurisdiction to terminate an enterprise agreement under s 226 if it has reached the requisite state of satisfaction in relation to the matters in ss 226(a) and (b). In the Decision, the Commission purportedly reached the requisite state of satisfaction in those subsections, but on appeal the Full Bench quashed the Decision as the conclusion that the test in s 226 had been met was made in error. Counsel submitted that it was made clear in the Appeal Decision at [65] that the conclusion that the test in s 226 had been met was infected by error, and it was that conclusion that requires redetermination. Therefore, the Commission must consider afresh the matters in s 266(a) and (b), and cannot rely on findings that were made in the Decision. [15] It was advanced that unless the Commission afforded the parties opportunity to, in effect, put on new evidence (which would necessarily include evidence as to the developments that had occurred over the many months since the hearing), the Commission would not be able to reach the requisite state of satisfaction in s 226. [16] In its third reason, the AWU advanced that it would be denied procedural fairness if it was not given the opportunity to adduce evidence on the matters which went to ss 226(a) and (b); that is, where it was confined by the parameters in the draft Order. [17] Its fourth objection concerned the order in which materials were to be filed and served. The AWU contended that were it compelled to put on its evidence in opposition of the Termination Application before receiving and considering the material of Alcoa, it would be denied a fair opportunity to defend the Termination Application; and as such would be denied procedural fairness. Alcoa’s response to the AWU’s objections and the draft Order [18] Alcoa observed that the Full Bench ordered that there was to be a ‘re-determination’, not a ‘re-hearing’ or a ‘fresh hearing’. The Full Bench stated that it was unable to determine that the issues identified in appeal grounds six and seven made no difference to the consideration of factors in s 226, and decided to remit the Termination Application for ‘re- determination’.9 Further, the Full Bench stated that supplementary appeal ground one could be pursued during the re-determination.10 Alcoa submitted that it was against this background that the Full Bench contemplated that, on the re-determination, the Commission was to address a narrow set of issues (those identified in appeal grounds six and seven and in supplementary appeal ground 1), and not a full re-hearing of the Termination Application. 9 The Appeal Decision [2019] FWCFB 2427 [65]. 10 Ibid. -- 3 of 5 -- [2019] FWC 3103 4 [19] Alcoa submitted that the usual basis of conducting a re-determination was upon the issues raised, and the evidence led, at first instance.11 It was the case that a Full Bench would make an express order if it intended a party to be able to lead evidence on the re- determination on an issue not raised at first instance.12 [20] Alcoa’s argument was that the Full Bench had contemplated that: a) on the re-determination, the AWU could lead evidence on the three issues identified in appeal grounds six and seven and in supplementary appeal ground one; and b) consistent with the usual basis of conducting a re-determination, the evidentiary foundation for the re-determination was otherwise to be the evidence that was led by both parties at first instance (including the witness statements and documents tendered and the examination, cross examination and re-examination at the hearing at first instance). [21] Alcoa contended that the making of the draft Order was consistent with the re- determination contemplated by the Full Bench, and would not amount to the Commission misconceiving its functions on the re-determination, or making an order that impermissibly limited its function on the re-determination. While the Full Bench had not directed that the issues raised in the upheld grounds of appeal were to be considered on re-determination, it had proceeded on that basis. Further, the Full Bench proceeded on the usual basis for conducting a re-determination, and did not order or direct that the AWU was permitted to lead evidence on issues not agitated at first instance or in the appeal, or further evidence on issues agitated at first instance, but not agitated on appeal. [22] With regard to the factual findings made a first instance, contrary to the position of the AWU, Alcoa advanced that (subject to the agitation of issues identified in appeal grounds six and seven and in supplementary appeal ground one) the Commission could rely on factual findings made a first instance, particularly given that the Full Bench quashed, as a matter of law, the Termination Order, not the reasons for decision. They noted that the Full Bench did not criticise the factual findings made in the Decision (save and except as relevant to appeal grounds six and seven and in supplementary appeal ground one). Given the statutory requirements and statutory ability of the Commission,13 Alcoa said that the Commission may proceed by reference to its factual findings at first instance. Consideration [23] It is evident that before providing the parties with the draft Order for their consideration, I had contemplated the directions that should be issued given the matter had been remitted for re-determination. In this respect, I refer to my comments on transcript.14 [24] My reasons for arriving at the directions contained in the draft Order were simple. As observed by Counsel for Alcoa, the matter had been remitted for a ‘re-determination’, not a 11 See, eg, CFMEU v Sparta Mining Services Pty Limited [2016] FWCFB 7057 [25]-[26]. 12 Ibid [34]. 13 Fair Work Act 2009 (Cth) ss 577(b), 590(1). 14 Transcript PN [13]. -- 4 of 5 -- [2019] FWC 3103 5 ‘re-hearing’. There was no express order from the Full Bench allowing either party to be able to lead evidence on the re-determination on an issue not raised at first instance. I observed that the Full Bench had stated that the supplementary appeal ground one could be pursued during the re-determination,15 and therefore considered that evidence would be led regarding this ground, in addition to the issues in grounds six and seven. I considered that the Full Bench would make an express order if it intended a party to be able to lead other evidence.16 [25] Regarding my factual findings in the Decision, I had considered that they had not been disturbed, with the exception of course regarding the issues identified in appeal grounds six and seven and in supplementary appeal ground one. I considered that I could rely on factual findings made at first instance, particularly given that the Full Bench quashed, as a matter of law, the Termination Order, not the reasons for the Decision. As was observed by Alcoa, it did not appear to me that the Full Bench had criticised or impugned the factual findings on the appeal (with the exception noted). [26] However, in light of the objections raised by the AWU regarding the proposed directions, I decided to afford the parties the opportunity to file submissions regarding the draft Order, before arriving at a final decision concerning the programming content of the same. [27] Having considered the submissions of the parties I remained satisfied with the content of the draft Order with the exception that I concluded the Respondent would file its material first regarding supplementary appeal ground one. [28] Supplementary appeal ground one states that I had erred in concluding ‘there would be no adverse effect on the AWU by the termination’. The Full Bench expressed that I was required to consider whether it was appropriate to terminate the Agreement taking into account all of the circumstance including, relevantly, the circumstances of the AWU including the likely effect that termination will have on the AWU. The Full Bench stated that I could not be criticised for not divining from the materials a detrimental effect on the AWU which it neither identified, nor claimed. Similarly, I have concluded that Alcoa would be similarly placed were it compelled to put on evidence first regarding supplementary appeal ground one. Consequently, the direction concerning the filing of materials reflects this, with the AWU compelled to file its evidence first regarding that supplementary appeal ground. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <AE407184 PR708013 > 15 [2019] FWCFB 2427, [65]. 16 See, eg, CFMEU v Sparta Mining Services Pty Limited [2016] FWCFB 7057, [34]. -- 5 of 5 --