Australian Workers' Union, The v Legeneering (Aust) Pty Ltd

[2021] FWC 2389

[2021] FWC 2389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Legeneering (Aust) Pty Ltd
(B2021/295)

DEPUTY PRESIDENT BINET PERTH, 30 APRIL 2021

Proposed protected action ballot of employees of Legeneering (Aust) Pty Ltd.

[1] The Australian Workers’ Union (AWU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to s 437 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Application was supported by statutory declarations from Mr Douglas Charles Heath, Offshore Alliance Organiser for the AWU (Mr Heath).

[3] The AWU seek an order for a ballot to be conducted of employees of Legeneering (Aust) Pty Ltd (Legeneering) who engaged to work offshore under the Woodside FPSO Maintenance Services Contract and will be covered by a proposed enterprise agreement(Proposed Agreement) who are represented by the AWU, or who are bargaining representatives for themselves but are members of the AWU (Employees).

[4] The Application was the listed for a Conference on 30 April 2021 following email advice from Legeneering that the Application was opposed.

[5] Legeneering sought permission to be represented by a lawyer at the Conference. The granting of leave to Legeneering was not opposed by the AWU.

[6] Having considered the submissions of the AWU and Legeneering, leave was granted to Legeneering to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[7] In accordance with directions issued to the parties on 28 April 2021 the parties filed outlines of submission, copies of the authorities on which they relied and substantial documentary and written evidence in advance of the Conference.

Background

[8] Legeneering provides services in the oil and gas industry and employs a range of employees in providing those services. Some of Legeneering’s employees work on offshore facilities in relation to maintenance services provided by Legeneering to its clients (Facilities).¹

[9] Legeneering’s current offshore work includes work in respect of Facilities operated by Woodside Energy Ltd (Woodside) in particular the Okha FPSO and the Ngujima Yin FPSO (Facilities). Legeneering employs approximately 120 employees in respect of the maintenance services provided by Legeneering on Woodside Facilities.²

[10] The Facilities are operating offshore oil and gas Facilities located in waters in oil and gas fields off Western Australian. The Ngujima Yin FPSO is around 50kms north west of Exmouth and the Okha FPSO is around 165kms north west of Karratha. ³

[11] The normal operations of the Facilities involve hydrocarbons being extracted from wells on the seabed, flowing to the facility via flowlines, being processed and stored on the facility and then exported via tankers that come alongside the facility, or in the case of the Okha FPSO, also via pipelines. Currently, the Facilities receive new hydrocarbons or process hydrocarbons and there are hydrocarbons stored on each facility. ⁴

[12] The Facilities are subject to a safety case, required under the Offshore and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act) and marine regulations required under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) (National Law Act). ⁵

[13] The Facilities are subject to inspections from NOPSEMA and AMSA Class inspection providers. NOPSEMA, AMSA or Class inspectors may issue directions to the operator; Legeneering’s client, following an inspection, relating to actions required within specified timeframes to improve safety. It is an offence under the OPGGS Act and the National Law Act to breach a direction. ⁶

[14] The Employees perform maintenance work on the Facilities, including maintenance work that is part of the Safety Critical Activities (SCA). The maintenance work that involves SCA’s can be identified within the Operator’s ERP System (SAP), by work orders that are flagged as Technical Integrity (TI), or SB Regulatory Requirement (RR) and form part of the License to Operate (LTO), in a way that differentiates the work from other activities that are not safety critical. Legeneering’s client is responsible for preparing work orders. ⁷

[15] The Employees may also perform maintenance work required under orders or directions issued by NOPSEMA and is identified in SAP as LTO. The Employees may also perform maintenance work in relation to the life critical systems on the Facilities as well as undertaking work on an urgent basis when an emergency arises. ⁸

[16] Almost all work on the Facilities is scheduled and is sequential, in that it is only possible to safely perform a particular task, if another task has been performed earlier, and within a particular timeframe. Any delays in work will usually have ‘knock-on’ effects and may create a safety issue. Safety critical work is usually ‘urgent’, even though the compliance date specified by the regulator has not passed, the relevant life critical system may still be sufficiently operational, or the relevant emergency event may not actually be occurring. ⁹

[17] Given the remote locations, access to the Facilities for personnel is by helicopter. Generally, helicopter flight bookings need to be made two weeks in advance. There are limits on the number of people and supplies that can be transported to and from a facility by helicopter. There is also limited accommodation on each facility. ¹⁰

[18] On 2 August 2020, the AWU was granted a Majority Support Determination.¹¹

[19] Legeneering issued a Notice of Employee Representational Rights (NERR) to the Employees on 9 September 2020. ¹²

