s.739 - Application to deal with a dispute

SSX Services Pty Ltd Trading AS Infrabuild Steel Laverton Steel Mill

Alleged dispute about any matters arising under the enterprise agreement and the NES - Dispute about whether the Company complied with the disciplinary procedure in clause 21 of the Agreement - Dispute about clause 17(b) and the Company's exercise of its veto in relation to the appointment of the OHS Co-ordinator - Recommendation made

• [1] On 6 March and 15 April 2025, the Australian Workers Union (AWU) applied for the Fair Work Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (Cth) and in accordance with clause 20 of the Infrabuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025.

• [2] The respondent/employer is SSX Services Pty Limited trading as Infrabuild Steel Laverton Steel Mill (Company).

• [3] The agreement is the Infrabuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025. It was approved on 4 October 2021 and began to operate on 11 October 2021. A variation to the Agreement was approved on 19 October 2022 and operated from 19 October 2022. In accordance with clause 4 of the Agreement, the Agreement's nominal expiry date is 3 October 2025.

• [4] The clauses of the Agreement that are relevant to this dispute are:
  • Clause 20 - Dispute Settling / Resolution Procedure;
  • Clause 21 - Disciplinary Procedure; and
  • Clause 17(b) - OHS Co-ordinator.

• [5] Clauses 17(b) and 21 are appended to this decision. I do not include the wording of Clause 20 as there is no dispute between the parties about its interpretation and application to this matter.

• [6] The first dispute (C2025/1657) is about whether Infrabuild complied with the disciplinary procedure provided for in Clause 17(b) of the Agreement when it issued a written warning to Mr Jaydan Brandon, Melt Shop Operator, on 27 February 2025.

• [7] The second dispute (C2025/2984) is about whether Infrabuild could veto the appointment of Mr Brandon to the role of OHS Co-ordinator.

• [8] I answer the questions for determination as below; my reasons follow:

Question 1: Was the formal written warning issued to Jaydan Brandon on 27 February 2025 reasonable in the circumstances?

Answer: No. The Company did not follow the procedure in clause 21 of the Agreement as it failed to put the allegations to Mr Brandon as required by step (ii). Also, the issue of a written warning was disproportionate to the conduct that occurred and not reasonable in the circumstances - Mr Brandon did put down the incorrect hours, he did not do so dishonestly.

Question 2: was the process for selecting Mr Brandon for the role of OHS Co-ordinator in accordance with clause 17B?

Question 3: Was it open to the respondent to exercise its right of veto in relation to Mr Brandon's nomination for the position of OHS Co-ordinator on 14 March 2025?

Question 4: If the answer to question 3 is yes, did the respondent have reasonable grounds for exercising its right of veto in relation to the nomination of Mr Brandon to the position of OHS Co-ordinator?

Answer: Not necessary to answer, but comments made for completeness.

• [9] I conducted conferences in this matter on 8 April and 30 May 2025 but was unable to assist the parties to resolve the dispute. I arbitrated the matter on 29 and 30 July 2025.

• [10] The Union relied on the following witnesses:
  • Mr David Swan, AWU Lead Organiser;
  • Mr Jaydan Brandon, Melt Shop Operator and employee Health and Safety Representative (HSR);
  • Mr Andrew Axofrd, Mill Operator and AWU Site Delegate; and
  • Mr Richard Pitts, Melt Shop Operator and Melt Shop shift delegate.

• [11] Infrabuild relied on the following witnesses:
  • Mr Daniel Renehan, Human Resources Business Partner;
  • Mr Hercules Van der Merwe, Head of Victorian Rod and Bar Manufacturing;
  • Mr Matthew Kennedy, Melt Shop Operations Superintendent; and
  • Mr David Francis, Safety Superintendent.

The Commission's jurisdiction to deal with the disputes

• [12] It is not in dispute between the parties, and I am satisfied based on the evidence provided by Mr Swan, on behalf of AWU, and Mr Van der Merwe and Mr Renehan on behalf of the Company, that AWU has followed the procedure in Clause 20 of the Agreement and is able to refer the dispute to Commission for resolution, including arbitration.

• [13] The background facts are generally agreed between the parties.

Chronology relating to Brandon disciplinary action

• [14] The Agreement provides for quarterly site-wide Workforce Consultation Meetings (WCM or Mass Meetings). Clause 15(a) provides:

The Company will provide for a 1 hour site wide workforce consultation meeting each quarter of the year for employees and their union to discuss matters affecting their employment with the Company, subject to prior arrangement with and approval of the Company regarding the timing and location of the meeting, and the measures that will be taken to minimise disruption to operations. Attendance at these meetings will be on a without loss of ordinary time pay basis for employees who are rostered to work ordinary hours during the meeting, and will be treated as overtime for an employee who attends a meeting outside their regularly rostered hours.

• [15] Meetings relevant to this matter were held on:
  • 28 February 2024;
  • 5 June 2024;
  • 28 August 2024; and
  • 11 December 2024.

• [16] The Union prepared posters prior to each meeting. The posters included the meeting times and an agenda. In relation to payment for the meeting, the posters said:

• Four hour min for those coming in off shift
• Hour-by-hour for those staying back

• [17] Attendance sheets for the above meetings were prepared by the Union. The sheets were similar, but the column for hours was different for the meeting on 11 December 2024.

1. The attendance sheets for the meetings on 28 February and 28 August 2024 had the following columns:

1. The attendance sheet for the meeting on 11 December 2024 had the following columns:

• [18] Mr Axford, site delegate, collects the sheets and provides them to Mr Renehan.

• [19] Mr Renehan says that the attendance sheet is now prepared by the Company and only records attendance; that is, it no longer has columns relating to hours. Mr Renehan says that he considers the attendance sheet to be a timesheet.

