Fair Work Commission|2024-07-31

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging [2024] FWC 2012 (31 July 2024)

s.739 - Dispute resolution

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging

Application to deal with a dispute under an enterprise agreement.

[1] On 14 February 2024, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 16 of the Opal Fibre Packaging National Enterprise Agreement 2022[1] (the 2022 Agreement). The Respondent in the matter is Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging (Opal).

[2] The AMWU contends by its dispute notification that Opal has announced changes to its Alcohol and Other Drugs Policy (the AOD Policy) and implementation of same that will negatively impact employees. The changes that the AMWU has raised concerns about include movement from blanket site alcohol and drug testing to random site testing, changes to the policy relating to the treatment of non-negative test results for over the counter or prescription medication and removal of blood alcohol concentration (BAC) self-testing units at sites where they are present. The AMWU dispute the content of the policy and practice changes and also contend that Opal failed to properly consult in relation to the changes.

[3] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The 2022 Agreement contains such a term which is set out at clause 16 of the Agreement which relevantly provides as follows;

The dispute resolution clause will be used if there is a dispute in relation to all matters which pertain to the relationship between the parties and the Union/s covered by this Agreement. For the sake of clarity this may include any dispute arising in relation to the following:

(a) a dispute in relation to a matter under this Agreement;

(b) a dispute in relation to any workplace industrial policy, practice or procedure

(c) a dispute in relation to any amendment or termination, or proposed amendment or termination of this Agreement or workplace policy or procedure, or any bargaining or negotiating for, or making of, a new agreement or workplace policy or procedure;

(d) the Awards referred to at sub-clause 3(b) and any other incorporated instrument;

The following procedure for the avoidance or resolution of a dispute shall apply:

(a) At any stage during this dispute's process an employee is entitled to appoint a Union representative, including a Union delegate, or any other representative as requested by the employee, to act on their behalf.

(b) In the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor/manager.

(c) If such discussions do not resolve the dispute, discussions between the employee or employees concerned with the State Official or State Secretary or their nominated representative and more senior levels of management will take place.

(d) If the dispute cannot be resolved at a workplace level, the National Official or Assistant National Secretary or their nominated representative will have discussions with a more senior representative of the Company.

(e) If a dispute is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation.

(f) If FWC is unable to resolve the dispute by way of mediation and/or conciliation and where the matter in dispute remains unresolved, the parties will have the matter heard by the FWC by way of arbitration.

(g) The Company, the employee(s) and the Union agree to abide by any decisions or orders made by FWC, subject to exercising any right of appeal to a Full Bench.

[4] It was not contested that the questions to be determined by the Commission, which are set out below, are capable of constituting a dispute relating to 'matters which pertain to the relationship between the parties and the Unions' covered by the 2022 Agreement, as required by clause 16.1. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution procedures (the DRP) of the 2022 Agreement. Having regard to the information in the Form F10 applications filed by the AMWU and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration as provided by clause 16.2(f) of the 2022 Agreement.

[5] The matter was subject to conciliation before the Commission in conferences conducted with the parties on 5 & 22 March 2024 pursuant to clause 16.2(e) of the 2022 Agreement but was not resolved. The Unions subsequently requested the matter be programmed for arbitration pursuant to clause 16.2(f) of the 2022 Agreement.

[6] The matter was listed for hearing on 29 May 2024 in advance of which the parties filed material on which they intended to rely in accordance with directions issued. At the hearing, Ms K Presdee (Senior National Legal Officer) appeared for the AMWU and called the following persons to give evidence;

David Henry - Acting Assistant National Secretary of the AMWU
Margaret Hogan - National Industrial Officer of the AMWU

[7] Mr S Kelleher (Workplace Relations Practice Leader for the Ai Group) appeared on behalf of Opal along with Mr J Hyde (Opal Fibre Packaging In-house Legal Counsel) and the following witnesses were called;

Rod Beales - General Manager-Workplace Relations for Opal Commercial
David Tregoweth - General Manager-Health and Safety for Opal Commercial

[8] The following questions arise for determination by the Commission;

In respect of the sites covered by the Opal Fibre Packaging National Enterprise Agreement 2022 ("the Agreement"), was Opal prevented from implementing any or all of the following measures arising from the January 2024 amendments to its Alcohol and Other Drugs Policy, namely:

the removal of alcohol self-testing machines on sites;

permitting paid stand down of employees on prescription or over the counter medication following a non-negative result in a random drug test;

review of positive laboratory confirmation tests by an independent medical review officer ("MRO").

In respect of the sites covered by the Agreement was Opal prevented from:

re-introducing random alcohol and other drug testing after a hiatus since 2020; and/or

using a sample selection methodology for random testing at a site, rather than the testing of all workers at a site selected at random; and/or

discontinuing the previous practice of seeking assessment by an MRO of a non-negative random drug test result (prior to the confirmatory drug test result) in circumstances where the employee provided a declaration that they are taking prescription or over the counter medication.

3. If the Commission answers "Yes" to any or all of questions 1.a-c or 2a-c, what steps does the Commission recommend Opal adopt to address any matters that the Commission determined prevented Opal from implementing the relevant changes?

[9] On 1 May 2020, an asset sale arrangement (the Sale) was completed between Opal and an unrelated entity, the Orora Group that brought a number of assets into the newly created Opal Group together with the existing assets of Paper Australia Pty Ltd. Ten of the Orora Groups' fibre packaging sites came across to Opal, those sites being; Knoxfield (Vic), Scoresby (Vic), Scoresby Pre-print (Vic), Brooklyn (Vic), Revesby (NSW), Rocklea (Qld), Bohle/Townsville (Qld), Athol Park (SA), Bibra Lake/Spearwood (WA), and Launceston (Tas)[2].

[10] As part of Sale, employees covered by the Orora Fibre Packaging National Enterprise Agreement 2019 (the 2019 Agreement) were offered employment by Opal and those who accepted employment offers commenced with Opal on 1 May 2020. The 2019 Agreement continued to apply (as a transferrable instrument) until its replacement by the 2022 Agreement on or around January 2023. The 2022 Agreement covers the ten fibre packaging sites listed above at which Opal undertakes activities associated with manufacturing cardboard box packaging[3].

