Australian Workers' Union, The v INPEX Australia Pty Ltd
[2020] FWC 6006
•14 DECEMBER 2020
| [2020] FWC 6006 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236—Majority support determination
Australian Workers’ Union, The
v
INPEX Australia Pty Ltd
(B2020/286)
DEPUTY PRESIDENT BINET | PERTH, 14 DECEMBER 2020 |
Inpex Australia Pty Ltd, multi-location - interim decision.
[1] On 25 May 2020, the Australian Workers’ Union (AWU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act), for the Fair Work Commission (FWC) to make a majority support determination (Determination). The Determination would require Inpex Australia Pty Ltd (Inpex) to commence bargaining for a new enterprise agreement (Proposed Agreement).
[2] The Proposed Agreement would cover those employees of Inpex who are currently employed to perform work in the classifications of Operations Technicians (Trade and Processing) and Operations Technician (Services) under the Inpex Ichthys Operations Multi-Location Agreement 2014 1 (Employee Group).
[3] The Ichthys Operations Multi Location Agreement 2014 (Current Agreement) 2 was made on 12 September 2014, when a majority of the employees voted in favour of the Agreement.3 The Current Agreement was then approved on 3 October 2014 and commenced operation from 10 October 2014. The nominal expiry date of the Current Agreement was 2 October 2018. 4
[4] The scope of the Current Agreement was determined prior to the completion of the construction phase of the Ichthys Project. This was prior to the production and supply of any LNG to customers. 5 As a natural consequence of the evolution of the Ichthys Project from construction to production, and the unexpected intervention of the COVID-19 pandemic, there has been a fluctuation in the makeup of the Employee Group cohort since 2018.
[5] Since April 2018, there has been agitation among employees and by the AWU for bargaining to commence for a replacement agreement. Between 20 November 2018 and 13 August 2020, the AWU collected petitions from members of the Employee Group in favour of commencing bargaining (Petitions).
[6] Inpex does not wish to engage in enterprise bargaining and opposes the Application.
[7] The parties participated in a conference on 11 June 2020 (Conference) and agreed that the following issues should be determined in advance of the final determination of the Application:
a. The method by which the FWC should determine whether a majority of the Employee Group want to bargain.
b. Whether the Employees to be covered by the Proposed Agreement are fairly chosen.
[8] On 16 July 2020, and 17 July 2020, Inpex and the AWU respectively agreed that these two issues should be determined ‘on the papers’.
[9] A decision was issued in relation to these issues on 24 August 2020 in [2020] FWC 3843 (Interim Decision) which determined that:
a. The Employee Group is fairly chosen.
b. A ballot conducted by the Australian Electoral Commission (AEC) was the most appropriate way to determine whether a majority of the Employee Group wish to bargain.
[10] During the conference and in submissions filed in opposition to the Application, Inpex has sought unredacted access to the Petitions. This has been resisted by the AWU, primarily on the grounds of privacy and the implications for freedom of association. Inpex have reiterated that it does not dispute the reliability or integrity of the Petitions. Rather Inpex’s concerns appear to predominately relate to the contemporality of the Petitions and the circumstances in which the Petitions were collected.
[11] The Interim Decision sought to address the concerns of both parties by providing a mechanism to assess the contemporaneous views of the current workforce in a confidential manner, without fear of influence or recrimination by the Applicant or the Respondent.
[12] An order for the conduct of the AEC ballot was issued on 24 August 2020 in PR722190. After receiving written submissions from the parties, the Order in PR722190 was revoked and replaced with PR722012 on 27 August 2020.
[13] Inpex filed an appeal and sought a stay of the Interim Decision on 26 August 2020.
[14] The Interim Decision and related Orders (PR722190 and PR722012) were quashed on 7 October 2020 in [2020] FWCFB 5321 (Appeal Decision) and the Application remitted to me.
