Australian Workers' Union, The v PHI International Australia Pty Ltd
[2022] FWC 1003
•18 July 2022
| [2022] FWC 1003 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Australian Workers' Union, The
v
PHI International Australia Pty Ltd
(B2022/7)
| DEPUTY PRESIDENT BINET | PERTH, 18 July 2022 |
PHI International Australia Pty Ltd
On 11 January 2022 the Australian Workers Union (AWU) filed an application (Application) pursuant to section 229 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC).
The Application sought a bargaining order against PHI International Australia Pty Ltd (PHI) in relation to the negotiation of a proposed new enterprise agreement called the PHI International Kimberley Ground Staff Enterprise Agreement 2021 (Proposed Agreement).
The Proposed Agreement is proposed to cover employees that perform engineering and ground staff activities from PHI’s Broome Base (Employees).
On 8 July 2021 PHI issued a notice of employee representational rights (NEER) in order to commence bargaining for the Proposed Agreement.
The AWU sought to be recognised as a bargaining representative for its members engaged in all classifications covered by the Proposed Agreement. Initially PHI refused to recognise the AWU as a bargaining representative in relation to the Proposed Agreement. However, since 20 October 2021 PHI has recognised the AWU as a bargaining representative of Employees engaged as Aircraft Maintenance Engineers (AME) and Licensed Aircraft Maintenance Engineers (LAME).[1]
Since October 2021 PHI has been engaged in negotiations for the Proposed Agreement with employee bargaining representatives (EBRs), the AWU and the Australian Licenced Aircraft Engineers Association (ALAEA).[2]
The AWU seek an order that it is recognised as a bargaining representative of the ramp staff (Ramp Staff) proposed to be covered by the Proposed Agreement (Order).
I conducted a conference on 31 January 2022 in an endeavour to resolve the dispute by mediation and/or conciliation however the matter in dispute remained unresolved.
The Application was listed for a Hearing in Perth on 4 May 2022 (Hearing).
Directions for the filing of materials in advance of the Hearing were issued to the parties on 2 February 2022 and subsequently amended on 23 February 2022 (Directions).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.
PHI sought permission to be represented at the Hearing by a lawyer. Having considered the submissions of the parties, I exercised my discretion to grant PHI leave to be represented by a lawyer because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
At the Hearing, PHI was represented by Mr Stuart Wood AM QC (Mr Wood AM QC) of Counsel. At the Hearing the AWU were represented by Mr Zac Duncalfe, a solicitor employed by the AWU. At the Hearing ALEAA were represented by Mr Glynn Sowter.
Evidence
The AWU filed a witness statement by Mr Douglas Heath an Offshore Alliance Organiser employed by the AWU (Mr Heath) setting out his evidence in chief. Mr Heath gave further oral evidence at the Hearing and was cross examined by Mr Wood AM QC.
PHI filed a witness statement by Mr Timothy David Harley (Mr Hartley). Mr Hartley is the General Manager of PHI. Mr Hartley gave further oral evidence at the Hearing and was cross examined by Mr Duncalfe.
Final written submissions were filed by the AWU on 19 May 2022 and PHI on 25 May 2022.
In reaching my decision I have considered all the submissions made, and the evidence tendered by, the parties even if not expressly referred to in these reasons for decision.
Background
PHI Australia is part of PHI Aviation, a wholly owned subsidiary of PHI Group Incorporated.[3]
PHI employs approximately 200 employees, made up of pilots, LAMEs, AMEs, Ramp Staff, SAR / medevac staff and management staff. It has the following three operational bases:[4]
a.Broome Base;
b.Karratha Base; and
c.Port Hedland Base.