[11] Prior to the Sale, Paper Australia had its own alcohol and drugs policy which continued to apply after the Sale and still applies at manufacturing and distribution sites that had previously been part of the Paper Australia network prior to the Sale. Those sites are now part of Opal Australian Paper[4]. Opal and the rest of the Opal Group in Australia adopted the Orora AOD Policy. While post-incident, reasonable suspicion and return to work testing continued to be undertaken by Opal, random testing under the AOD Policy was paused between 1 May 2020 and 13 February 2024[5], in part due to COVID-19 pandemic restrictions and did not resume until February 2023. By contrast, the Opal Australian Paper business uses a different testing provider to that which Orora had used (and which Opal now uses) and Opal Australian Paper did not pause testing during the COVID-19 pandemic and continued testing without interruption[6].

[12] Ms Hogan gave evidence on the origin of the AOD Policy prior to the Sale. She states that when Orora was considering the development of the AOD Policy it established a committee of occupational, health and safety representatives and delegates to consult on the development of the policy. She says she worked closely with this committee and although the AMWU suggested the committee consider other relevant issues, Orora did not accept that suggestion. She further states that the Committee met in person six times and canvassed issues such as detection window periods, the presence of substances and its relationship to impairment and other issues including the discipline model. Ms Hogan states there was much debate about testing during these meetings with the final position being that of saliva testing for drugs with random testing to be conducted on a site blanket basis once a site had been randomly selected[7].

[13] Ms Hogan also referred to Orora having separately established a National Occupational Health and Safety Committee (NHSC) which dealt with issues such as the AOD Policy and included management and employee representatives drawn from various sites. The NHSC continued after the Sale but was said by Ms Hogan to have been disbanded in late 2022 or early 2023[8].

[14] According to Mr Tregoweth who commenced as General Manager - Health and Safety with Opal Commercial in November 2022, a review of AOD Policy was conducted in May-June 2023 by Heidi D'Elton, Health & Wellbeing Manager. The review followed the earlier endorsement by Opal Commercial's executive management of the resumption of random testing at the sites covered by the AOD Policy[9]. Ms D'Elton's recommendations which are set out below were endorsed by Mr Tregoweth in or around July 2023[10]. Mr Tregoweth concedes that the proposed changes were not informed by a formal risk assessment as to his mind the changes were minor and administrative in nature. He opined that the changes related to testing processes and that there was no associated change in the risk presented by potential impairment of an individual at work having consumed alcohol or drugs[11].

[15] It is the announced changes to the AOD Policy that are disputed by the AMWU. These changes are set out below.

[16] The AOD Policy provides for random testing as follows;

Team Members are required to submit for testing as part of random testing programs.

The process to select the random sample of Team Members and/or sites/shifts for testing will be determined by the Testing Provider."

[17] While no change has been made to the AOD Policy, Opal has announced a change to the process of conducting random testing. Prior to the COVID-19 pandemic, Orora's practice was to conduct 'blanket' testing of all employees at a site selected by the Testing Provider. As earlier stated, Opal did not undertake drug testing between the date of the Sale in May 2020 and December 2023. While blanket testing may still occur at smaller sites from time to time it is intended by Opal that random drug and alcohol testing will be conducted on the basis of a random sample of employees selected from the list of Team Members on a particular site by the Testing Provider.

[18] Mr Tregoweth acknowledged that Orora's practice had been to test all employees on-site at the particular site selected for testing. While feasible for small sites, that approach brings with it significant operational disruption for larger sites and effectively means closure of the site and discontinuance of production for the day according to Mr Tregoweth. The proposal which was endorsed by him involves a reduction in the testing pool from 100% to 10% of employees on-site for those sites with a headcount above a certain threshold (a level of 50 was recommended). While the modified approach to the conduct of random testing delivers reduced operational impacts, the selection of a random sample of all employees on a site is in Mr Tregoweth's opinion regarded as the best practice approach to AOD testing at large manufacturing sites and was also recommended by Opal's testing provider, TDDA[12].

[19] The AOD Policy formerly included a section headed 'Self-exclusion from duties following self-testing for alcohol'. This element of the AOD Policy allowed for employees to use self-test facilities prior to commencing work at sites where self-testing facilities were installed. The change to the AOD Policy involves removal of the self-testing provisions which previously read as follows;

"Self-exclusion from duties following self-testing for alcohol

Opal will provide self-testing facilities for alcohol at the workplace wherever reasonably possible. A Team Member may elect to use available facilities to self-test prior to the commencement of their duties. If a Team Member returns a result of anything over 0.00% BAC, they must exclude themselves from duty on the basis that they are unfit for work.

If the test indicates a BAC of 0.02% or less, and the Team Member is prepared to disclose this to his/her People Leader, the Team Member may remain on site in a safe location away from the work area for up to two hours and commence duties if the Team Member can demonstrate the reading has returned to 0.00% BAC.

For Team Members that are Opal employees, any absence as a result of self-exclusion will be treated as personal (or if appropriate and agreed, annual) leave.

Where there is an unreasonable pattern of, or excessive reliance on, the self-exclusion opportunity, this may result in-disciplinary outcomes.

The opportunity for Team Members to self-test is only applicable prior to the commencement of duties. Any self-test that indicates a positive result for alcohol after a Team Member has commenced duties will be treated as a breach of this policy."

[20] Mr Tregoweth explained the rationale for this change as follows. He states that self-testing units were fitted at some sites, but he did not believe it was practical for Opal to service and maintain such units at every site across Australia. He also held the view that the provision of self-testing units may encourage some employees to attend for work while potentially affected by alcohol, rather than self-testing at home and/or taking personal leave if uncertain. He states he was also informed by Ms D'Elton that some employees had raised concerns about hygiene issues associated with use of shared breath testing units and how the disposable mouthpieces stored near the units could be stored and disposed of in a hygienic manner[13].

Non-negative drug screening test result - where Team Member has provided a Prescription

[21] The next area of policy change that has been announced is that relating to how employees who have obtained over the counter or prescription medication or have provided a Prescription Pharmaceutical Fitness for Work Assessment (PPFWA) and produce a non-negative drug screening result are managed in terms of stand down and the confirmatory test process. A copy of the policy with mark-ups showing the changes to the policy immediately follow below;

[22] Mr Tregoweth states that the AOD Policy prior to the announced change provided for the following treatment of non-negative screening test results in respect of over the counter or prescription medications or where a PPFWA had been produced. Employees who had disclosed to the testing provider that they were taking an over the counter or prescription medication or had provided a PPFWA and then produced a non-negative screening result were not necessarily stood down on pay pending a confirmatory test. They were permitted to continue to work pending the confirmatory test unless the testing was on the basis of post-incident or reasonable suspicion in which case they were stood down. This approach was contrasted with the approach taken to non-negative screening results for other drugs, where employees were immediately stood down pending the confirmatory test result[14].