[15] In its decision, 6 the Full Bench inter alia held that:
a. At [14] “the Deputy President plainly had jurisdiction to order a ballot.”
b. At [19] that it doubted “that the Commission has power to require the AEC to conduct a ballot in connection with an application for a majority support determination.”
c. At [27] that “by proceeding to make orders for a ballot without inspecting the petitions, the Deputy President failed to have regard to a relevant consideration, namely the possibility that the petitions could be relied upon to establish majority support for bargaining”.
c. At [29] that it was not apparent to the Full Bench that a finding had been made whether the group of employees to be covered by the Proposed Agreement was geographically, operationally or organisationally distinct.
[16] In light of the decision of the Full Bench on 15 October 2020 the parties were issued with the following directions:
“In light of the Full Bench decision in INPEX Australia Pty Ltd v The Australian Workers’ Union [2020] FWCFB 5321 the Deputy President hereby directs:
a. The AWU to file with the FWC on a confidential basis a copy of the unredacted petitions referred to by Mr Duncalfe in the Application and a statutory declaration setting out the circumstances in which the petitions were obtained.
b. Inpex to file with the FWC on a confidential basis a list of employees employed in the relevant classifications as at the date the Application was filed (List of Employees).
c. The AWU to file with the FWC further submissions and evidence with respect to whether the group of employees who will be covered by the Proposed Agreement is fairly chosen.
The Deputy President will compare the petitions with the List of Employees and inform the parties whether the number of valid petitions is more than half the number of employees on the List of Employees. If a valid petition in favour of bargaining has been signed by a majority of employees on the List of Employees the Deputy President will then seek submissions from the parties with respect to appropriate directions for the determination of the Application, including the appropriate method for determining whether a majority of employees wish to bargain and whether it is reasonable in all the circumstances to make the determination.
The unredacted petitions, statutory declaration and List of Employees are to be provided to Chambers by 4pm, Thursday 22 October 2020.
The further submissions and evidence is to be provided to Chambers by 4pm, Thursday 22 October 2020 and should be accompanied by copies of all authorities upon which the AWU relies. Any witness statements should be signed and dated. If Inpex wish to provide materials in response they should do so by 4pm Thursday 29 October 2020 accompanied by copies of any authorities on which they rely.”
[17] In an email dated 19 October 2020, Inpex again pressed its request for unredacted copies of the Petitions and sought the opportunity to make submissions in relation to the following additional matters:
a. the time at which the majority should be determined;
b. that the FWC has conducted this matter in manner which is of an investigative or inquisitorial nature and unauthorised by the FW Act; and
c. that the question whether FWC can be satisfied that it is reasonable in all the circumstances to make the determination must be heard before the FWC determines whether a majority exists.
[18] On 21 October 2020. Inpex was granted leave to file submissions in relation to the issues set out in its email of 19 October 2020, and the parties were advised inter alia as follows:
“The parties should note that the Deputy President has not yet determined the appropriate method to determine whether a majority of employees wish to bargain and that (as foreshadowed in the email of 15 October 2020 below) the parties will be invited to file submissions and evidence in relation to the appropriate method. In the event that the Deputy President determines that the appropriate method is to conduct a ballot herself then the outcome of the ballot rather than the petitions will be relied upon to determine whether a majority of employees wish to bargain.
The Deputy President is of the view that it is appropriate to have before her the evidence of whether a majority of employees wish to bargain before she determines whether it is reasonable in all the circumstances to make a majority support determination and that she is entitled to do so by way of informing herself pursuant to section 590 of the FW Act. It is her view that the requirement to consider ALL the circumstances includes the size of the majority (if one exists).
If Inpex wish to file submissions to the contrary it should do so when invited to file submissions with respect to the appropriate method for determining whether a majority of employees wish to bargain. Directions for the filing of submissions with respect to the appropriate method for determining whether a majority of employees wish to bargain will not be issued until the directions in Chambers email of 15 October 2020 have been complied with.”