From its Port Hedland Base, PHI provides SAR, medevac and oil and gas transport services to Santos.[5] From its Karratha Base, PHI Australia provides marine pilot transport (MPT) services to Rio Tinto in relation to its mining exploration and export of iron ore. From the Broome Base PHI provides SAR, medivac and oil and gas transport services.[6]
Expressed as percentages of flight hours and number of flights respectively, PHI performed SAR, medivac, oil and gas transport and MPT services across its bases between May 2021 and April 2022 as follows:
a.SAR/medevac: 8.6% of flight hours and 5.1% of flights;
b.oil and gas transport: 58.3% of flight hours and 24.0% of flights; and
c.MPT: 33.2% of flight hours and 70.9% of flights.[7]
It is relevant to note that these figures include MPT services provided from a base in Mackay which ceased operation on 1 January 2022. [8]
The Proposed Agreement covers employees of PHI at a single worksite which is located at the Broome Heliport on Gus Winckel Road, Broome, WA (Broome Base).[9]
PHI has 98 employees at its Broome Base, made up of:[10]
a.helicopter pilots;
b.SAR technical crew;
c.management and administrative staff;
d.LAMEs and AMEs; and
e.Ramp Staff.
The LAMEs, AMEs and Ramp Staff are currently covered by the “HNZ Broome Ground Enterprise Agreement 2017” (HNZ Agreement) PHI acquired HNZ Australia Pty Ltd in December 2017). The nominal expiry date of the Agreement was 21 December 2021.[11]
The Broome Base is PHIs largest base and provides engineering and ground services for helicopters that provide flight services to clients both off and onshore.
The two major clients of the Broome Base are INPEX Australia Pty Ltd (INPEX) and Shell Australia FLNG Pty Ltd (Shell). Both INPEX and Shell operate in the hydrocarbons industry.[12]
The flight service most commonly provided from the Broome Base is transport services to INPEX’s offshore facilities located approximately 250 nautical miles from the Broome Base. Travel to and from the offshore facilities takes approximately one hour and 50 minutes in either a Sikorsky S92A or a Leonardo AW139. PHI Australia conducts up to five flights per day between its Broome Base and the offshore facilities. On each flight, approximately 12 to 13 passengers are transferred. Those passengers include INPEX workers, but also third party contractors who provide support services to INPEX. Typically each flight will also have a freight component.[13]
PHI Australia also provides some limited onshore transport services, including the delivery of goods to flood affected areas and of medical supplies (COVID-19 vaccines) to remote indigenous communities.[14]
From the Broome Base PHI also provides offshore SAR/medivac services to INPEX and Shell. PHI also provides those services from the Broome Base to the Australian Maritime Safety Authority (AMSA) and on referral from AMSA to the:[15]
a.Western Australian Police Force (WAPOL);
b.Government of Western Australia, WA Country Health Service (WACHS); and
c.Government of Western Australia, Department of Health (WA Health).
Over the past 4 years, PHI Australia has performed 114 offshore SAR/medevac operations from its Broome Base including five at the request of AMSA. Over the past two years, PHI has also been involved in the medivac of COVID-19 and suspected COVID-19 cases of seafarers on bulk carriers and cruise ships. PHI also provides onshore SAR/medivac services for AMSA. [16] In the 18 months prior to 30 April 2022 less than 30% of SAR and medevac services provided from the Broome Base were performed at the request of AMSA.[17]
The services performed by the Ramp Staff at the Broome Base include: the servicing of life jackets, the maintenance of controlled air submersible systems (scuba tanks), washing aircraft, checking forklifts for fuel and oil, cleaning the Broome Base and hangar and refuelling helicopters.[18]
On 8 July 2021 PHI issued the NERR in relation to the Proposed Agreement to Employees including the Ramp Staff.[19]
The parties exchanged a series of correspondence between 9 August 2021 and 20 October 2021, in which:[20]
a.the AWU sought to demonstrate its constitutional coverage of the Ramp Staff; and
b.PHI confirmed that it would not recognise the AWU as a bargaining representative of the Ramp Staff.