[23] Mr Tregoweth explained that the AOD Policy as it previously was, was silent on the process of how and by whom an assessment was made as to whether the non-negative screening test result was for a 'corresponding substance' to that disclosed in any required PPFWA. While not dealt with in the AOD Policy as it then was, Mr Tregoweth states that he understood that subject to the employee providing consent the assessment was made by a medical review officer (MRO) who was available on an 'on-call' basis. Mr Tregoweth states that this approach was adopted by Orora as a practical measure to meet the equivalent of the policy requirement. A copy of the process was set out in an Orora document titled 'On-call Medical Review ("MRO") Process[15]. He further explained that having an MRO 'on-call' would not be practical in circumstances where the proposed approach to random testing involves a higher frequency of testing across sites with fewer employees per test event[16].

[24] Another aspect of the policy change that Mr Tregoweth drew attention to includes the former policy element that stipulated that the testing provider's assessment of consistency between a positive laboratory confirmatory test and the declared medical dosage/PPFWA was conclusive of whether the employee had breached the AOD Policy. Mr Tregoweth states he held two concerns over this aspect of the former policy. Firstly, the AOD Policy did not reflect the practice, that being the assessment of consistency between the declared medication/PPFWA, and confirmatory test result was undertaken by the MRO and not the testing provider. Secondly, Mr Tregoweth also believes that the testing provider does not have the medical expertise to provide a robust assessment of consistency between the declared medication/PPFWA and confirmatory test result, and indeed TDDA do not provide that service[17].

[25] Another change in the AOD Policy identified by Mr Tregoweth was that of the removal of an employee's ability to request a review by the MRO of the testing provider's assessment of consistency between the declared medication/PPFWA and confirmatory test result. This was according to Mr Tregoweth a logical consequence of the insertion into the AOD Policy of the role of the MRO to conduct the consistency assessment as part of the confirmatory test process[18].

[26] The announced change to the AOD Policy would, according to Mr Tregoweth, bring the approach to management of a non-negative screening test results for random or return to work testing for over the counter or prescription medication into line with reasonable suspicion and post-incident drug testing. That is, on production of a non-negative drug screening test result, an employee would be stood down pending receipt of an MRO assessment of the lab confirmatory results for consistency with the disclosed medication/PPFWA. Mr Tregoweth also expressed the view that there was no apparent safety rationale for permitting an employee to return to work pending laboratory confirmation results in circumstances of a non-negative drug screening test result for random or return-to-work drug testing[19].

[27] Mr Tregoweth was cross-examined on the nature of any risk assessment undertaken by Opal in relation to the changes to the AOD Policy changes in practice. He stated in response that discussions regarding a range of risks were held between himself and Ms D'Elton and with others within the organisation, including in relation to legal and commercial risks. He further stated that to his knowledge there were no specific discussions regarding risk with the workforce[20].

[28] On 23 October 2023, an email was sent by Ms D'Elton to all Opal employees notifying employees of the recommencement of random testing under the AOD Policy and also highlighting three key changes to the policy that were proposed. A copy of a presentation attached to the email was titled 'Update on random testing and consultation on proposed policy changes' (AOD Presentation) which set out the proposed changes[21]. The email made clear that certain Opal sites were excluded, those being OAP sites at Maryvale, Preston, Bassendean and Carole Park.

[29] Mr Tregoweth states that between 23 October and around 23 December 2023, consultation was then undertaken with employees at all sites covered by the AOD Policy, including sites not covered by the 2022 Agreement, the process of consultation led by Ms D'Elton. That consultation was supported by the AOD Presentation which was also circulated in hard copy form at sites from 23 October 2023. Employees were invited to provide feedback through various means including by; speaking with their People Leader, HR Business Partner or Safety Business Partner, by emailing their written feedback, or by requesting their appointed Health and Safety Representative (HSR) for their site or other representative to provide feedback on their behalf[22].

[30] Consultation steps taken were described by Mr Tregoweth to have included the following;

• Brooklyn (Vic) site - on 7 December 2023, the AOD Presentation was provided by a Ms Kikas at the HSE Committee Meeting for which minutes were recorded[23]. This was followed by two shift consultation sessions on 15 December 2023 from which feedback was received[24].

• Scoresby Box Plant (Vic) - on 4 December 2023, the AOD Presentation was presented and worked through by Jenny McClean (Head of Health and Safety - OFP - VIC/TAS) with the HSRs at the Safety Committee Meeting. The AOD Presentation was also presented at Communication Meetings with day, afternoon and night shifts on or around 8 December 2023. 120 copies of the presentation were also printed off and provided to employees[25].

• DAP Knoxfield (Vic) - on or around 4 December 2023, Ray Scicluna (Site Manager) presented the AOD Presentation at Communication Meetings[26].

• Revesby (NSW) - on 25 October 2023, Ahmad Ibrahim-Elgarhy (Site Manager) delivered the AOD Presentation via site Communications Meetings covering day, afternoon and night shifts. On 6 December 2023, the site HSE Committee also discussed the AOD Policy changes and 'relaunch'[27].

• Rocklea (Qld) - on 7 November 2023, site management met with union delegates to discuss concerns from the shopfloor regarding the proposed AOD Policy changes. A summary of the issues raised was provided by Mathew Whyte (HR Manager Qld Packaging & OSP)[28]. A further meeting with the AMWU at Rocklea was held on 16 November 2023[29].

• OFP Townsville (Qld) - on 13 November 2023, site management met with union delegates to discuss concerns from the shopfloor regarding proposed changes to the AOD Policy. The feedback received was summarised by Mr Whyte in an email that same day[30].

• Spearwood (WA) - on 24 October 2023, Sean Preston (Production Manager WA) delivered consultation sessions for day and afternoon shift in respect of the AOD Policy changes proposed[31].

• Launceston (Tas) - on 29 & 30 November 2023, Karen McCarrol (Health & Safety Business Partner) delivered the AOD Presentation to employees[32].

• Athol Park (SA) - between 23 October and 10 November 2023, the AOD Presentation was cascaded to all employees on site. On 25 & 26 October 2023 respectively the day and afternoon production supervisors delivered the AOD Presentation and sought feedback from production employees. The AOD Policy changes were also discussed at the HSE Committee Meeting on 8 November 2023[33].

[31] Mr Beales states that following distribution of the AOD Presentation, he sought to meet with the two relevant unions, those being the AMWU and Construction, Forestry, Mining and Energy Union (CFMEU). He further states that along with Ms D'Elton he met with the CFMEU on 26 October 2023 during which meeting he received feedback from the CFMEU[34]. When questioned on the feedback received from the CFMEU, Mr Beales stated that while he could not recall the specific feedback received, he was not concerned at any matters raised by the CFMEU[35]. He further confirmed that the three points captured in Ms D'Elton's feedback summary pack of CFMEU feedback was not discussed in the meeting of 26 October 2023 nor subsequently raised with him by the CFMEU[36].