[19] On 22 October 2020, the AWU filed on a confidential basis copies of the Petitions. On the same date, the AWU filed with Chambers and served on Inpex a statutory declaration by Mr Heath (Heath Declaration), setting out the circumstances in which the Petitions were collected and blank copies of the petition form circulated to the Employee Group. A review of these materials reveals inter alia that:
a. the Petitions are in the form of one of either of the templates attached to the Heath Declaration;
b. the Petitions were individually signed;
c. the Petitions were dated;
d. the Petitions record the work site or address, position and mobile number of the signatory; and
e. the Petition notes that it is entered into freely and without pressure.
[20] On the same date, the AWU also filed further submissions with respect to the issue of whether the Employee Group is fairly chosen.
[21] Also on 22 October 2020, Inpex filed with Chambers on a confidential basis a list of the names of employees employed in the relevant classifications at the date the Application was filed (Employee List).
[22] On the same date, Inpex filed submissions in relation to the issues raised in their email of 19 October 2020.
[23] On 29 October 2020, the AWU filed submissions in response. Later that same day, Inpex filed further submissions in reply to the AWU submissions in response.
[24] I compared the Petitions with the Employee List and concluded that the number of petitions in favour of bargaining significantly exceeded half the number of employees on the Employee List. I am therefore satisfied that the AWU has standing to make the Application.
[25] The parties were informed accordingly on 9 November 2020.
[26] The parties filed further submissions on [insert date] and [insert date].
Key Statutory Provisions
[27] Section 236 of the FW Act provides that:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination ) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
[28] Section 237 of the FW Act provides that:
“237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
Are the employees to be covered by the Proposed Agreement fairly chosen?
[29] The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer, the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct from other employees of the employer. Having determined whether the group is geographically, operationally, and/or organisationally distinct, the FWC must take that into account and give it due weight having regard to all the other factors.7
[30] The Employee Group does not include all employees of Inpex. It is therefore necessary to consider whether the Employee Group is geographically, operationally and/or organisationally distinct from other employees of Inpex.
[31] The Proposed Agreement proposes to cover two classifications of employees. Operations Technicians (Trade and Processing) and Operations Technicians (Services). These are the same two classifications covered by the Current Agreement.
[32] The Employee Group are engaged to perform work at the following three locations:
a. Ichthys Explorer central processing facility (CPF);
b. Ichthys Venturer floating production, storage and offloading facility (FPSO); and
c. Ichthys LNG onshore processing facilities at Bladin Point, Northern Territory (Onshore LNG).
[33] Combined, these three facilities form the Ichthys LNG Project.
[34] Both the CPF and the FPSO are located offshore, approximately 220km off the coast of Western Australia. The CPF is moored 3.5km away from the FPSO. The Onshore LNG facility is located near Darwin in the Northern Territory and is connected to the CPF by a pipeline approximately 890km long. The CPF extracts gas and condensate from subsea wells. The extracted condensate is sent to the nearby FPSO and the gas is sent via pipeline to the Onshore LNG terminal for processing.
[35] The AWU submit that the Employees are geographically distinct from other employees of Inpex as they are engaged to perform work at three identifiable workplaces and only these workplaces. These workplaces are intrinsically connected and together form the Ichthys LNG Project. Two of these workplaces are located offshore and nearby to one another. The third location, whilst located onshore and a significant distance away from the other two, is connected to one of the other facilities by a pipeline by which it receives gas extracted by that facility to process.
[36] The AWU submit that the Employees are operationally distinct from the Inpex’s other employees. Operational distinctiveness refers to an industrial or productive activity. 8 The AWU submit that the Employees are engaged in the discrete industrial or productive activity of production, transmission and processing of liquefied natural gas – specifically in connection with the Ichthys LNG Project. The AWU submit that these employees are operationally distinct on this basis and all employees of Inpex engaged in this industrial activity are included in the group of employees in relation to whom the Application is made.