• [20] Mr Renehan and Mr Axford had discussions about the hours that employees claimed for attending meetings. Both Mr Renehan and Mr Axford recall that they had discussions multiple times, and shortly before the meeting on 11 December 2024. Both recall that they discussed the need to claim time correctly. Mr Renehan recalls that he tried to impress upon Mr Axford that the Company took the matter seriously. Mr Axford recalls that it was an informal chat, but that he told Mr Renehan that at the start of each meeting, he told employees to only claim what they were entitled to.

• [21] At the start of the meeting on 11 December 2024, Mr Axford recalls that he told employees to only claim what they were entitled to and said that if they stayed back, they should only put down the time they stayed back. The Company disagrees with Mr Axford's interpretation about claiming the time that an employee stays back, but they were not aware that was how Mr Axford relayed the information about claiming hours.

• [22] Mr Brandon attended the meeting on 28 February 2024 and ticked a column headed "OT 1 Hrs" on an attendance sheet.

• [23] Mr Brandon attended the meeting on 5 June 2024 and wrote "4" in the column on an attendance sheet that was headed "OT 4 Hrs."

• [24] Mr Brandon attended the meeting on 28 August 2024 and ticked a column headed "OT 4 Hrs" on an attendance sheet.

• [25] Mr Brandon attended the meeting on 11 December 2024 and wrote "2" in the column headed "OT 1 or 4 Hrs" on the attendance sheet.

• [26] On 8 January 2025, Mr Renehan sent an email to Mr Swan to invite him to discuss the Company's concerns about employees "claiming additional payments when they attend the quarterly AWU meetings" and to inform him that the Company would be calling 2 employees who had "potentially done the wrong thing" into a HR meeting.

• [27] On 10 January 2025, Mr Brandon was called into a meeting with Mr Renehan and Mr Kennedy. Mr Pitts attended the meeting as Mr Brandon's Union delegate and support person. Mr Renehan asked Mr Brandon why he had put down 2 hours on his attendance sheet for 11 December 2024.

• [28] While there is disagreement about what precisely was said during this meeting, the witnesses agree on key aspects. Both Mr Brandon and Mr Renehan made contemporaneous notes of the meeting, which also agree on key aspects.

1. Mr Brandon was informed that he had incorrectly claimed 2 hours when he was only entitled to 1 hour for the meeting;
2. Mr Renehan used the term "wage theft;"
3. Mr Brandon explained that he had put down 2 hours on the basis of information provided by the Union, and showed Mr Renehan a copy of the flyer for the meeting on his phone, which said that payment for meetings was "hour-by-hour for those staying back;"
4. Mr Brandon asked the Company to check his clock in/clock out records;
5. There was discussion about how other people had put down their hours for that particular meeting and in past meetings;
6. There was discussion about relevant clauses from the enterprise agreement. Mr Renehan projected onto a monitor Clause 15(a) - Consultation with Employees and Union Representatives (although both Mr Brandon and Mr Pitts recalls that Clause 15(b) was initially shown); and
7. Mr Brandon was not informed of an outcome during that meeting.

• [30] Neither Mr Renehan nor Mr Kennedy recall that Mr Brandon said he was happy to receive one hour pay only for the meeting. However, Mr Brandon's contemporaneous handwritten notes include this and provide the context of him saying so, which is that he repeats that it was the Union's communication error. I find that it was more likely than not that Mr Brandon did say that he was happy with one hour's pay, and that Mr Renehan and Mr Kennedy may not recall this because they were focussed in the discussion on their perception that Mr Brandon was evading responsibility for claiming hours that he was not entitled to claim.

• [31] Neither Mr Renehan nor Mr Kennedy recall that Mr Brandon said this was an attempt to get rid of him. Because it is contained in Mr Brandon's contemporaneous handwritten, I consider it more likely than not that he said these words or similar. It was a view that Mr Brandon holds, and one he repeats. I accept that Mr Renehan and Mr Kennedy do not recall it, as they may not have heard him because the words were said at the conclusion of the meeting.

• [32] Also on 10 January 2025, Mr Swan telephoned and spoke with Mr Renehan about his meeting with Mr Brandon. In that telephone call, Mr Swan said:

This is my stuff up. I've clearly got the information wrong on the flyers, and you can't discipline someone for my stuff up.

• [33] On 13 January 2025, Mr Swan sent a letter to Mr Renehan. The subject of that letter was: "re: Allegations of Falsification of Timesheets and Notice of Concerns." That letter expressed concern about Mr Brandon's treatment by management, and said that if the Company had checked Mr Brandon's clock in and clock out times, they would have seen that he had been on site for 2 hours that he put down on the attendance sheet. The letter also said:

With regards to the mass meeting, it has come to my attention that the flyers informing members of the meeting are erroneous in their advice on how members should be paid for attending. This is the fault of nobody but myself, the author of the fliers, and should not be cause for disciplinary action of AWU members.

• [34] The letter also said that the Company had not yet paid Mr Brandon for the 11 December 2024 meeting. Mr Swan further said that a pattern of targeting Mr Brandon was emerging, and referred to other incidents on 24 July 2024 and 12 December 2024. Last, Mr Swan said,

I have expressed my broader concerns around this and specifically around the treatment of whoever takes the role of Site OHS Coordinator (of which you are aware that Mr Brandon is a nominee) in my letter of 13th December 2024, to which I have yet to receive a reply.

• [35] The Company also spoke with another employee about the hours they claimed for the meeting on 11 December 2024. The Company initially issued a written warning to the other employee but this was changed to a verbal warning on 3 February 2025. Mr Renehan, Mr Kennedy and Mr Swan were involved in meetings and correspondence relating to the other employee. No dispute has been lodged with the Commission about that matter. I draw no inferences from the other employee not bringing a dispute.

• [36] On 10 February 2025, the Company paid Mr Brandon one hour for his attendance at the meeting on 11 December 2024.

• [37] On 11 February 2025, Mr Renehan and Mr Kennedy met with Mr Brandon, Mr Axford and Mr Swan to deliver the outcome of the disciplinary discussion from 10 January 2025, which was that the Company decided to issue Mr Brandon with a written warning. After AWU disputed this outcome on behalf of Mr Brandon, Mr Van der Merwe confirmed that the Company considered a written warning was the appropriate outcome. On 27 February 2025, the Company issued a first written warning to Mr Brandon for "Breach of Fraud Policy" in relation to "claiming additional overtime for attending a meeting on 11 December 2024."

