Australian Workers' Union, The v Cooper Energy Limited T/A Cooper Energy Summary

[2023] FWC 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

Cooper Energy Limited T/A Cooper Energy

(B2023/34)

COMMISSIONER JOHNS

MELBOURNE, 19 JANUARY 2023

Proposed protected action ballot of employees of Cooper Energy Limited

On 17 January 2023, the Australian Workers’ Union (AWU) made an application for a Protected Action Ballot Order (PABO) in relation to a group of employees of Cooper Energy Limited T/A Cooper Energy (Employer).

The Employer was served with the application upon lodgment with the Fair Work Commission (Commission).

The employees to be balloted are presently covered by the Minerva Operations – Enterprise Agreement 2018[1] (Agreement). The Agreement has a nominal expiry date of 10 February 2023.

The Application was made pursuant to s.437 of the Fair Work Act 2009 (Act). As is the usual practice upon the Application being lodged the Employer was invited to inform the Commission about its attitude to the Applications.

On 17 January 2023 Ashley Haren, General Manager People and Remuneration for the Employer advised the Commission that the Employer objected to the application on the grounds that the facility that will be affected by proposed Order is a gas processing plant and consequently a major hazard facility. The Employer sought to amend the draft Order to incorporate undertakings regarding minimum manning levels during any period of protected industrial action to ensure the safe operation of the planta and undertakings regarding emergency response arrangements in the event that some employees will remain available to attend the plant to respond to an emergency. The Employer also sought a 5-day notice period pursuant to s.443(5) of the Act.

On 18 January 2023 the AWU confirmed by email its willingness to ensure a safety crew of two people, which represents the minimum required level under site policies, to both monitor safety on site and act solely on safety issues. The AWU did not agree to provide the undertakings in the form suggested.

On the same day the matter was allocated to me. I listed the matter for a hearing at 1:00 pm on 18 January 2023.

At the hearing Mr Simon Miller, Industrial Officer for the AWU, gave an undertaking on transcript to the Commission that while the two people are present on site, they will be in the control room to monitor the safe operation of the plant while there is pressurised gas within the plant. The Employer confirmed that the two employees would be paid their full ordinary pay. The Employer conceded it had no statutory basis for objecting to the application. It did not assert that the AWU was not bargaining in good faith.

At the hearing the Employer pressed its request for a 5-day notice period under s.443(5) of the Act. It submitted that it required sufficient time to undertake risk assessments and reschedule critical maintenance when proposed industrial action was notified. It submitted that his was an exceptional circumstance justifying the period of written notice being longer than 3 working days. The AWU objected to the request and submit that the minimum notice period as prescribed by the Act gives the Applicant the maximum capacity to enforce its claims and reach an agreement.

Noting that the AWU has already undertaken to the Commission that at least 2 people will remain on site during industrial action, the request for an additional 2 days-notice, while obviously a ‘nice to have’, does not constitute an exceptional circumstance within the meaning of the FW Act. I reject the request for an additional 2 days-notice.

The Commission, as presently constituted, is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, the PABOs must be made.

An order [PR749766] will be issued concurrently with this Decision.

COMMISSIONER

Appearances:

Mr S Miller for the Applicant.
Ms L O’Brien For the Respondent.

Hearing details:

18 January 2023, Melbourne via telephone.

[1] AE501585.

Printed by authority of the Commonwealth Government Printer

The Australian Workers’ Union (AWU) applied to the Fair Work Commission (FWC) for a Protected Action Ballot Order (PABO) for a group of employees of Cooper Energy Limited T/A Cooper Energy (Employer). The application was made under section 437 of the Fair Work Act 2009. The employer objected to the application on the grounds that the facility that will be affected by the proposed order is a gas processing plant and a major hazard facility. The employer sought to amend the draft order to include undertakings regarding minimum manning levels during any period of protected industrial action to ensure the safe operation of the plant and undertakings regarding emergency response arrangements in the event that some employees will remain available to attend the plant to respond to an emergency. The employer also sought a 5-day notice period under section 443(5) of the Act. The AWU confirmed that they would ensure a safety crew of two people, which represents the minimum required level under site policies, to both monitor safety on site and act solely on safety issues.

The legal issues before the Commission were whether the requirements of section 443(1) of the Fair Work Act 2009 had been met, and whether the employer's request for a 5-day notice period was justified. The Commission noted that the employer had conceded that it had no statutory basis for objecting to the application. The employer also did not assert that the AWU was not bargaining in good faith. The Commission rejected the employer's request for an additional 2 days-notice, finding that it did not constitute an exceptional circumstance within the meaning of the Fair Work Act 2009.

The Fair Work Commission made an order that the PABOs must be made. The employer's request for a 5-day notice period was rejected. The Commission found that the AWU had undertaken to the Commission that at least 2 people will remain on site during industrial action, and that the request for an additional 2 days-notice did not constitute an exceptional circumstance within the meaning of the Fair Work Act 2009. The Commission was satisfied that the requirements of subsection 443(1) of the Act had been met. An order was issued concurrently with the decision.

Australian Workers' Union, The v Cooper Energy Limited T/A Cooper Energy

CaseChat Overview and Summary

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