[37] The AWU submit that the Employees are organisationally distinct from other employees of Inpex. Organisational distinctiveness refers to the manner in which an employer has organised its enterprise in order to conduct its operations. 9 The AWU submit that the Employees are organisationally distinct from other employees of Inpex because they are employed in ‘blue collar’ or ‘hands on’ classifications, as opposed to ‘white collar’ or management positions.
[38] Inpex have not filed any evidence to suggest that the submissions of the AWU, with respect to the operational, organisational or geographic distinctiveness of the Employee Group, are untrue.
[39] Having reviewed the submissions of the parties, I am satisfied that the Employee Group is operationally, organisationally and geographically distinct.
[40] While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated, and given due weight, it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally, and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen.10
[41] The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory, and is made on some objective basis.11 In this regard, it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.12 Selection criteria based on employee characteristics, such as gender, would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives are also unlikely to be fair.13
[42] At the time the Current Agreement was approved, the Member approving the Current Agreement was satisfied that the group of employees covered by the Current Agreement was fairly chosen.
[43] Inpex has led evidence that the Current Agreement has previously applied to employees working overseas and that employees are not performing work in these locations at present. Inpex has not explained how this now makes the group of employees covered by the Current Agreement no longer geographically, operationally or organisationally distinct. In fact, arguably, if the Proposed Agreement will only apply to workers located in Australia, the group of employees proposed to be covered by the Proposed Agreement is, in fact, more geographically distinct.
[44] Inpex also asserts that the employees currently covered by the Current Agreement perform substantially different work to that performed by employees covered by the Current Agreement at the time it was made. They have not provided any evidence that this new work is no longer operationally, organisationally or geographically distinct, only that it is different.
[45] Inpex, on its own admission, is content for the Current Agreement to continue to apply, presumably because it is in its interests to do so.
[46] There is no evidence before me to suggest that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.
[47] Taking into account the geographic, organisational and operational distinctions, and giving those due weight having regard to all the other factors raised by the parties, I am satisfied that the Employee Group was fairly chosen.
By what method should the FWC determine whether a majority of employees want to bargain?
[48] Before it may make a majority support determination, the FWC must be satisfied that a majority of the employees who will be covered by the Agreement want to bargain.
[49] Sub section 237(3) of the FW Act provides that:
“(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.”
[50] In its decision in [2020] FWCFB 5321 at [27], the Full Bench expressed the view that:
“In our view, by proceeding to make orders for a ballot without inspecting the petitions, the Deputy President failed to have regard to a relevant consideration, namely the possibility that the petitions could be relied upon to establish majority support for bargaining, as the AWU contended. Without taking this step, it seems to us that the Deputy President could not have concluded that a ballot was an appropriate method for the purpose of s 237(3), because an assessment of what is an appropriate course depends on what the available alternatives are. If the question of whether there was majority support could have been determined by reference to material before the Commission, it is difficult to see how conducting a ballot could also have been an appropriate method, because it would have been unnecessary”
[51] I have since compared the Petitions with the Employee List and concluded that the number of Petitions in favour of bargaining significantly exceeds half the number of employees on the Employee List.
[52] I note that my earlier decision, the subject of the appeal, set out reasons why I reached the view that a ballot, rather than the Petitions, was an appropriate method of determining whether a majority of employees wished to commence bargaining in the particular circumstances of the Application.
[53] As foreshadowed in correspondence from my Chambers to the parties on 15 October 2020, the parties are now invited to file submissions as to the appropriate method to determine whether a majority of employees wish to bargain. Those submissions should address whether, in light of the Appeal Decision, the FWC is able to order an alternative method to determine whether a majority of employees wish to commence bargaining in circumstances where petitions are relied upon by an applicant in their initiating application or whether, in such circumstances, the FWC is bound to determine the matter solely on the basis of the petitions provided.
[54] I do note that at [14] of the Appeal Decision, the Full Bench stated that “the Deputy President plainly had jurisdiction to order a ballot.”