• [38] On 14 February 2025, Mr Swan met with Mr Van der Merwe about the disciplinary action taken against Mr Brandon. On 18 February 2025, Mr Van der Merwe wrote to Mr Swan, advising that he would uphold the written warning issued to Mr Brandon and set out his reasons for doing so which were that:
  1. Mr Brandon had in the past always claimed 1 or 4 hours;
  2. Mr Axford had on a number of occasions informed attendees to sign the attendance sheet and claim 1 or 4 hours; and
  3. he found it difficult to believe that Mr Brandon did not know how many hours to claim.

• [39] On 27 February 2025, Mr Renehan emailed the written warning to Mr Brandon and Mr Swan. The written warning relevantly says:

It has been determined that your actions have contravened the standards and expectations outlined in the Fraud Policy, which strictly prohibits fraudulent and corrupt activities, including but not limited to:

• Dishonest activity involving deception resulting in actual or potential financial loss.
• Providing false or misleading information to the Company.

Following an investigation into the claiming of additional overtime for attending a meeting on 11 December 2024 it was concluded that your conduct breached the Fraud Policy.

Your actions undermine the Company's commitment to integrity and trust.

• [40] There has continued to be disputation between the parties about unpaid overtime and other payments, including for attending the Commission's conferences in relation to these disputes. The Union also contends that the Company has excluded Mr Brandon from the overtime roster.

• [41] The role of OHS Co-ordinator has been a part of the enterprise agreement in predecessor agreements dating back to 2003. However, Clause 17(b) in its current form is significantly different from the relevant clause in the immediate predecessor agreement. The role has been and continues to be the source of disputation at the workplace.

• [42] Mr Paul Spears was the first occupant of the role, which he held from February 2004 until his retirement in 2017. Mr Spears was appointed to the role by a panel of Union and Company representatives in accordance with the then relevant agreement clause (clause 14(h) of the Smorgon Steel Certified Agreement 2003). Relevantly, the clause provided that the panel would conduct an election process.

• [43] The role was then held by Mr Robert Camilleri from around December 2017. Mr Camilleri's appointment to the role was also by a panel of Union and Company representatives. However, the agreement clause at that time (clause 17(b) of the OneSteel Laverton Steel Mill Enterprise Agreement 2015) did not provide that the panel would conduct an election process. The Union nevertheless conducted an election and Mr Camilleri was both the person whom the workforce voted for and the person whom the panel wished to appoint.

• [44] The role was held by Mr Garry Bone from around April 2022. Mr Bone was appointed to the role following an election conducted in accordance with clause 17(b) of the current enterprise agreement. There were 5 nominees for the role, and the Company wished to veto 3 of the nominees, including Mr Bone. The Union proceeded with an election of the nominees, and, through discussion, the Company ultimately withdrew its veto of Mr Bone.

• [45] No one currently fulfils the role of OHS Co-ordinator. The role has been vacant since Mr Bone resigned from his employment with Infrabuild in November 2024, but was effectively vacant from around March 2024 as Mr Bone was off work on personal leave from around March 2024 until his employment ended. I have previously published a decision in relation to a dispute brought on Mr Bone's behalf by the Union in [2025] FWC 906.

• [46] There is no agreed upon process for nominating and selecting a person to fulfil the role of OHS Co-ordinator.

• [47] At the time that that the role of OHS Co-ordinator was first introduced in September 2017, a role description was created. Mr Van der Merwe's evidence is that the role description has not been revisited since that time. It does not appear that the role description was used in 2022 for Mr Bone's appointment to the role. It was not used in the most recent process to appoint Mr Brandon to the role, which is the subject of this dispute.

• [48] At a Consultative Committee Meeting on 5 December 2024, the Union informed Infrabuild that it would seek nominations for the OHS Coordinator role at the next Mass Meeting later in December, and that it would hold a vote at the following Mass Meeting in December 2024 or February 2025. Mr Van der Merwe was present at the meeting and recalls that detail.

• [49] At the Mass Meeting on 11 December 2024, Mr Brandon was the only person who nominated for the role of OHS Co-ordinator.

• [50] On 13 December 2025, Mr Swan emailed Mr Van der Merwe and informed him that the Union had opened nominations for the role of OHS Co-ordinator. Mr Swan did not, at this time, inform Mr Van der Merwe that Mr Brandon had nominated for the role because nominations had not yet closed.

• [51] On 13 January 2025, Mr Swan emailed Mr Renehan. I have detailed the contents of that email above at paragraph [33]. Relevantly, it included reference to Mr Brandon being nominated for the role of OHS Co-ordinator.

• [52] Mr Van der Merwe's evidence is that he was aware of the email on 13 January 2025, but could not recall whether he was aware on 13 January 2025. While the above email was addressed to Mr Renehan, Mr Renehan replied to Mr Swan to say that, as it included allegations against him, the letter would be elevated to senior management. Mr Renehan also gave evidence that he would have discussed the contents of the letter with Mr Van der Merwe.

• [53] Many things happened on 26 February 2025. First at 5:30am, the Union held a Mass Meeting where Mr Brandon was voted into the role of OHS Coordinator. There were no other nominees for the role. At 10:10am, Mr Swan emailed Mr Van der Merwe to inform him that Mr Brandon had been voted into the role of OHS Co-Ordinator. At 10:30am, there was a Consultative Committee Meeting. Mr Van der Merwe attended that meeting as did Mr Swan. Mr Brandon was also present at the meeting as Mr Swan had invited him to attend following him being voted into the role of OHS Coordinator.

• [54] During the Consultative Committee Meeting on 26 February 2025, Mr Swan verbally informed Mr Van der Merwe that Mr Brandon had been voted into the role of OHS Co-ordinator. In relation to Mr Brandon in the OHS Co-ordinator role, Mr Van der Merwe said,

Thanks for that Dave, we will review the proposal and get back to you.