[20] On 23 October the AWU provided a log of claims to Legeneering. ¹³

[21] On 4 November 2020 the parties held their first bargaining meeting. ¹⁴

[22] In late December 2020 Legeneering put a proposed agreement to the ballot but it was not approved by a majority of the Employees. ¹⁵

[23] Bargaining meetings recommenced in February 2021.While the parties have agreed to a number of terms there are a number of claims yet to be resolved.¹⁶

[24] The parties are currently scheduling further bargaining meetings. ¹⁷

Consideration

[25] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[26] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[27] It is not in dispute that the AWU has standing to make the Application in its capacity as a bargaining representative. 18 The notification time in relation to the Proposed Agreement is 27 August 2020.19 The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.20

[28] The Application specifies the group of employees who are to be balloted. 21

[29] The AWU have proposed that CiVS conduct the ballot. The parties sought that the date by which the ballot should close would be four (4) working days from the Commencement date specified in paragraph 6.2.1 of the Protected Action Ballot Order (Order). 22

[30] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. 23

[31] The Application was accompanied by documents and other information prescribed by the Fair Work Regulations 2009 (Cth).

[32] I am therefore satisfied that the Application has been made in accordance with s 437 of the FW Act.

[33] The FWC may only make the order sought if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[34] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[35] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union  24 (Esso Case), the Full Bench stated:

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad”  25 (references omitted)

[36] In Total Marine Services Pty Ltd v Maritime Union of Australia,  26 a Full Bench of Fair Work Australia relevantly stated:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

[37] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[38] The AWU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.

[39] In all of the circumstances, I am satisfied that the AWU have been, and is, genuinely trying to reach an agreement with Legeneering.

[40] Pursuant to s 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order.

[41] Legeneering submitted that, if an order is to be made, the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.

[42] Section 443(5) of the FW Act provides that:

“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”

[43] This requires consideration of: 27

a. whether the circumstances are ‘exceptional’;

b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and

c. what the period of notice should be, up to a maximum of seven days.

[44] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation that is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”. 28

[45] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.

[46] Having concluded that particular circumstances are exceptional, and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. 29

[47] Legeneering provided evidence in support of its assertion that exceptional circumstances currently exist, which justify a requirement for a longer notice period.

[48] The evidence is that strict safety requirements apply in relation to all aspects of the Facilities, including the training and qualifications of personnel working on the Facilities. Given their offshore locations, access to the Facilities for personnel is by helicopter, out of Karratha and Exmouth, and there are limits on the number of people and supplies that can be transported to and from the Facilities by helicopter. There is limited accommodation on the Facilities. These limitations mean that that it generally takes 5 to 7 days to organise the mobilisation of a suitable number of additional workers to the Facilities, if additional labour is required.

[49] Since the start of the COVID-19 pandemic, there have been additional restrictions that have impacted on operations on the Facilities including isolation requirements imposed by state governments for workers needing to travel across state boundaries, and in some cases within areas of Western Australia, in order to mobilise to or demobilise from the Facilities. In response to the COVID-19 pandemic the POB on the Facilities has been reduced. The COVID-19 pandemic has also impacted on the availability of labour more generally. Furthermore, there has been a reduction in the number of commercial flights available from Perth to Karratha and Exmouth. The combination of these factors means that currently, it is even more difficult to mobilise a suitable number of additional workers to the Facilities if required.

[50] Whilst each case needs to be considered on its facts the FWC has previously recognised that there are features of the offshore environment which are exceptional as compared to other Australian workplaces which have warranted an extension of the notice period. This has occurred even, as in this case, where the ballot questions include safety related exclusions from the types of industrial action which might be taken. 30

[51] I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me, I have decided to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to seven working days is appropriate in all the circumstances.

[52] Having been satisfied that the requirements of s 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted and a protected action ballot order has been issued. 31

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729080>

1 Witness Statement of Mr Lee Gallagher dated 29 April 2021.

2 Ibid.

3 Ibid.

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid.

8 Ibid.

9 Ibid.

10 Ibid.

11 Witness Statement of Mr Douglas Charles Heath filed on 29 April 2021.

12 Ibid.

13 Ibid.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

 18F34B – Declaration in support of an application for protected action ballot order dated 27 April 2021 – Douglas Charles Heath, 2.1.

 19   Ibid 1.6.

 20   Ibid 1.3.

 21   Form F34 – Application for a protected action ballot order dated 27 April 2021, 2.1 (‘F34’).

 22   Ibid 2.3.

 23   Ibid 2.2.

 24   [2015] FWCFB 210.

 25 Ibid [57].

 26   [2009] FWAFB 368.

 27   National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [23] - [25].

 28   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99, [7] - [8].

 29   National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [25].

 30   See for example AWU v Applus Pty Ltd [2020] PR725641 and AWMU and AWU v UGL Operations and Maintenance Pty Ltd [2021] PR728659.

 31   PR729081.