[32] With respect to the AMWU, Mr Beales states that he arranged for a meeting via Teams with Ms Hogan of the AMWU for 26 October 2023. While the original purpose of the meeting was to hold 'Level 3' discussions on an unrelated dispute, he had planned to contact Ms Hogan on 23 October 2023 to ask if the AOD Policy could be added to the agenda for the meeting. On 23 October 2023, Ms Hogan pre-empted Mr Beales by emailing Ms D'Elton indicating that the AMWU were seeking an urgent meeting to discuss the AOD Policy consultation process[37]. After being forwarded Ms Hogan's email from Ms D'Elton, Mr Beales responded directly to Ms Hogan to the effect that he had been planning to have that conversation with Ms Hogan and Lorraine Casson (AMWU Assistant National Secretary) in the meeting already scheduled for 26 October 2023[38]. Ms Hogan states that it was the view of both the delegates and AMWU officials at this point that the proposed consultation process appeared tokenistic and unlikely to be genuine, particularly given her experience in the original process undertaken by Orora in developing the AOD Policy[39].

[33] At the on-line meeting on 26 October 2023, Mr Beales states that Ms Hogan and Ms Cassin were resistant to engaging in consultation over the AOD Policy. Ms Hogan states she did not recall exactly what was said at the meeting but did recall either Ms Cassin or herself raising concerns over random sample testing at sites being used to target AMWU delegates[40]. Mr Beales states that when he attempted to raise the AOD Policy Ms Hogan said words to the effect of "We're putting that in dispute". Mr Beales also states that when he attempted to share his screen to go through and discuss the AOD Presentation Ms Cassin said words to the effect of "Don't bother, we've already seen it, we had it sent to us by our delegates"[41]. Mr Beales further states that in the following weeks he was informed by various site leads and HR/Safety representatives that the AOD Policy was being 'put in dispute' at certain sites and dispute meetings were being arranged in accordance with the DRP in the 2022 Agreement[42].

[34] When cross-examined on the meeting on 26 October 2023, Ms Hogan agreed that she could not recall exactly what was said in the meeting although did recall the AMWU's preference for site blanket testing being discussed. When pressed on whether she or Ms Cassin had sought any additional information from Mr Beales or had put forward proposals at the meeting, Ms Hogan restated that she could not recall. Ms Hogan rejected the proposition put to her that the AMWU had never intended to engage with Mr Beales and explained that the AMWU at that point saw no option but to put the matter in dispute given what it regarded as a deficient consultation process. While acknowledging that the AMWU had placed the matter in dispute only three days after the consultation process had commenced on 23 October 2023, Ms Hogan stated that she had already formed the view that the consultation process was not going to be transparent, that view having been formed through her experience with Opal[43].

[35] Mr Beales was also cross-examined on the meeting of 26 October 2023. He confirmed that Ms Cassin and Ms Hogan had not asked for any additional information regarding proposed changes to the AOD Policy, had not sought to be provided with employee feedback on the policy changes, nor made any proposals about alternative consultation processes[44]. He also confirmed during cross-examination that in attending the 26 October 2023 meeting he was not provided with speaking notes or dot points in addition to the AOD Presentation. He did explain that he had seen the material in draft form as it been developed and also draft FAQs that had been prepared[45]. He further stated that, had Ms Cassin or Ms Hogan asked any questions during the meeting that he could not answer, he would have taken them on notice, sought answers and responded. Mr Beales also confirmed that beyond requesting a marked up copy of the AOD Policy on 9 January 2024, Ms Cassin and Ms Hogan did not address any questions to him via email or otherwise about the AOD Policy changes following the 26 October 2023 meeting[46].

[36] Mr Beales states he attended a 'Level 2' dispute meeting with Mick Bull (AMWU Organiser) on 20 December 2023. According to Mr Beales, Mr Bull was only interested in discussing concerns about the allegedly inadequate consultation process adopted by Opal. This view was reiterated in an email from Mr Bull to Mr Beales on 21 December 2023[47]. Correspondence to which Mr Beales was copied in on was subsequently exchanged between Ms Cassin and Brad Hinds (Opal Group General Manager) on 21 December 2023 and 9 January 2024.

[37] In her email of 21 December 2023 to Mr Hinds, Ms Cassin wrote as follows;

"Hi Brad, the matter of the dispute surrounding changes to the AOD policy is at the third tier level of disputation under Clause 16 of the enterprise agreement.

the manner of consultation set up by Opal which we say was and is inadequate;

the shift from blanket to a random model targeting 10% of the workforce at any given workplace, and the method of the provision of that 10% sample;

the compulsory provision of medical conditions and medications by employees regardless of impairment levels.

Can you please advise a date in the first part of January you are available to meet."[48]

[38] Mr Hinds responded to Ms Cassin's email on 9 January 2023 and advised that he would accommodate a Teams Meeting on any date suitable to Ms Cassin. He then went on to respond to the particular concerns raised by Ms Cassin as follows;

In relation to item 2, in response to the feedback from the AMWU regarding your concerns about the method of random selection, David Tregoweth (General Manager Safety for Opal) has reached out to you to seek to arrange a time for you and David to meet with our external AOD testing provider TDDA so that they can explain to you in detail the random selection method and answer your questions. May I suggest that you have the meeting with David and TDDA to see if it resolves your concerns on this aspect? Please let me know if you're open to this.

• In relation to item 3, there seems to be some confusion. Opal is not making any changes to the existing AOD policy (which came across from Orora) in relation to "compulsory provision of medical conditions and medications by employees". There never has been anything in the Policy that requires an employee to provide details of medical conditions or medications to Opal, and there is no proposal to change this - the Policy only requires employees to confidentially provide this information to the testing provider in the van at the time of testing (which is not passed on to Opal):"[49]

[39] Ms Hogan then replied on 9 January 2024 to Mr Hinds email of that same date in the following terms;

"Hi Brad, thanks for responding. Lorraine on leave but we have had a chat and she will make herself available to meet.

We can confirm that we are at Level 3 of the DRP with respect to the Qld, NSW, Tas and SA sites. We are aware of meetings that have occurred at the Vic and WA sites and we are seeking clarification on the levels covered off.