• [55] Mr Van der Merwe says that he did not expect Mr Brandon to be present at the meeting, and nor is it usual for HSRs or the OHS Co-ordinator to attend the Consultative Committee Meetings, as safety-related matters are discussed at another forum. He says he did not consider it appropriate to bring up any disciplinary related matters in Mr Brandon's presence and that he had to undertake a process first to assess Mr Brandon's suitability for the role. Mr Van der Merwe further says that as no one had actively undertaken the position for 10 to 12 months, he did not consider there was any urgency in relation to the role.

• [56] On 13 March 2025, Mr Swan emailed Mr Van der Merwe:

I write with regards to my email of 26th February 2025 where I informed you that - pursuant to section 17 of the EA - Jaydan Brandon had been selected by the workforce to take on the vacant position of OHS Site Coordinator. As per my letter of 13th January 2025, you were made aware that Mr Brandon was a nominee for this role.

As Mr Brandon is no longer a nominee and has been selected by the workforce to take on this position, and Infrabuild has not registered any formal concern or veto regarding his nomination, we expect that he will begin this role imminently.

• [57] On 14 March 2025, Mr Van der Merwe emailed a letter dated 12 March 2025 (which is when the letter was drafted) to Mr Brandon and Mr Swan. The letter said:

Following a thorough review of your nomination for the position of OHS Co-ordinator, we regret to inform you that your application has been vetoed in accordance with 17(b)(v) of [the Agreement].

As outlined in clause 17(b)(v) of the Agreement, the Company retains the right to veto nominees for this role on reasonable grounds. After reviewing your work history, including recent disciplinary matters as detailed in your written warning issued on 27 February 2025, we have determined that you do not currently meet the requirements and expectations for this role.

Our decision is based on the need to ensure that individuals in this position uphold the highest standards of workplace integrity and trust. While we recognise your contributions to the Company more broadly, we encourage you to focus on improving compliance with policies and procedures.

• [58] The Union disputed that the Company could veto Mr Brandon.

Question 1: Was the formal written warning issued to Jaydan Brandon on 27 February 2025 reasonable in the circumstances?

• [59] The Union challenges the formal written warning on procedural and substantive grounds.

• [60] In relation to procedural matters, the Union contends that the Company failed to comply with the procedure in all respects:
  • it did not act expeditiously,
  • it did not provide information as required;
  • it did not notify Mr Brandon and the Union of the disciplinary interview;
  • it did not give Mr Brandon the opportunity to respond; and
  • it did not conduct the interview at the appropriate level of management.

• [61] In relation to substantive challenge, the Union says that the Company could not reasonably find that Mr Brandon was dishonest and that the Company treated Mr Brandon differently compared with others.

• [62] The Company says that it followed the procedures required and contends that it was reasonable for it to issue the warning to Mr Brandon as his explanation for why he had written "2" in the relevant column was implausible in the context of his having attended many meetings in the past and correctly claimed hours.

• [63] Clause 21 of the Agreement is prescriptive about the steps that the Company must take when undertaking disciplinary procedure. There are 3 steps or parts to the procedure, all of which are mandatory due to the use of the words "the following shall apply" in clause 21(a).

• [64] The headings for each of the steps/parts of the procedure do not entirely match with the paragraph below.

• [65] The first step is labelled (i) Notification. There are 3 components of this step. The first is that a supervisor or manager may decide to take disciplinary action (i.e. to counsel, orally warn or formally warn). The second component refers to timing - the decision may be made at the time of the incident. Neither of these components are mandatory. The third and final component in this step is that the employee and their Union delegate must be advised of all facts known to management "at the time relating to the incident."

• [66] The second step is labelled (ii) Disciplinary Interview. This step requires that the employee and the Union delegate are notified of the time and place for the conduct of a disciplinary interview. This step also requires that the allegations, including their seriousness, are put to the employee during the interview. This step further requires that the employee will be given the opportunity to respond. This includes that the employee and their Union delegate may request additional time to respond. Last, this step provides that the disciplinary interview take place no later than 3 working days after notification of the incident (that is, the first step). The timeframe is specified as a guide; it is not prescriptive.

• [67] The final step is labelled (iii) Formal Disciplinary Action and sets out the requirements of how an employee is informed of disciplinary action if it is warranted. This requires that the action is 'delivered' by the supervisor in consultation with the Superintendent or an appropriate Company officer. This step also requires that the employee's Union delegate or the Site Union Delegate be advised and given the opportunity to represent the employee, unless the employee declines.

• [68] Clause 21(e) provides for an extended period for the investigation, and gives a guide that such an extension must not exceed 7 days.

• [69] Clause 21(b) provides general guidance that the Company may terminate an employee if they are given 3 warnings within 12 months and clause 21(c) provides that warnings are removed from an employee's file after 12 months.

• [70] Last clause 21(d) provides that disputes about the disciplinary action will follow the Dispute Settling Procedure in clause 20 but under clause 21(f) disputed terminations are dealt with in accordance with the Act.

Did the Company fail to follow the procedure in the Agreement?

• [71] First, the Union submits the Company failed to act expeditiously. Reading the clause as a whole, it is clear that the procedure requires prompt action. While there are no prescriptive timeframes, the guide times are brief - 3 working days in step 2 for the disciplinary interview and 7 days in clause 21(e) where an extended investigation is warranted.

• [72] I am satisfied that the Company did not act as expeditiously as the clause requires, but taking all the circumstances into account, it was reasonable that they delayed. The key reason that the Company did not inform Mr Brandon or the Union that they intended to take action was that Mr Brandon was on leave from around 12 December 2024 until 9 January 2025. The Company also had its annual shutdown during this period. Mr Renehan spoke with Mr Brandon on 10 January 2025. This was sufficiently expeditious in the circumstances.