[55] Furthermore, section 590 of the FW Act permits the FWC to inform itself in relation to any matter before it in such manner as it considers appropriate including by:
a. requiring a person to provide information to the FWC;
b. conducting inquiries; and
c. undertaking research.
[56] In the event that that I find that it is open to me to order a ballot, and practicable for me to do so, then I would propose to conduct the ballot myself, in person, with the assistance of my Associate, based on the process used by Deputy President Gostenik in like matters.
Should Inpex be granted access to unredacted copies of the Petitions?
[57] During the conference and in submissions filed in opposition to the Application, Inpex has vigorously sought unredacted access to the Petitions. This has been strongly resisted by the AWU, primarily on the grounds of privacy and the implications for freedom of association. Inpex have reiterated that it does not dispute the reliability or integrity of the Petitions. Rather, Inpex’s concerns appear to predominately relate to the contemporality of the Petitions (given changes in the makeup of the Employee Group) and the circumstances in which the Petitions were collected.
[58] If the question of whether a majority of the Employee Group wish to bargain is to be determined by way of ballot, then I do not intend to grant Inpex access to the Petitions on the grounds that:
a. the Petitions clearly state the information contained in the Petitions will be provided only to the FWC;
b. it will be onerous and unduly delay the determination of the Application to require the AWU to seek the individual consent of each employee who signed a petition to release the information contained in the Petitions to Inpex;
c. the Petitions will not form the basis of assessing whether a majority of the Employee Group wish to bargain, and therefore a lack of access to this material can not amount to a denial of procedural fairness to Inpex;
d. Inpex have stated numerous times that it does not dispute the reliability or integrity of the Petitions; and
e. Inpex have not identified a use that the company would make of these materials beyond the task that the FWC has undertaken, namely comparing names on Petitions to the Employee List to establish that there is prima facie evidence that the Employee Group may wish to commence bargaining and that therefore an assessment of their views ought be undertaken.
[59] In the event that the parties agree that the Petitions are an appropriate method to determine whether a majority of the Employee Group wish to commence bargaining or it is not practicable to conduct a ballot, then I will determine whether a majority of the Employee Group wish to commence bargaining based on the evidence contained in the Petitions.
[60] If whether a majority of the Employee Group wish to commence bargaining is to be determined by way of the Petitions, then I propose to grant Inpex access to the Petitions redacted but for the date on which the Petition was signed.
[61] While asserting that it has some generic ‘right’ to be afforded unredacted access to the Petitions, Inpex have not identified a use that the company would make of these materials in these proceedings which can not be addressed some other way than by unredacted access to the Petitions. Nor have Inpex identified how a lack of access to the unredacted Petitions would materially affect the capacity of Inpex to present its case. Rather, Inpex have focussed on what it perceives as potential negative consequences of a grant of the Determination.
[62] Inpex have stated numerous times that it does not dispute the reliability or integrity of the Petitions. Even if Inpex were to dispute the reliability of the Petitions, this could be addressed by the provision of a list of employee names, their phone numbers, their worksite & classification and/or their signatures to the FWC, to enable a comparison to be conducted. These are all mechanisms commonly used in determining majority support applications.
[63] The uses which Inpex has identified, such as examining the circumstances in which the Petitions were obtained, is not answered by provision of the unredacted Petitions. It is answered by the Heath Declaration and its attachments, and the opportunity to cross examine Mr Heath at a hearing of the Application. If Inpex assert that employees were mislead or pressured into signing the Petitions, this is not self-evident from the unredacted Petitions, rather it would be appropriately addressed by witness evidence from such employees or witnesses to such purported conduct. I note Inpex have have not tendered any evidence to suggest that employees were mislead or pressured into signing the Petitions.