On 17 December 2021 the AWU gave notice to PHI that it believed PHI were breaching the good faith bargaining obligations set out in section 228 of the FW Act in failing to recognise the AWU as a bargaining representative of the Ramp Staff and repeatedly cancelling scheduled bargaining meetings.[21]
Consideration
In order to be eligible to apply for a bargaining order the AWU must be a bargaining representative of an employee who will be covered by the Proposed Agreement. Sub section 176(1)(b) and (c) of the FW Act set out who may be a bargaining representative of an employee who will be covered by a proposed agreement.
Sub section 176(1)(c) of the FW Act provides that an employee who will be covered by an agreement may appoint a person as his or her bargaining representative provided that the person does so in writing.
Sub section 176(1)(b) of the FW Act sets out the circumstances in which an employee organisation will be the default bargaining representative of an employee who will be covered by an agreement:
“(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i)the employee is a member of the organisation; and
(ii)in the case where the agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2);”
The Proposed Agreement is not a multi-enterprise agreement.
Sub section 176(3) of the FW Act provides that neither an employee organisation nor an official of an employee organisation (whether acting in that capacity or otherwise) can be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
The AWU will be a default bargaining representative of the Ramp Staff if the AWU is entitled to represent the industrial interests of the Ramp Staff. There is no evidence before me to suggest that all the Ramp Staff have revoked the status of the AWU as their default bargaining representative or that the AWU has no members among the Ramp Staff.
Does the AWU have constitutional coverage of the ROV Employees?
An employee organisation such as the AWU cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work which will be performed under a proposed enterprise agreement.[22]
Whether or not the AWU is entitled to represent the industrial interests of the Ramp Staff turns on the proper construction of Rule 5, Section 1, Part A(1) of the Rules of The Australian Workers’ Union (AWU Rules).
Rule 5, Section 1, Part A(1) of the AWU Rules provides that the AWU has coverage of:
“Every bona fide worker, male or female, engaged in mental or manual labour in or in connection with the following industries or callings, namely … the construction of pipelines used in or in connection with the extraction and transmission of hydrocarbons, solids, slurries and similar substances … the search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons…”
The AWU submit that PHI is correctly characterised as operating in the hydrocarbons industry or operating its business in connection with the hydrocarbons industry.
In support of this submission the AWU point to PHI’s website located at The landing page, ‘about us’ page, the ‘what we do’ page and a ‘news’ page are all dominated by images and references to the hydrocarbons industry and no other industry.[23]
On the landing page of the website, a full-page looped video plays that shows PHI helicopters landing on two different offshore hydrocarbons facilities – the Noble Don Taylor, a drill ship and the BP Thunder Horse, a semi-submersible oil platform – with the words ‘world leaders’ and ‘trusted partners’ in the centre of the video. The video does not display any other facilities or locations.[24]
On the ‘About Us’ page, the image at the top of the page is of a PHI helicopter on the landing pad of the INPEX Ichthys Venturer, a floating production, storage and offloading facility moored in the Browse Basin. The Venturer processes, stabilises, stores and offloads hydrocarbons delivered from the INPEX Ichthys Explorer.[25]
The following statement is found on the ‘About Us’ page:[26]
“In 2017, PHI Inc acquired HNZ New Zealand Ltd (HNZ) and formed PHI International to serve customers in the international oil and gas industry.”
On the ‘What We Do’ page, the image at the top of the page is of a PHI helicopter on the landing pad of what appears to be an offshore hydrocarbons facility. The helicopter in the image bears the marking ‘VH-IPX’, which according to Mr Heath is a helicopter currently serviced by the Employees for use in the INPEX contract.[27]
The following statements are found on the ‘What We Do’ page:[28]
“Providing offshore helicopter services for many of the world’s largest oil and gas companies since 1968, our purpose is to ensure that people working in remote, offshore and hazardous environments can get there and home again safely.”
“PHI International exceeds the demands of an industry driven by precision and technical expertise. We are committed to best practice and meet the International Association of Oil and Gas Producers Standards.”