• [73] The Union submits the Company failed to follow step 1 in that the decision to take disciplinary action was made by the wrong person (Mr Renehan) rather than Mr Brandon's supervisor or immediate manager. Relatedly, the Union says the Company failed to follow step 3 in that Mr Renehan delivered the decision, when the requirement is that the decision is delivered by "the supervisor, in consultation with the Superintendent, or an appropriate Company officer."

• [74] I do not consider that this constituted a procedural breach. In relation to step 1, the Union's submissions would mean that only Mr Warren Bourne, shift supervisor for Mr Brandon's relevant shift, could decide to take action. The Company submits that step 1 is irrelevant. I do not agree that it is irrelevant. It has work to do in terms of a decision to take action. To me, the clause reads that it is intended to apply when an incident occurs and a relevant supervisor or manager is present. The incident that precipitated the Company taking action against Mr Brandon does not occur during a shift; it related to a Union meeting. Mr Renehan is a manager responsible for ensuring payments are correct for Mass Meetings. He is the appropriate person to decide whether to take action for this type of incident. In relation to step 3, Mr Renehan is an appropriate Company officer, an alternative that the step allows for.

• [75] The Union submits that the Company also failed to comply with step 1 because the Company did not give Mr Brandon all the known facts at the time they decided to take action. On 10 January 2025, Mr Kennedy told Mr Brandon that Mr Renehan was coming to speak with him and that he should get his Union delegate. Mr Brandon then said,

What have I done now? It's only the second day back and I haven't even done anything.

• [76] Mr Brandon recalls that Mr Kennedy then said

You probably don't even know what you've done. It's about the last mass meeting and how many hours you put down.

• [77] Mr Brandon's and Mr Kennedy's evidence is the same except that Mr Kennedy does not recall that Mr Brandon said "it's only the second day back" etc and Mr Kennedy says that he never said, "You probably don't even know what you've done" but did say that it related to the last Mass Meeting and the hours Mr Brandon claimed. I do not consider that I have to resolve the disagreement between the recollections of Mr Brandon and Mr Kennedy. I consider that both gave their evidence frankly and honestly and in order to assist the Commission. Mr Kennedy was not challenged in relation to this part of his evidence. What is relevant is that he said at least the words that the interview was "about the last Mass Meeting and how many hours you put down." During the interview itself, the Company gave Mr Brandon the attendance sheets. I consider that the Company informed Mr Brandon of all the known facts.

• [78] I now deal with whether this was sufficiently informing Mr Brandon of the allegations against him.

• [79] The Union submits that the Company did not comply with step 2 of the procedure as it failed to notify Mr Brandon and the Union of the disciplinary interview, failed to put the allegations to him, thereby depriving him of the opportunity to respond. The Company submits that it did what the step required in that Mr Brandon was made aware of the time and place for his interview, Mr Renehan put the allegations to him during the interview, and he had the opportunity to respond.

• [80] I agree with the Company's interpretation that the "disciplinary interview" and "investigation" referred to in step 2 are the same event. While the Company did comply broadly with what step 2 requires, I consider that they have not complied with step 2 because they failed to put clearly to Mr Brandon the allegation that he breached the Company's fraud policy. The terms of the written warning are not the terms in which the allegation was put to Mr Brandon.

• [81] Step 2 of the disciplinary clause requires the Company to put the allegation, "including its seriousness" to the employee. The clause explicitly allows for this to be done in the interview itself (that is, the clause does not require that the allegation is put prior to the interview). But I consider that the words - "the allegations, ... including the seriousness of the allegations" - require that the allegations are put with precision and specificity, particularly in these circumstances where Mr Brandon was ultimately warned of dishonesty and fraud.

• [82] The allegation that was put to Mr Brandon was that he claimed 2 hours of overtime, when he was only entitled to 1 hour because the meeting was scheduled at the conclusion of his shift, and that it was incorrect timekeeping. Neither Mr Renehan nor Mr Kennedy referred to the Company's fraud policy until they informed Mr Brandon of the outcome on the meeting of 11 February 2025. I accept that Mr Brandon was trained on the fraud policy in 2022, and I accept that the training deals with circumstances in which an employee claims overtime hours that they did not work.

• [83] There was also much argument about the Company using, or misusing, the phrase 'wage theft' when conducting the interview with Mr Brandon and Mr Pitts on 10 January 2025. I consider that the Company was required to be specific and to put the allegation that Mr Brandon was ultimately warned of (dishonesty and fraud) and that use of the term wage theft was not sufficient to clearly put Mr Brandon on notice that the allegation related to fraud and dishonesty and that it was serious.

• [84] The purpose of informing an employee of the allegation is to allow for the employee to have a fulsome opportunity to respond. The Company deprived Mr Brandon of the opportunity to fully respond by failing to put the allegations with the precision and specificity that the Agreement requires.

Challenging the reasonableness of the disciplinary action

• [85] I consider that clause 21(d) allows the employee to challenge the action taken by the Company. This wording is broad enough to encompass a challenge to the reasonableness of the action. Reasonableness necessarily includes that there was valid basis for the action taken and that the action taken was proportionate. Reasonableness excludes that the action taken was capricious or spiteful. Reasonableness also includes natural justice and procedural fairness, but this is dealt with by the explicit procedural steps of the clause that I addressed above.

• [86] I am of the view that it was reasonable for the Company to decide to take action for what it perceived to be incorrect claims for payment, even if it had not taken any action in the past.

• [87] The Agreement provides for the Workforce Consultation Meetings (Mass Meetings), and includes a term relating to how attendance at the meetings will be treated. Relevantly, clause 15(a) says:

Attendance at these meetings will be on a without loss of pay basis for employees who are rostered to work ordinary hours during a meeting, and will be treated as overtime for an employee who attends a meeting outside their regularly rostered hours.

• [88] Both parties gave evidence, and there is no disagreement, that the Company held concerns about how to record attendance and employees incorrectly claiming pay for attending meetings. Both parties gave evidence that this was regularly brought up by Mr Renehan with Mr Swan and Mr Axford. It is also common ground that the attendance sheet for the meeting that is the subject of this dispute (11 December 2024) was prepared by Mr Axford, as prior attendance sheets had been. Mr Renehan gave evidence that this practice has now changed.