[64] Concerns that Inpex have articulated such as:
a. a lack of clarity around whether the Petitions to be relied upon by the AWU were sent to employees’ personal or work email addresses; and
b. the Petitions to be relied on by the AWU may be have been sent from the MUA or the Offshore Alliance rather than the AWU
are not resolved by access to the unredacted Petitions but rather from the cross examination of Mr Heath or other AWU officials.
[65] Concerns such as it being unclear what employees were told would be done with the information in the Petitions can be resolved by reference to the attachments to the Heath Declaration and/or by the cross examination of Mr Heath.
[66] Concerns that the Employee Group has changed in makeup will be dealt with by the FWC determining a ‘time’ in accordance with sub section 237(2)(a)(i).
[67] It is not necessary for Inpex to have access to the unredacted Petitions to ascertain what number of employees expressed a desire to commence bargaining. This information will be ascertained by the FWC and could be provided to the parties, though I note the comments of Deputy President Coleman in National Union of Workers v Lovisa (‘Lovisa’) that: 14
" ….there is nothing to suggest that the method need necessarily involve the identification of a precise number, let alone the identity of the individuals who form the majority.”
[68] Access to the dates on which the Petitions were completed allows Inpex to ventilate its case that the Petitions are not a contemporaneous reflection of the views of the Employee Group.
[69] Inpex’s asserted ‘right’ to access the unredacted copies of the Petitions must be balanced against the achievement of the objects of the FW Act.
[70] The objects of the FW Act relevantly include:
“s.3 Objects of the Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
…
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
…”
[71] Inpex has made it clear to its workforce on a number of occasions that it does not wish to bargain for a new agreement. It has chosen to adopt a vigorous insistence on access to individual employee responses. It would not be unreasonable for individual employees to be concerned that the exercise of their statutory right to express a preference for bargaining, if accessed by their employer, might be viewed adversely. In the current labour market and economic environment, such sensitivities are likely to be particularly pressing for employees. More so in light of the recent redundancies undertaken by Inpex of employees from the Employee Group.
[72] Disclosing employee preferences in such circumstances is likely to adversely impact on employees’ appetites to exercise their right (where majority support exists) to compel their employer to bargain, thereby negatively impacting the goal of realising the FW Act’s object of achieving productivity and fairness by way of enterprise level collective bargaining.
[73] As my colleague, Deputy President Coleman, concluded in Lovisa, 15 I have also concluded that in all circumstances I do not consider Inpex’s interests are adversely affected in any significant way by my use of the un-redacted material, and any adverse effect is outweighed by the interest of employee-petitioners in having their identities protected.
[74] I am not persuaded that the refusal to allow access to unredacted Petitions is inconsistent with section 577 of the FW Act.
[75] Section 577 of the FW Act provides that:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
[76] While sub section 577(c) provides that the FWC must perform its functions and exercises its powers in a manner that is open and transparent. The balance of section 577 requires the FWC to perform its functions and exercise its powers in a manner that is fair and just, quick, informal, avoids unnecessary technicalities, and promotes harmonious and cooperative workplace relations.
[77] Allowing employees to exercise their statutory right to express a desire to bargain or not to bargain in a confidential manner without fear of reprisal is fair and just and promotes harmonious and cooperative workplace relations. A ballot process conducted by the FWC is arguably likely to be perceived as more open and transparent than petitions collected by the union or a survey conducted by the employer.
[78] Evidence of the views of the majority of employees is not ‘adverse information and evidence’ against Inpex. It is a question of fact. A fact which the FWC is required to satisfy itself of. Concerns which Inpex might have about engaging in bargaining, such as an exposure to protected industrial action, can be fully and properly ventilated by Inpex in submissions dealing with whether it is reasonable in all the circumstances to make the majority support determination. It is not necessary for Inpex to impinge on the capacity of its employees to freely express their views about bargaining to fairly and properly put its case against the grant of a majority support determination.