There is no mention on the page about any other industry or association standards being met by PHI.[29]
In a story published on the PHI website titled, ‘HNZ Rebrands to PHI International’,
the following statement is found:[30]
“Nelson-based helicopter operator HNZ New Zealand has rebranded to PHI International following its acquisition by the United States helicopter company, PHI Inc. The company, which provides helicopter transportation, search and rescue and marine pilot transfer services to international customers in offshore oil and gas exploration and production, will continue to be based in Nelson under its new name.”
Both parties agree that the two major clients of PHI serviced by the Broome Base are INPEX and Shell. Both INPEX and Shell are undisputedly engaged in “…the search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons”.
According to the AWU the work performed by the Employees that is unrelated to the oil and gas sector generally is limited to sporadic requests from AMSA for PHI to perform one-off search and rescue jobs. [31]
The AWU submit that not only is the majority of the work performed by the Employees for INPEX and Shell but that this work in the hydrocarbon industry is critical to the operation of that industry. The AWU point out that an offshore hydrocarbons project cannot proceed without a safety case and that a safety case must include a detailed explanation of safety measures and emergency preparedness. The AWU says that the services provided by PHI are therefore critical to INPEX and Shell meeting the relevant safety case approved by NOPSEMA.
The AWU also points out that the transport services provided by PHI are critical for the mobilisation and demobilisation of workers to the offshore facilities.
The AWU point to letters of support provided by PHI to Employees seeking to enter Western Australia during the COVID pandemic when border restrictions applied. The letters of support state:[32]
“[employee] performs mission and time critical, scheduled and breakdown maintenance services, along with daily aircraft serviceability checks for our fleet of large transport helicopters which are fundamental to the continued safe operation of the Inpex and Shell Oil and Gas platforms and WA offshore oil and gas infrastructure off the NW Shelf.”
“These helicopter services are essential to provide offshore transport, emergency de-manning, cyclone evacuation, medivac and search and rescue services for oil and gas workers to and from the platforms, ships and work vessels.”
“Under current requirements, Inpex and Shell cannot operate or fly workers to/from offshore installations in Australia without the emergency, medivac helicopter services being provided and standing by.”
The AWU also point to submissions filed with the FWC in other matters including Protected Action Ballot Orders which reference the critical nature of the services PHI provide to the oil and gas industry.[33]
PHI denies that it is in the industry of searching and/or drilling for hydrocarbons or the production, processing and transmission of hydrocarbons. While PHI concedes that the two major clients serviced by PHI from the Broome Base are INPEX and Shell it submits that it does not take on the industrial character of those clients or any of its other clients.
PHI submits that it is in fact in the aviation industry and the “substantial character” of its business is aviation.
PHI submit that its supply of services to businesses in the oil and gas industry is not sufficient of itself, to render its business as one that is in or “in connection with” the industries of searching and/or drilling for hydrocarbons or the production, processing and transmission of hydrocarbons, even if it services are essential to the operation of businesses in those industries.
PHI submit that it is merely a service provider to companies who are in the industries of searching and and/or drilling for hydrocarbons or the production, processing and transmission of hydrocarbons.
The words of an eligibility rule must be given a “wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction”.[34]
The words “or in connection with” are words of expansion and allow a finding of eligibility even if the employees in question are not “in” the relevant industry.[35]
Rule 5, Section 1, Part A(1) of the AWU Rules is an industry rule and the discrimen of eligibility under such a rule is the industry of the employer. Hence the question is whether the trade or business of PHI is in, or in connection with, the industries of searching and/or drilling for hydrocarbons or the production, processing and transmission of hydrocarbons. This is a question of fact and the answer is determined by the substantial character of the activities in which PHI is engaged.[36]
The word ‘industry’ is not a precise term. One industry may overlap another. An employer may conduct a business in more than one industry. The substantial character of a business may be in or in connection with more than one industry. It is not necessary to decide which is predominant.[37]
See for example the decision of the Full Bench in Harnischfeger of Australia Pty Ltd v CFMEU[38] which held in relation to the substantial character of an employer’s activities that:
“…it is not necessary to establish that those activities are the predominant activities performed by [the employer] or that a majority of [the employer’s] employees are engaged in such activities. Nor does it need to be established that these activities are performed as a discrete business within [the employer’s] overall operations. It is only necessary that the activities be substantial.”