• [89] Mr Renehan gave evidence of how the Company applies clause 15(a). The Union does not dispute the Company's application of the clause, which is as follows:

1. Where the meeting occurs during an employee's rostered hours and the employee attends, the Company pays the employee for those hours of work. No time is deducted nor is extra time paid;
2. Where the meeting occurs before or after an employee's shift and the employee either comes into work early or stays back to attend, the Company pays one hour at the relevant overtime rate; and
3. Where the meeting occurs when the employee is not rostered on and the employee comes into work to attend, the Company pays the employee four hours at the relevant overtime rate.

• [90] This therefore means that the Company's view is that the options for payment are

• [91] Clause 41 of the Agreement relates to overtime and provides for different overtime rates depending on
  • which day of the week overtime is worked on:
    • Monday to Saturday (clause 41(c));
    • Sunday (clause 41(d); or public holiday (clause 41(e)); or
  • in circumstances where the employee is a continuous shiftworker (clause 41(c)); or
  • in circumstances where the employee is recalled to work (clause 41(f)).

• [92] Mr Brandon is a continuous shiftworker.

• [93] The Union contends that Mr Brandon was not being dishonest when he wrote down "2" in the column headed "OT 1 or 4" for his attendance at the Mass Meeting on 11 December 2024. Mr Brandon and the Union emphasise that the Union flyers may have misled him, in that the flyers said:

• Four hour min for those coming in off shift
• Hour-by-hour for those staying back

• [94] The Company (Mr Renehan initially and Mr Van der Merwe after the Union disputed the disciplinary action) formed the view that Mr Brandon's explanation for writing down "2" was implausible because Mr Brandon had correctly claimed hours in the past.

• [95] I am persuaded by the Union's arguments that Mr Brandon was not being dishonest but may have been misled. The flyers do not accurately represent the Agreement wording nor the Company's application of the clause. There was evidence of flyers for Mass Meetings held on 28 February 2024, 28 August 2024 and 11 December 2024. In relation to paid meetings, wording is the same on all flyers. Mr Swan's evidence is that he prepared the flyers. Mr Axford's evidence is that, at the start of the meeting on 11 December 2024, he told employees attending the meeting to put down the hours they stayed back.

• [96] There is also no clear history of any consistent claim by Mr Brandon, so it is not clear that Mr Brandon should have known what to put down. Mr Renehan provided me with attendance sheets for 28 February 2024, 28 August 2024 and 11 December 2024. Relevantly, the column for hours was changed for the Mass Meeting on 11 December 2024, so that it combined the columns headed OT 1 hours or OT 4 hours that appeared in earlier attendance sheets. In the earlier attendance sheets, some employees ticked a column, some employees wrote a number and some employees left the columns blank. On the 11 December 2024 attendance sheets, some employees wrote 1 or 4, some employees left the column blank. Only Mr Brandon wrote 2.

• [97] However, I am not persuaded that there was differential treatment of Mr Brandon. There was only one comparator, and I accept the Company's evidence that the circumstances were not relevantly the same. The other employee was not rostered to work and came in off shift; however, the employee was also called in to work an overtime shift on the same day. In particular, I accept Mr Van der Merwe's evidence that he took into account the other employee's apology.

• [98] As detailed above, I am of the view that the Company did not follow the procedure in clause 21 of the Agreement as it failed to put the allegations to Mr Brandon as required by step (ii) and that while Mr Brandon did put down the incorrect hours, he did not do so dishonestly. As such, I consider that the issue of a written warning was disproportionate to the conduct that occurred and not reasonable in the circumstances.

Question 2: was the process for selecting Mr Brandon for the role of OHS Co-ordinator in accordance with clause 17(b)?

• [99] Clause 17(b) is not prescriptive about the process for selecting an OHS Co-ordinator.

• [100] Clause 17(b)(ii) says merely that applications will be sought from existing employee health and safety representatives (HSRs). This repeats in greater detail part of Clause 17(b)(i) which provides that the role will be full-time and that it will be "drawn from employee ranks." Clause 17(b)(ii) does not say who will seek applications.

• [101] Clause 17(b)(ii) then says that if there is more than one applicant, a vote of the workforce will determine who will become OHS Co-ordinator.

• [102] Clause 17(b)(v) provides that the Company will review nominations and raise concerns about nominees prior to appointment. Clause 17(b)(v) expressly allows the Company to veto a nominee on reasonable grounds. Clause 17(b)(v) also requires that if the Company raises concerns, the concerns will be given genuine consideration. This is to be done through the consultative mechanisms at clause 15 of the Agreement.

• [103] The balance of clause 17(b) deals with
  • what happens with the OHS Co-ordinator's HSR position (clause 17(b)(iii));
  • quarterly performance reviews (clause 17(b)(iv);
  • who the OHS Co-ordinator reports to (clause 17(b)(vi));
  • type of role and maintenance of pay (clause 17(b)(vii));
  • training (clause 17(b)(viii));
  • focus of the role (clause 17(b)(ix)); and
  • what happens if the OHS Co-ordinator is on long leave (clause 17(b)(x)).

• [104] In summary, the entirety of the process for appointing an OHS Co-ordinator is:
  • First, that applications will be sought; only current HSRs may apply.
  • Second, if there is more than one application, the workforce votes; the person who receives the most votes becomes the OHS Co-ordinator.
  • Third, the Company will review nominations, raise concerns and may veto a nominee.

• [105] The parties gave evidence about how prior OHS Co-ordinators were appointed. The history of prior appointments is not extensive, and does not shed any light on what the Agreement requires because only one prior appointment was conducted under the clause as it is currently worded.