The time at which the majority is to be determined
[79] Sub section 237(2)(a) of the FW Act states that:
"(2) The FWC must be satisfied that:
(a) a majority of employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who want to bargain; and…”
[80] Sub section 237(2)(a)(i) of the FW Act provides the FWC with a discretion to set the time at which the cohort of employees (from which majority support will be determined) are employed by the respondent employer. This power to set a time is confined solely to sub section 237(2)(a)(i).
[81] The Full Bench in Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers’ Union 16 (Kantfield Case) held that the FWC does not have a discretion to determine the date on which a majority wishes to bargain – the FWC must make this assessment at the date of the decision.
[82] In his decision in Lovisa, Deputy President Colman described the effect of the decision in the Kantfield Case in the following way:
“The point made here is that the Commission’s power to determine a time is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date; but according to the Full Bench, it does not have a discretion to determine the date on which a majority wishes to bargain. Rather, it must assess this question as at the date of the decision, using the most recently available information. Thus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain…The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain.”
[83] According to Inpex, since the filing of the Application a significant number of employees among the Employee Group have been made redundant and are no longer employed by Inpex. In addition, new employees have been hired to fill roles within the Employee Group.
[84] The AWU does not dispute that the redundancies have occurred. Additionally, the AWU does not contend that the desires of persons employed by Inpex, as at 25 May 2020, but are no longer employed at the date of a future decision should be taken into account by the FWC in determining whether a majority exists.
[85] In the event that the question of whether a majority of the Employee Group wish to bargain is to be determined by way of the Petitions, then the time for the purposes of subsection 237(2)(a)(i) shall be the date the Application was filed, 25 May 2020.
[86] In the event that the question of whether a majority of the Employee Group wish to bargain is to be determined by way of a ballot then the time for the purposes of subsection 237(2)(a)(i) shall be the date the ballot is conducted.
[87] The parties will be invited to make submissions and file evidence of any changes to the makeup of the Employee Group between the date determined for the purposes of subsection 237(2)(a)(i) and the time the decision is made with respect to the substantive Application, in order to ensure that a majority of the Employee Group as at the date of the Decision do wish to bargain.
Directions for the Disposition of the Application
[88] As foreshadowed in the email of 9 November 2020, the parties will be issued with directions for the disposition of the Application, including the appropriate method for determining whether a majority of employees wish to bargain and whether it is reasonable in all the circumstances to make a determination, and the Application will be listed for hearing.
[89] Before making a majority support determination, the FWC must be satisfied inter alia that a majority of employees want to bargain, and it is reasonable in all the circumstances to make the determination. The size of the majority (if one exists) is a relevant factor in determining whether it is reasonable in all the circumstances to make the determination. For example, strong support for bargaining might be expected to weigh in favour of the determination being reasonable.
[90] It is therefore appropriate to have the evidence of whether a majority of the Employee Group wish to bargain before the FWC and available to parties (be it by way of redacted petition or ballot outcome) before the parties make submissions, and before the FWC makes a determination as to whether it is reasonable in all the circumstance to make a majority support determination.
[91] Accordingly, the Directions will reflect this.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724401>
1 [2014] FWCA 6998; AE410494.
2 Ibid.
3 Witness Statement of Garry Smith, [2] (‘Smith Statement’).
4 Ibid [22].
5 Ibid [6].
6 [2020] FWCFB 5321.
7Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd[2014] FWC 7123 citing Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] 219 IR 139 (‘Cimeco’); Cotton on Group Services Pty Ltd v National Union of Workers[2014] FWCFB 8899.
8 QGC v The Australian Workers’ Union [2017] FWCFB 1165, [44].
9 Ibid.
10 Cimeco, [20]; Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826, [26] (‘Aerocare’).
11 Cimeco [21], Aerocare, [26].
12 Aerocare, [26].
13 Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited[2014] FWC 7123 citing Cimeco [21].
14 National Union of Workers v Lovisa [2019] FWC 2885 at [61]
15 National Union of Workers v Lovisa[2019] FWC 2885, [58]
16 [2016] FWCFB 8372
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