See also the decision of Gibb J in the High Court decision of R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 (Argyle Diamond Case) at [16] where he noted that:
“The fact that the employees engaged to construct and work the mine at the Argyle Diamond Mine Project are quite clearly engaged in labour in or in connection with mining does not necessarily mean that they are not engaged in or in connection with reducing and refining of ores.”
In the same case Wilson J at [20] made it clear that the test is not as framed by PHI in its submissions (that the services provided by PHI must be integral to the search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons) rather the connection need only be sufficient.
PHI provides engineering and ground services for helicopters that provide flight services to clients. These services include worker transport, freight, medevac and search and rescue. That the substantial character of PHI’s business is in connection with the hydro carbons industry is reflected in:
a.the content of PHI’s own website;
b.statements made by PHI in official correspondence for example with the state government and in materials filed FWC; and
c.the evidence that nearly 70% of all flight hours across all its bases are related to the hyrdro carbons industry in combination with the evidence that the amount of flying hours directly rates to the amount of maintenance required to be performed.[39]
The fact that PHI might from time to time perform work for AMSA or other clients in other industries from Broome Base or from other bases does not mean that the substantial character of PHIs business is not in connection with the hydro carbon industry.
The Broome Base is the largest base. It is clear from the evidence that the Employees to be covered by the Proposed Agreement perform their work almost exclusively for INPEX and Shell. PHI has endeavoured to dilute the evidence of extent to which the services it provides to the hydro carbon industry form the substantial character of its business operations by reference to a base from which it no longer operates and to data in relation to other services which individually form comparatively much less significant part of their operations.
It is true that the mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business.[40]
However, I do not accept that PHI is correctly characterised as a service provider in the same way as a cleaning or catering company is to clients in the mining industry. PHIs role is integral to the hydrocarbon industry. Without such services, the offshore hydrocarbon industry cannot operate. The facilities couldn’t operate on a legislative basis as PHI’s services are a fundamental element to the applicable safety case. The facilities couldn’t operate on an occupational health and safety basis as the operators require PHI’s quick-response medical and evacuation services to be on standby at all times. The facilities couldn’t operate on a maintenance and repair basis as the operators require PHI’s freight services to deliver mechanical components to be used at the facilities. The facilities couldn’t operate on a logistical basis as the distance of the facilities offshore mean that PHIs services are required mobilise and and demobilise workers and contractors from the facilities.
Unlike a cleaning or catering company the services provided by PHI are not an adjunct single service type of a generic nature easily replaceable. PHI provide extensive, varied and highly skilled services which are integral to the operations of the hydrocarbon industry given the remote offshore location of the hydro carbon resources in Western Australia.
In all the circumstances, I am satisfied that the Ramp Staff are employed in or in connection with the industry of the “search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons…” and that therefore the AWU are eligible to apply for a bargaining order in its capacity as the default bargaining representative of the Ramp Staff who will be covered by the Proposed Agreement.
Should bargaining orders be issued?
A bargaining representative may only apply for a bargaining order if the prerequisites set out in sub-section 229(4) of the FW Act have been satisfied. Sub section 229(4) of the FW Act provides that:
“The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
c.one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
d.the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b)has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c)has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.”
For the reasons articulated earlier in this decision, I am satisfied that the AWU is a bargaining representative for the Proposed Agreement. I am satisfied that the AWU has standing to make the Application in its capacity as a bargaining representative and has made the Application.
The AWU is concerned that PHI, in its capacity as a bargaining representative for the Proposed Agreement, has not met and is not meeting the good faith bargaining requirements set out in section 228 of the FW Act by refusing to recognise the AWU as a bargaining representative for the Ramp Staff for the Proposed Agreement.