• [106] I have set out the steps taken in relation to Mr Brandon's selection of the role of OHS Co-ordinator above. There is no factual dispute in relation to the steps taken.
• [107] In relation to how those steps matched up with process required by clause 17(b) of the Agreement, the Union called for nominations at the Mass Meeting on 11 December 2024. Only Mr Brandon nominated; Mr Brandon was eligible to nominate as he is a current employee who is also a HSR. This was in accordance with the first step. The Union kept nominations open and at the next Mass Meeting on 26 February 2025 conducted a vote, even though Mr Brandon was the only nominee. This was in accordance with the second step.

• [108] Yes; as detailed above, I consider that the process for selecting Mr Brandon to the role of OHS Coordinator was in accordance with the requirements of clause 17(b) of the Agreement.

Question 3: Was it open to the respondent to exercise its right of veto in relation to Mr Brandon's nomination for the position of OHS Co-ordinator on 14 March 2025?

• [109] As detailed above, the third part of the Agreement's process for appointing an OHS Co-ordinator allows for the Company to review nominations, raise concerns and veto nominees. The Company exercised its veto on 14 March 2025 by email from Mr Van der Merwe to Mr Brandon and Mr Swan.

• [110] The Union submits that the Company could not exercise the veto after the vote was conducted at the Mass Meeting on 26 February 2025 and Mr Brandon was voted into the role. The Union further submits that the Company could not exercise its veto because it did not raise any concerns about Mr Brandon's nomination, nor attempt to discuss them through the consultative process as required by clause 17(b)(v) of the Agreement.

• [111] The Company submits that it had no ability or opportunity to raise any concerns about Mr Brandon's nomination. This is because, first, the Union kept nominations open until the Mass Meeting on 26 February 2025, and second, Mr Swan emailed Mr Van der Merwe 20 minutes prior to the Consultative Committee Meeting on 26 February 2025 to inform him that Mr Brandon had been voted into the role, and he did not see the email prior to that meeting.

• [112] I consider that the Company had ample opportunity to raise their concerns and veto the nomination of Mr Brandon for the role of OHS Co-ordinator. the Company did not do raise their concerns or attempt to exercise the veto at any stage, including in the time immediately after they were informed that he was the only nominee and had been voted in (26 February 2025.)

• [113] First, the Company were aware that the Union wished to commence the process of appointing an OHS Co-ordinator because the Union informed the Company at the Consultative Committee Meeting on 5 December 2025.

• [114] Second, the Company were clearly aware of Mr Brandon's nomination - Mr Renehan from 13 January 2025 and Mr Van der Merwe from around 22 January 2025. This is because Mr Swan sent a letter to Mr Renehan on 13 January 2025. The letter disputed the disciplinary outcome issued to Mr Brandon, but also raised other concerns including treatment of the OHS Co-ordinator and said that Mr Brandon was a nominee for that role. Mr Renehan's evidence is that he definitely discussed the letter with Mr Van der Merwe. Mr Renehan's evidence is that he cannot exactly recall what he told Mr Van der Merwe but he has almost daily, and sometimes twice daily, debriefs with Mr Van der Merwe about matters generally around the mill and would have discussed a variety of matters relating to Mr Brandon. Mr Renehan could not recall if he did mention that Mr Brandon was a nominee for the role of OHS Co-ordinator. I find it more likely than not that Mr Renehan did mention to Mr Van der Merwe that Mr Brandon was a nominee for the OHS Co-ordinator role and that he did so around the time he received the letter dated 13 January 2025. This is because Mr Renehan's role is to deal with industrial matters and this matter was significant. The Union disputed the Company's treatment of Mr Brandon; had previously raised issues around the OHS Co-ordinator role and it was the subject of a dispute before the Commission. In addition, Mr Renehan sent a reply email to Mr Swan on 16 January 2025 to say that the letter would be elevated to senior management.

• [115] On 22 January 2025, Mr Swan sent a letter addressed to Mr Van der Merwe that attached his letter of 13 January 2025 to Mr Renehan. Mr Van der Merwe conceded under cross-examination that he was aware of those letters when they were emailed directly to him on 22 January 2025. He said he did not consider the nomination at that point in time because the letters were about disciplinary action taken against Mr Brandon and one other employee.

• [116] Last, while there might have been some surprise that Mr Brandon attended the Consultative Committee Meeting on 26 February 2025 and so Mr Van der Merwe may not have wished to raise the Company's concerns at that time, the Company did not then raise concerns until after 13 March 2025, when the Union informed the Company that Mr Brandon should start in the role of OHS Co-ordinator.

• [117] I understand why Mr Van der Merwe did not wish to raise objections to Mr Brandon in the role of OHS Co-ordinator during the Consultative Committee Meeting on 26 February 2025 - he had only just been informed that Mr Brandon was voted into the role, and he would have to raise those concerns (which related to disciplinary and performance matters) in Mr Brandon's presence as well as in the presence of other people in the meeting. However, Mr Van der Merwe did not then raise the concerns in the 3 weeks after the meeting and did not raise them until after Mr Swan's email to him on 13 March 2025.

• [118] No, it was not open to the respondent to exercise its right of veto in relation to Mr Brandon's nomination for the position of OHS Coordinator on 14 March 2025.

Question 4: If the answer to question 3 is yes, did the respondent have reasonable grounds for exercising its right of veto in relation to nomination of Mr Brandon to the position of OHS Co-ordinator?

• [119] For completeness, I intend to briefly answer this question.

• [120] Mr Van der Merwe gave evidence about what he expects of a person in the role, and also put into evidence a job description for the role of OHS Co-ordinator that is dated 25 September 2017 and a draft Skills Profile that he says was drafted in 2023. The 2017 job description was not used for Mr Bone's appointment to the role nor for Mr Brandon's nomination. The 2023 draft has not yet been finalised. Mr Van der Merwe's evidence is that he has not looked at it, including in preparation for the hearing of these disputes. While it is entirely reasonable for the Company to have expectations and requirements for the role, they did not finalise what those requirements were and nor did they convey those requirements to the Union or potential nominees. The only clear requirement for a person to hold the role of OHS Co-ordinator is that they are a current employee who is an HSR. Mr Brandon meets this requirement.