With respect to the point about random testing and Mr Tregoweth, we can confirm Mr Tregoweth reached out in respect of the testing methodology last year and we made our position clear; that the random element should be the site chosen and then blanket testing is applied at that site. Lorraine advises she has not subsequently been approached by Mr Tregoweth in respect of any further meetings.

The position on employees declaring medications at the point of testing only and to the tester is as per the original policy but this was not clear from the communications given to employees. To avoid further confusion can Opal please provide the original Orora policy with clear marked up changes on the alterations Opal is seeking.

Lorraine is available next week to meet if you can nominate a time."[50]

[40] Ms Hogan was questioned on the above-referred email exchange between Ms Cassin and Mr Hinds. While agreeing that Mr Tregoweth had responded to the matters raised in Ms Cassin's email of 21 December 2023, his response failed to address AMWU concerns in relation to random selection of employees for testing (and removal of blanket testing) and the immediate stand down of an employee taking medications if they produced a non-negative screening test result[51]. Ms Hogan further clarified that preserving blanket testing eliminates the AMWU's identified risk of Opal targeting some employees through a curated random selection process[52].

[41] At 10.03am on 23 January 2023, Mr Hinds responded to Ms Hogan's email of 9 January 2024 and in doing so included a tracked changes version of the AOD Policy document. Mr Hinds response was as follows;

Thankyou for your email, I will send Lorraine a Teams invite for next week.

We have records of the 2 levels of meeting occurring at the Old, NSW and SA sites but are not clear on Tas - can you please confirm the dates and attendees for the level 1 and level 2 meetings re Tas?

Apologies if there has been any confusion but David has attempted to contact Lorraine to offer the opportunity for a meeting with Opal, the AMWU and our testing provider TDDA, so that TDDA can take you through their random selection process and answer any questions you may have about that. Would you like me to ask David to see if TDDA is available next week for that meeting as well?

Orora policy
Rebranded Opal policy with admin changes from Orora policy - this is the policy currently in place
Proposed updated Opal policy with mark-up showing the proposed changes from the current policy, which were the subject of the recent consultation process

[42] Ms Hogan then replied to Mr Hinds at 10.52am that same day in the following terms;

However, your email this morning regarding "proposed changes" and meetings under the DRP is at odds with an email sent this morning at 9.55am by Heid D'Elton, Head of Health, Safety and Wellbeing for Opal.

In that email, Ms D'Elton advises that the policy has been updated with the proposed changes and takes effect immediately.

[43] Mr Beales was questioned on the timing of Mr Hind's response to Ms Hogan at 10.03am on 23 January 2023 in which Mr Tregoweth attached a marked up copy of the AOD Policy changes. He agreed that the response to Ms Hogan was sent out eight minutes immediately prior to the decision to proceed with the revised AOD Policy being communicated by email by Ms D'Elton to all Opal employees on 23 January 2024[55] to which was attached a copy of the revised AOD Policy[56].

[44] Mr Beales states that to his knowledge the AMWU never took up the opportunity offered by Opal for the AMWU to meet with TDDA to discuss concerns over the random selection methodology.[57] Ms Hogan stated during cross-examination that the AMWU did not need to speak with TDDA as they didn't hold a concern about the random selection methodology or integrity of the process used by TDDA. Rather, the concern held by the AMWU was over the integrity of the information provided to TDDA by Opal, that being the potential for a curated list of employees to be provided by Opal at sites selected for testing. This in the AMWU's view held the potential for targeting of particular employees[58].

[45] Mr Tregoweth states that on or about 15 December 2023, Ms D'Elton collated the feedback she had received through various feedback channels into a document titled 'AOD Consultation - Comments, Questions and Feedback' (Feedback Summary)[59]. Mr Tregoweth was taken to the Feedback Summary during cross-examination and was questioned on what action was taken in response to feedback received from the workforce, particularly in relation to questions asked. Mr Tregoweth explained that a FAQ document was progressively updated and circulated to site HR & WHS personnel but was not placed on a central intranet for employees to access. He also accepted that while he believed that feedback was provided to employees, he was unable to provide dates on when this occurred and that it was possible that information provided by Ms D'Elton to sites may not have been passed on to employees[60].

[46] Between mid-December 2023 and mid-late January 2024 Mr Tregoweth states he carefully considered the Feedback Summary and after consulting with the relevant General Managers formed the view that the changes to the random testing process and the AOD Policy should be implemented as proposed[61]. In reaching this conclusion Mr Tregoweth states he gave particular consideration to the following matters;

• The approach to removal of the BAC self-testing units from sites at which they were present was modified such that site managers were given discretion over the timing of decommissioning of the self-test units[62].

• In response to concerns raised by employees that random selection of employees for testing would allow 'targeting' of individuals, Mr Tregoweth was satisfied with further information sought from TDDA which revealed that it uses a 'randomising program' that sorts the list of all employees on site using the reliable 'Mersenne Twister algorithm' which has passed numerous independent tests on statistical randomness[63].

• Feedback from employees regarding selection of the contracted independent MRO prompted further consideration of the need to ensure that the MRO is able to demonstrate a comprehensive understanding of factors other than AOD consumption that may result in impairment at work. This would assist Opal manage employee well-being in an integrated way[64].

[47] The decision to proceed with the revised AOD Policy was communicated by email from Ms D'Elton to all Opal employees on 23 January 2024 to which was attached a copy of the revised AOD Policy[65]. Mr Tregoweth states that commencement of random testing was deferred until 13 February 2024 to allow sites time to conduct toolbox talks and/or site communications meetings to inform employees that the changes were coming into effect[66]. Random testing was then conducted at several sites from mid-February including three sites covered by the 2022 Agreement. It was subsequently agreed by Opal to not undertake random testing at sites covered by the 2022 Agreement until resolution or determination of the dispute before the Commission[67].

[48] Mr Henry gave evidence for the AMWU that he received feedback from delegates that at some sites, there were discussions at a site level safety committee but not at other sites. He states that he was also aware that delegates at all sites covered by the 2022 Agreement had placed the proposed changes to the policy in dispute[68]. He further states that he also learned from Ms Hogan that changes to the AOD Policy had been introduced by Opal while the dispute process was underway and that he was also asked to review the AOD Policy. When he had done so he was concerned at a number of elements, including removal of BAC self-testing units and the stand down of employees who were on prescribed medication or taking over the counter medication who returned a non-negative screening test[69]. Mr Henry attended a Level 3 dispute resolution meeting with Ms Hogan on 1 February 2024 and raised his concerns with Mr Hinds and Mr Beales who attended the meeting on behalf of Opal. Mr Henry then put those concerns in an email on 1 February 2024[70] to Mr Beales and Mr Hinds to which Mr Beales responded on 8 February[71]. Mr Henry also referred to further correspondence received from Opal on 20 March 2024[72] that was provided in response to a series of questions posed by the AMWU.