The parties exchanged a series of correspondence between 9 August 2021 and 17 December 2021. In this correspondence, the AWU asserted that, by virtue of sub section 176(1)(b)(i) of the FW Act, it was the default bargaining representative for Ramp Staff who are its members and that PHIs refusal to recognise this and bargain with the AWU was in breach of the good faith bargaining requirements.
In this correspondence, PHI confirmed that it would not recognise the AWU as a bargaining representative of the Ramp Staff.
I am therefore satisfied that the prerequisites set out in sub section 229(4) of the FW Act have been satisfied and that the AWU is eligible to make the Application.
Section 230 of the FW Act sets out the circumstances in which the FWC may make a bargaining order:
“Bargaining orders
(1)The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) The FWC must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) The FWC must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
I am satisfied that the AWU has standing to make the Application in its capacity as a bargaining representative, has satisfied the prerequisites set out in sub section 229(4) of the FW Act and has made the Application. I am therefore satisfied that the requirements in sub section 230(1)(a) of the FW Act have been met.
It is not contested that PHI has initiated bargaining for the Proposed Agreement. I am therefore satisfied that the requirements in sub section 230(2) of the FW Act have been met.
The AWU asserts that one or more of the bargaining representatives for the Proposed Agreement have not met or are not meeting the good faith bargaining requirements. In particular, that PHI, in its capacity as a bargaining representative for the Proposed Agreement, has not met and is not meeting the good faith bargaining requirements set out in section 228 of the FW Act by refusing to recognise the AWU as a bargaining representative for the Proposed Agreement.
The good faith bargaining requirements are set out in section 228 of the FW Act. Section 228 provides that:
“(1)The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note:See also section 255A (limitations relating to greenfields agreements).
(2)The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”
I am satisfied that PHI has failed to recognise and bargain with the AWU in its capacity as a bargaining representative of one or more Ramp Staff.
I am satisfied that it is reasonable in all the circumstances to make the order sought by the AWU. An order[41] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Wood AM QC, for PHI.
Mr Duncalfe, for the AWU.
Mr Sowter, for the ALAEA.
Hearing details:
2022
PERTH
4 May
Final written submissions:
AWU final written submission 19 May 2022.
PHI final written submissions 25 May 2022.
[1] Digital Court Book (‘DCB’) 41.
[2] Ibid 41.
[3] Ibid 489.
[4] Ibid 491.
[5] Transcript PN246.
[6] Ibid PN228.
[7] Ibid PN233, PN237.
[8] Ibid PN230,323.
[9] DCB above n 1, 42.
[10] Ibid 500.
[11] Ibid 500.
[12] Ibid 42.
[13] Ibid 498.
[14] Ibid 498-499.
[15] Ibid 494.
[16] Ibid 495.
[17] Transcript, above n 5, PN273.
[18] DCB above n 1, 502.
[19] Ibid 57, 500.
[20] Ibid 7-33.
[21] Ibid 33.
[22] Fair Work Act 2009 (Cth), s 176(3).
[23] DCB above n 1, 59.
[24] Ibid 60.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid 58-59.
[32] Ibid 61-62.
[33] Ibid 63-64.
[34] R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 (Argyle Diamond Case), 340 per Wilson J; applied by a Full Bench of the AIRC in Harnischfeger of Australia Pty Ltd v CFMEU[2005] AIRC 890, [76], by a Full Court of the Federal Court in CFMEU v CSPB Limited [2012] FCAFC 48 at [48].
[35] Harnischfeger of Australia Pty Ltd v CFMEU[2005] AIRC 890, [87].
[36] CFMMEU v Orica Australia Pty Ltd[2020] FWC 2781, [87]
[37] [2020] FWC 2781, [88]. Harnischfeger of Australia Pty Ltd v CFMEU[2005] AIRC 890, [85]-[86]; The Australian Workers’ Union v DOF Subsea Pty Ltd[2020] FWC 5114 at [51].
[38] Harnischfeger of Australia Pty Ltd v CFMEU[2205] AIRC 890 at [92].
[39] Transcript above n 5, PN348-349.
[40] Poon Brothers, 268 (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ).
[41] PR741158.
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