• [121] The Company filed evidence - particularly the statement and oral evidence of Mr Kennedy - about the basis of the Company's veto of Mr Brandon's nomination. I will not detail all the matters here but in summary, they relate to the manner in which Mr Brandon performed his role as HSR, with matters dating back to February 2024. I consider that the matters and the manner of Mr Brandon's performance could form the basis for the respondent to have reasonable grounds to veto Mr Brandon's nomination. But, in order for the matters to be reasonable grounds, the Company needed to have given Mr Brandon an opportunity to have responded to the matters, at or near the time they arose. The respondent did not give Mr Brandon an opportunity to respond to each of the specific events that underscored the reasons they had for vetoing his nomination, nor had they informed him of their views about the manner of his performance.

• [122] My answer to this question is that, even if the Company could exercise its veto, it did not have reasonable grounds to do in circumstances where it had not previously raised with the nominee the matters on which it relied.

• [123] While I have answered the questions for determination that was agreed between the parties, I do not consider that it will assist them to resolve the dispute, particularly in relation to the role of OHS Co-ordinator.

• [124] I make the following recommendation to resolve the dispute:

(1) The Union and the Company should consult with the intent of finalising:

• Selection criteria and job description for OHS Co-ordinator role
• Selection process, including to allow for the Company to exercise its veto in accordance with Clause 17(b) of the Agreement

(2) The selection process should include at least the following matters

• Process for advertisement and nominations;
• After nominations close, requirement that the Union notify the Company in writing of the names of nominees before proceeding to any vote;
• Timeframe for the Company to inform the Union whether it vetoes any nominees and grounds for veto; and
• Process and timeframes for the Union and nominee to challenge the basis of a veto prior to appointment.

Mr P Reilly, of AWU_,_ on behalf of the Applicant.

Mr L Saccoccio, of AIG, on behalf of the Respondent.

Printed by authority of the Commonwealth Government Printer

Clause 17 - Safety policies, procedures, and equipment.

(a) The Company shall replace safety equipment and boots as fair wear and tear requires.

(i) The parties agree to maintain the full-time position or OH&S Co-ordinator for the site, to be drawn from employee ranks.

(ii) The process for selecting an OHS Co-ordinator will be to seek applications from existing employee health and safety representatives (HSRs). Where there is more than one applicant, the OHS Co-ordinator will be determined by a vote of the workforce. The Applicant who receives the most votes will be appointed to the role.

(iii) The OHS Co-ordinator will remain the employee HSR for their existing designated work group (DWG) and will operate in accordance with this clause and the prevailing OHS legislation, currently the Occupational Health and Safety Act 2004 (Vic). The relevant DWG will be encouraged to elect a deputy HSR.

(iv) The OHS Co-ordinator will be subject to a quarterly review process on their performance via the consultative mechanisms set out at Clause 15.

(v) The Company will review nominations for OHS Co-ordinator and raise concerns about nominees through the relevant consultative mechanisms that Clause 15 prior to appointment or election. Any concerns so raised will be given genuine consideration. The Company does have a right or veto on reasonable grounds in relation to nominees.

(vi) The OHS Co-ordinator reports to the safety manager and is accountable to the workforce and the Company.

(vii) The OHS Co-ordinator is a day role. No disadvantage ex- shift; an employee who comes off shift to fill the role, will continue to be paid the total wage rate for their classification based on the roster being worked by their DWG.

(viii) The OHS Co-ordinator must be afforded suitable training to allow them to properly discharge their duties.

(ix) The OHS Co-ordinator is to have a proactive focus on safety and work to reduce the incidence of injuries in the workplace.

(x) Where the OHS Co-ordinator takes an extended period of leave, an appropriate mechanism will be implemented to cover extended leave (e.g. LSL) the position, to be determined in accordance with the consultative mechanisms set out in clause 15.

(a) When management, at the time of the incident, have made a decision to investigate or use the disciplinary procedure, the following shall apply:

The supervisor or immediate manager at the time of the incident may decide to counsel, orally warn or formally warn the employee. The employee shall be given all the facts known to management at the time relating to the alleged misconduct. The employee's union delegate shall also be advised and provided with these facts, subject to privacy, procedural fairness and confidentiality considerations.

The employee and the union delegate will be notified of the time and place for the conduct of the disciplinary interview. During this investigation, the allegations, as known, will be put to the employee, including the seriousness of the allegations, and the employee will have the opportunity to respond to these allegations. The employee and/or the union delegate may request reasonable time to prepare their response to the allegations. As a guide, a disciplinary interview should take place no later than three (3) working days following the notification of the incident.

If the outcome of the investigation determines the behaviour warrants formal disciplinary action the delivery of such action is to be conducted by the Supervisor in consultation with the superintendent, or an appropriate Company officer. The employee's union delegate and / or the Site Union Delegate must be advised and afforded the opportunity to represent the employee unless the employee declines to be represented.

(b) Whilst each situation will be assessed on its own merits, as a general principle, If an employee has had cause to receive two formal written warnings within the space of twelve months and is found within twelve months of the first written warning to warranted a third written warning, the Company may terminate the employment of the employee. In the event of such a termination, the employee shall be paid wages that are due in lieu of notice.

(c) After a period of twelve months, without further formal written warnings, any active written warning shall be removed from the employees file.

(d) Where the employee challenges the action taken, the matter will be raised in line with all steps as outlined in the Dispute Settling Procedure in Clause 20 of this Agreement.

(e) Where the facts relating to allegations of misconduct are unclear or disputed by the employee and employee's union delegate or Site Union Delegate, the parties may agree to an extended period of investigation. In these circumstances, and depending upon the seriousness of the allegations, the employee may be stood down without loss of pay until the investigation is completed. As a guide, any extension will not exceed seven (7) calendar days.

(f) Disputed terminations of employment will be dealt with in accordance with the Fair Work Act. For the purposes of this cause, termination employment shall include terminations with or without notice.