[49] In considering the AOD Policy changes, Mr Henry states that he examined the policy by reference to relevant OHS/WHS legislation. As Opal have sites across the country, he assessed the policy by reference to the model Workplace, Health and Safety Act (the Model WHS Act) as the obligations contained therein were matched by equivalent provisions in applicable state legislation[73].

[50] In noting that Opal had not conducted a formal risk assessment prior to implementing the changes, Mr Henry disagreed with Opal's view that removal of BAC self-testing units did not constitute a risk. Furthermore, the formal risk assessment of the stand down of workers who return a non-negative screening test result for over the counter or prescription medication was not undertaken until 15 March 2024. While the AMWU agrees that the risk of injury to an impaired worker in these circumstances is high and needs to be managed, the previous practice involved an immediate assessment of an employee with reference to the employee's PPFWA. The belated risk assessment did not appear to Mr Henry to have taken account of the past practice and furthermore did not appear to have involved consultation with employees, that failure being in conflict with Opal's own WHS Policy and Risk Assessment procedure[74].

[51] In respect of Opal's consultation with employees, Mr Henry made the following criticisms;

• The various WHS Act obligations require consultation with employees prior to there being change. Opal also has a policy for this process[75].

One of the requirements under the section 48 of the NSW WHS Act is that the views of employees must be taken into account by Opal before implementing the change. Mr Henry says Opal appears to have only 'considered' employees' views at best.

It is a further requirement that information about the change be shared with employees. There was no information about why the changes were being implemented, no discussion of the risk and it is unclear whether employees who had questions received any proper information.

• Feedback has been received from AMWU delegates that there is concern that random testing may be used by management to target particular workers.[76]

[52] Mr Henry also states that employers are prohibited from requiring employees to bear the costs of complying with policies affecting their safety, that obligation being breached by the AOD Policy requirement that employees must obtain a completed PPFWA from their doctor (at their personal cost potentially) if they are taking medication that contains a restricted substance. While the AMWU accepts this aspect was a feature of the AOD Policy prior to the most recent changes, Mr Henry argues that imposition of this obligation may give rise to costs being incurred by employees which may be non-compliant with the relevant WHS Acts[77].

[53] Mr Henry states that in June-August 2022, he participated in Opal's since disbanded National Health and Safety Committee's (NHSC) review of particular documents, including Opal's Risk Management Procedure & the Communication and Consultation Procedure. Mr Henry provided copies of the minutes of the June 2022 NHSC meeting which reveals that NHSC committee members were asked for feedback in relation to the two procedures under review. Mr Henry understands the two policies were existing policies 'inherited' from Orora that had been amended in March 2022 to reflect the change of ownership from Orora to Opal[78]. Mr Henry further states that as the NHSC was disbanded in late 2022, the review was never completed to his knowledge, and the Consultation Procedure retained its status as an 'agreed consultation process' for the purpose of section 47(2) of the model WHS legislation.

[54] Mr Beales states in his evidence that he had never seen the Consultation Procedure referred to in Mr Henry's evidence and was not aware that Opal and its employees had ever agreed that the Consultation Procedure is the procedure for the purpose of consultation on WHS matters. For his part Mr Tregoweth stated that he was not specifically aware of the Consultation Procedure[79].

[55] Mr Henry expressed the view that the Consultation Procedure requires consultation to occur when either making decisions about ways to minimise or eliminate risks and/or when proposing changes that might affect workers health and safety, both of which features were present in respect of the changes to the AOD Policy. Mr Henry further states that there is nothing in the AOD Presentation that suggests how or how many workers will be selected for random testing under the revised testing arrangements. Further, while the discretion given to site managers to determine the timing of removal of BAC self-testing units might indicate that employee feedback was considered, it does not mean there was a material change in the decision to remove the self-test units. Finally, there was nothing to indicate that Opal had assessed the risk of removal of the BAC self-testing units or the hygiene concerns for that matter[80].

[56] The AMWU agrees with Opal's characterisation of the AOD Policy as being a factor in meeting their obligation to provide a safe workplace under health and safety legislation. They contend however that Opal's conduct in relation to consultation, management of risk and the levying of employees in safety matters are deficiencies that render the changes to the AOD Policy (both in content and procedure) void. While not seeking a determination from the Commission under any particular WHS Legislation, they contend that compliance with the applicable legislation goes to the reasonableness of any direction issued by Opal in relation to the AOD Policy changes.

[57] The AMWU contend that the Model WHS Act includes a requirement to consult with workers in relation to matters affecting their safety in the workplace. The AMWU says that obligation is understood by Opal and is supported by Opal having its own procedure in place dealing with consultation, that being the Consultation Procedure. The AMWU contend that the Consultation Procedure was an 'agreed' policy and as such compliance with it is required, the failure to do so meaning that introduction of the changes is rendered void. Even if it were found by the Commission that the Consultation Procedure did not apply for the purpose of s 48 of the WHS Legislation there was an obligation on Opal to nonetheless consult in relation to the AOD Policy and practice changes.

[58] While Opal provided employees with an opportunity to provide input on the proposed change to the AOD Policy prior to its implementation, that opportunity did not equate to proper consultation according to the AMWU, both in respect of relevant WHS Legislation and under the Consultation Procedure. The standard to be met by an employer in relation to its consultation obligations is well established at law according to the AMWU and was traversed in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal[81] (Mt Arthur).

[59] The AMWU further submit that genuine consultation would generally take place where decision making is still at a formative stage, must be real and not perfunctory and the right of employees is not just to be heard, but there is also an entitlement to have their views taken into account before the decision is made[82]. According to the AMWU, the material provided to employees by Opal was merely a notification of the changes that were going to be made, there was no discussion as to why the changes were being made or how the policy would be amended to reflect those changes. That approach gave rise to questions from employees that were not properly answered, and which did not constitute employees providing a view for the purposes of proper consultation. The AMWU also contend that section 48 of the Model WHS Act requires that 'relevant information about the matter is shared with workers'. The requirement to provide 'relevant information' to employees is also found at clause 4 of the Consultation Procedure where it states that 'Relevant information about the HSE matter is shared with employee'. That obligation to provide relevant information was not met according to the AMWU.

[60] In relation to Opal meeting its consultation obligations, the AMWU make the following further points;

It recognises that consultation is not shared decision making and nor does it confer a right of veto.

While acknowledging that the views of employees were sought on the AOD Policy, it appears that this was the first review of that policy since Opal inherited it from Orora and in these circumstances the views of employees that had lived experience of the AOD Policy and its testing regime might have provided insights that Opal management did not have.

The views provided by employees were not informed by the provision to employees of 'relevant information'.

[61] In relation to the matter of risk, the AMWU also submit the following;

It is not contested that Opal is required to eliminate all risk as far as reasonably practical.

The genuineness of the consultation process is called into question by the fact that Opal did not conduct a formal risk assessment in relation to the changes prior to announcing its decision to implement the AOD Policy changes in January 2024.

There was no recognition in the belatedly completed risk assessment (in March 2024) of the change in policy regarding the automatic stand down of employees that produce a non-negative screening test result for over the counter or prescription medication.

While WHS Legislation recognises that elimination of risk may involve a cost, use of the term 'reasonably practical' allows for consideration of the cost of the measure in determining whether to introduce or retain a practice/policy, this being relevant in circumstances where the BAC self-test units had operated as a means of reducing the risk of an employee attending work while impaired by alcohol.

[62] The AMWU also submit that the requirement for employees on prescribed medication that may contain a restricted substance to provide a PPFWA completed by their treating physician goes further than assessment of whether an employee is taking particular medication as it requires dosage and extent of treatment. This may require additional visits to treating practitioners, may require longer consultations and may lead to an employee incurring actual or additional costs not covered by bulk billing. This is said by the AMWU to be contrary to s 273 of WHS Legislation.

[63] The AMWU submits in conclusion that employees were simply notified of the changes and the changes were then introduced three months later regardless of concerns put forward by employees. The AMWU urge that Questions 1 & 2 should both be answered 'yes' in circumstances where Opal's consultation process fell short of WHS Legislation requirements.

[64] Opal submits that the requirement that employees comply with policy and practice changes on recommencement of random AOD testing under the AOD Policy amounts to a lawful and reasonable direction in the sense contemplated by the Full Bench in Mt Arthur. It submits that the changes were lawful in the sense that they arise within the scope of the employment relationship and there is nothing unlawful, or illegal about AOD testing in the workplace for the purpose of managing the risk of impairment[83]. As to the question of reasonableness, that is a question of fact having regard to all the circumstances[84] and that the changes giving rise to the dispute in the present case have a logical and reasonable basis taking into account all of the circumstances.

[65] Opal does not concede that it was required to consult in accordance with s 49 of the Model WHS Act as it was not enlivened. That is because Opal argues that the changes subject of the dispute do not engage any of the health and safety matters set out at paragraphs (a)-(f) of s 49. Opal contends in the alternative that if the consultation obligations did apply, it met the requirements of ss 47 & 48 of the Model WHS Act.

[66] Opal further submits that it does not have an agreed consultation policy for the purposes of s 47(2) of the Model WHS Act and that the AMWU failed to advance evidence that would allow a finding to be made that the Consultation Procedure was an 'agreed policy'. Opal does however concede that it was a procedure 'inherited' from Orora, was the subject of some discussion in 2022 and was updated in March 2022 to reflect the transition from Orora to Opal however it (the procedure) has no status for the purpose of assessing Opal's compliance with its consultation obligations. Consequently, any non-compliance with the Consultation Procedure is not relevant for the purposes of determining whether Opal has met its consultation obligations.

[67] Opal seeks to distinguish the circumstances of the present case from those confronted in Mt Arthur where the Full Bench found that the employer in that case failed to consult with employees until after a definite decision had been made to introduce the Site Access Requirement that entering the site must be COVID-19 vaccinated. Opal further submits that in reaching its conclusion the Full Bench's determinative consideration was that the employer had failed to consult employees in accordance with ss 47 & 48 of the WHS Act.

[68] The circumstances in the present case are said by Opal to be materially different from those considered in Mt Arthur in two key respects. Firstly, Opal undertook a process of consultation between October 2023 and January 2024 and gave employees, HSRs, delegates and the AMWU an opportunity to meaningfully influence the final decision. Secondly, the changes subject of the present dispute involves minor changes to the established policy and practice, as opposed to an entirely novel direction by the employer in Mt Arthur to deal with an entirely novel risk.

[69] In assessing whether Opal has met its consultation requirements pursuant to ss 47 and 48 of the Model WHS Act, it submits the Commission should have regard to the following circumstances;

AOD testing is an established practice in the workplace.

The changes did not involve a material alteration in the risk the AOD Policy is designed to address.

The AOD Policy at all times contemplated random AOD testing.

Random selection of a subset of individuals to be tested at a site is a common and well established industry practice.

Stand down arrangements for non-negative drug test results, pending review of laboratory confirmation results, was already a feature of the AOD Policy in relation to post-incident and reasonable suspicion-based drug testing.

Paid stand down pending laboratory confirmatory test results involves minimal detriment to employees.

Removal of voluntary alcohol self-testing facilities involves minimal detriment to employees.

The requirement for disclosure of medication, including the PPFWA process were not changed.

Opal intends to undertake a further review of the AOD Policy, affording employees an opportunity to raise further matters beyond the scope of the changes proposed by Opal in October 2023.

[70] Opal contends that the evidence of Mr Beales and Mr Tregoweth reveals that Opal consulted employees and their representatives regarding the proposed changes and took their views into account before making a definite decision regarding the proposed changes. As regards specific matters set out in ss 47 & 48 of the model WHA Act. Opal submits that it;

consulted with relevant workers affected by the proposed changes, and their representatives;

shared relevant information about the changes with the workers;

gave workers and their representatives, including HSRs, AMWU delegates and AMWU officials, a reasonable opportunity to express their views and contribute to the decision making process;

took into account the views of workers in relation to the changes; and

advised workers of the outcome of the consultation in a timely manner.

[71] Opal referred to the efforts it made to engage with the AMWU over the proposed changes and submits those efforts were rebuffed. Opal submits that its representatives advised the AMWU of the changes on 23 October 2023, met with Ms Cassin and Ms Hogan on 26 October 2023 and met with Organiser Mr Bull on 20 December 2023. Opal further submits that despite its attempts to engage with the AMWU and it (the AMWU) being aware of the consultation period, the AMWU repeatedly expressed its disagreement with the proposed changes, criticised the consultation process, did not seek further information within the consultation timeframe and otherwise declined to engage with Opal. That refusal to engage was in Opal's submission based on the AMWU's pre-determined view that because consultation was not taking place on the basis of the AMWU's preferred model it was bound to fall short.

[72] In relation to the provision of relevant information, Opal concedes that the rationale for the proposed changes were not spelt out in the AOD Presentation provided to employees. It submits however that an inference may be drawn that answers were provided to questions raised by employees based on the recorded exchange between Company representatives and employees at the Rocklea and Scoresby sites. The inference Opal asks the Commission to draw is that similar conversations occurred at each of the ten fibre packaging sites. Opal urges that inference be drawn notwithstanding the absence of records of those broader discussions, nor evidence of talking points having been provided to company representatives to aid the communication at HSE or communications meetings and despite the lack of evidence of the distribution of the prepared FAQs beyond Opal's site HR and HSE personnel. Opal also relies on Mr Tregoweth's evidence that he was satisfied on the basis of regular briefings from Ms D'Elton that questions from employees were answered.

[73] In elaborating on how and to what extent Opal took into account the views of employees, Opal submits that it did alter its position on aspects of the AOD Policy changes proposed. It points to the delay in the implementation of the random testing regime from the initially proposed January 2024 timeframe to February 2024 and also to the timing of the removal of the site BAC self-testing kits being at the discretion of site management.

[74] Opal concedes that provision of information regarding a risk assessment for the purpose of consultation may be a relevant consideration for the purpose of assessing whether consultation undertaken meets the requirements of s 48 of the model WHA Act and whether an associated directions is reasonable. Opal argues that the omission of the provision of information regarding a risk assessment to employees was not significant in the circumstances of the proposed changes to the AOD Policy. That is because the changes to the AOD Policy and practice were not informed by a risk assessment and were not of a character or magnitude that warranted a risk assessment.

[75] As to the AMWU submission that the AOD Policy is in breach of s 273 of the Model WHS Act by imposing a 'levy' or 'charge' on workers, Opal submits that the provision is not engaged. That is because it has not, for example, sought to impose a charge on workers for the cost of Opal obtaining MRO advice in relation to employees' declared medication and laboratory confirmed drug test results. Opal also contends that the AMWU's submissions in relation to the issue go beyond the scope of the questions to be answered for arbitration and need not be considered.

[76] Opal submits in conclusion that the answers to each of questions 1a, 1b, 1c, 2a, 2b and 2c should be 'No' and that given those answers question 3 does not arise for consideration.

[77] Before turning to consider whether Opal is prevented from introducing some or all of the notified changes to the AOD Policy and practice it is necessary to identify any relevant statutory obligations and applicable case law. It appears uncontroversial between the parties that the questions before me require consideration of whether Opal's February 2024 direction that employees comply with the revised AOD Policy and practice constitutes a 'lawful and reasonable' direction. The meaning of those terms was examined by the Full Bench in Mt Arthur when considering whether the employer's implementation of a mandatory COVID-19 vaccination requirement as a site entry condition constituted a lawful and reasonable direction. On the meaning of a lawful direction, the Full Bench made the following observations;

"[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee's employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.

[69] Further, employer directions which endanger the employee's life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.

[70] The order or direction must also be 'lawful' in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle."[85]

[78] it is also noted that the Full Bench in Mt Arthur considered whether the failure of an employer to consult in accordance with the NSW WHS Act had the effect of invalidating a direction issued pursuant to an implied contractual power. That is, whether a direction would be rendered unlawful by reason of a failure to meet the statutory obligation to consult. The Full Bench in the circumstances of Mt Arthur felt that it did not need to express a concluded view on that point but did consider that non-compliance with a statutory obligation to consult would be relevant to the question of whether the direction was reasonable.

[79] I discern from the above that in determining whether required compliance with the changes made by Opal to the AOD Policy and practice would constitute a lawful direction requires me to determine whether compliance with the revised policy and practice fell within the scope of Opal employees' employment, whether compliance would endanger employees' life or health and whether an instruction to comply would require employees to do something unlawful.

[80] In now turning to consider the factors that will bear upon whether a direction is reasonable, the Full Bench in Mr Arthur stated that the 'reasonableness of a direction is a question of fact having regard to all the circumstances which may include whether or not the employer has complied with any relevant consultation obligations.'[86] The Full bench then went on to relevantly state;

"[96] Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis. The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction."

[81] It follows from the foregoing that compliance with any consultation obligations found under applicable WHS legislation or relevant industrial instruments are matters to be weighed as part of the evaluation of 'all the circumstances' in determining whether a direction is reasonable. As to what constitutes consultation the Full Bench in Mt Arthur also helpfully summarised a number of propositions drawn from case law as follows;

"[108] The following propositions may be drawn from these cases about what constitutes consultation:

the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation

a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account

the consultation needs to be real; it must not be a merely formal or perfunctory exercise

even though management retained the right to make the final decision, it is not to be assumed that the required consultation was to be a formality. Management has no monopoly of knowledge and understanding of how a business operates, or of the wisdom to make the right decisions about it. The process of consultation is designed to assist management, by giving it access to ideas from employees, as well as to assist employees to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences

the party to be consulted [must] be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon

while the word 'consultation' always carries with it a consequential requirement for the affording of a meaningful opportunity to the party being consulted to present those views, what will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to 'consultation' has about it an inherent flexibility

a right to be consulted, though a valuable right, is not a right of veto

the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal

an ordinary understanding of the word "consult" would suggest that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made

the requirement to consult affected workers would not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made

genuine consultation would generally take place where a process of decision- making is still at a formative stage

the opportunity to consult must be a real opportunity not simply an after thought

consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal

there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, this is what is going to be done' and saying to that person 'I'm thinking of doing this; what have you got to say about that?'. Only in the latter case is there 'consultation'

it is implicit in the obligation to consult that a genuine opportunity be provided for the affected party to attempt to persuade the decision-maker to adopt a different course of action. If a change has already been implemented or if the employer has already made a definite or irrevocable decision to implement a change then subsequent 'consultation' is robbed of this essential characteristic

• any offer to consult in relation to the matter was in the context that the respondent had already made an irrevocable decision, then the party had not, to use his honour's words, consulted about the decision in any meaningful way."[87] (citations omitted)

[82] Turning now to what if any consultation obligations may apply in the present case, it is accepted by the parties that the relevant framework for the purposes of assessing compliance with applicable consultation obligations is that set out in ss 47 & 48 of the Model WHS Act on which applicable state based legislation is based and which applies to Opal's various sites. The Model WHS Act relevantly states as follows;

(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging [2024] FWC 2012

At a glance

Court

Decision date

Source

Judgment (351 paragraphs)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging [2024] FWC 2012 (31 July 2024)

Parties

Legislation Cited (1)