Australian Workers' Union, The v Santos Ltd
[2016] FWC 1109
•4 MAY 2016
| [2016] FWC 1109 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.238—Scope order
v
Santos Ltd
(B2015/1558)
Santos Ltd
v
Australian Workers' Union, The; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; GLNG Operations Pty Ltd
(B2015/1744)
COMMISSIONER SIMPSON | BRISBANE, 4 MAY 2016 |
[1] On 16 November 2015 The Australian Workers’ Union (the Applicant) lodged an application with the Fair Work Commission (the FWC) pursuant to s.238 of the Fair Work Act 2009 (the ‘FW Act’) for a scope order (matter number B2015/1558) and on the 15 December 2015 Santos Ltd lodged an application with the FWC pursuant to s.238 for a different scope order (matter number B2015/1744). The two applications were listed to be heard together and directions issued for the filing of material.
[2] Both applications seeks an order that would pertain to a proposed agreement to cover employees engaged at the Santos GLNG liquefied natural gas processing facility located on Curtis Island, off the coast of Gladstone, Queensland, (LNG Plant).
[3] Neither application seeks to cover all employees at the LNG Plant. The AWU application seeks an order to cover:
i) Process Technicians, (in the Operations team);
ii) Electrical & Instrumentation (E&I) Technician, ( in the Maintenance team);
iii) Mechanical Technicians, (in the Maintenance team);
iv) Panel Technicians, (in the Operations team);
v) Field Team Leaders, (in the Operations team); and
vi) Laboratory Technician, (in the Engineering team).
[4] The Santos application seeks an order to cover:
i) Process Technicians (in the Operations team);
ii) Electrical & Instrumentation (E&I) Technicians ( in the Maintenance team); and
iii) Mechanical Technicians, (in the Maintenance team).
[5] The controversy between the parties as to who should be within the scope of bargaining is confined to the three functional categories of Panel Technicians, Field Team Leaders and Laboratory Technicians, as the parties are agreed that the other three functional categories of Process Technicians, E&I Technicians and Mechanical Technicians should be within scope.
Background before Applications for Scope Orders
[6] Given the peculiar history of the matter it is helpful to set out the chronology of events prior to the making of the two competing scope order applications.
[7] The AWU wrote to Santos on 23 June 2015 attempting to commence bargaining. Santos replied on 29 June 2015 via email from Michelle McHugh, Santos’s Senior Employee Relations Manager, indicating that Santos intended to undertake an Australian Electoral Commission (AEC) ballot to ascertain the views of their employees. That correspondence read as follows:
“Dear Mr Swan and Mr Beers
We acknowledge receipt of your email on 23 June.
The LNG Plant Operations Management Team have engaged in a lot of communication with our workforce over the last 6 weeks and those discussions have not provided us with any indication that the majority of our team want to negotiate an Enterprise Agreement.
We have requested the Australian Electoral Commission run a poll to allow the team to express their view in a confidential manner.
We have request your patience while we undertake this poll.
If you have any concerns, please do not hesitate to contact me on [phone number redacted].
Kind regards
Michelle McHugh”
[8] On 11 August 2015 the AWU filed an application for a Majority Support Determination (MSD). (B2015/1116). The MSD application was the subject of a conference before the FWC on 14 August 2015 where the dispute between the parties concerning the commencement of bargaining was not resolved.
[9] The MSD application was listed for Mention/Directions on 19 August 2015 and in the course of that directions hearing Santos requested that the hearing of the MSD application be set for a date after the conclusion of a ballot that it had arranged to be conducted by the Australian Electoral Commission to determine whether its employees wished to bargain for an enterprise agreement. It was submitted by Santos to the FWC that in the event that the ballot was successful it would agree to commence bargaining with the AWU and the MSD application would have no utility. The Santos submission requesting a date of hearing after the result of the AEC ballot was known was granted, and the MSD application was listed for hearing on 21 September 2015.
[10] Santos had declined a request from the AWU to be involved in the compilation of the roll for the AEC ballot on the basis the list had already been sent to the AEC, however Santos did consent to an AWU representative being involved in the counting of the ballot. The AEC ballot was counted on 15 September 2015 and a majority of employees balloted voted in favour of bargaining.
[11] Ms McHugh wrote to AWU Branch Secretary Ben Swan and Organiser Tony Beers via email dated 15 September 2015 stating:
“As noted below, we have now undertaken a poll of our maintenance and process technicians and the majority have indicated their preference is to commence bargaining for an enterprise agreement.
Based on this feedback, we would like to commence bargaining and will issue a notice of representational rights over the next week. We will also notify FWC that we have agreed to bargain and a majority support determination is not required…”
[12] The first bargaining meeting was held on 15 October 2015 and at the meeting the issue of scope became an issue in dispute. On 16 October 2015 the AWU wrote to Santos outlining their concerns that bargaining was not proceeding efficiently and fairly due to the scope not including certain employees. Santos replied on 23 October 2015. On 30 October 2015 the AWU filed an application for a scope order (B2015/1411).
[13] B2015/1411 was listed for directions/conference on 9 November 2015. The AWU discontinued B2015/1411 on 9 November 2015 on the basis that Santos had raised a number of procedural deficiencies in the application.
[14] The AWU subsequently filed scope order application B2015/1558 on 16 November 2015 which was listed for Directions on 3 December 2015. At the Directions on 3 December 2015 Santos foreshadowed its own Scope Order application. The AWU wrote to Santos on 7 December 2015 raising a concern that Santos were not bargaining in good faith because it had not issued a notice of employee representation rights to all of the employees the AWU proposed to be covered by an enterprise agreement.
[15] Santos wrote to the AWU on 9 December 2015 outlining their concerns that bargaining was not proceeding efficiently and fairly due to the AWU seeking a scope that “it is not appropriate for the Proposed Agreement to cover” and contending that the AWU scope is not fairly chosen. Santos also replied to the AWU’s letter of 7 December 2015 on 11 December 2015 denying that they were not bargaining in good faith.
[16] On 14 December 2015 the AWU filed matter number B2015/1576 for a bargaining order under s.229. A conference for this application was held on 16 December 2015. This application was subsequently withdrawn. Santos filed matter number B2015/1744, a scope order application on 15 December 2015.
[17] The two scope order applications B2105/1558 and B2015/1744 were subsequently listed to be heard together in Gladstone on 14, 15 and 16 March 2016. The AWU was represented at the hearing by its Industrial Officer Mr McKernan. The AMWU was represented by Industrial Officer Mr Blundall-Thornton. The AMWU did not call any evidence. Santos was represented by Mr Ian Neil Senior Counsel and Mr Meehan Counsel instructed by Ashurst.
[18] Counsel for Santos proposed that they would not require for cross examination all of the AWU witnesses given similarities between the statements and proposed to cross examine a sample of witnesses in each of the categories of Field Team Leader, Panel Technician and Process Technician on the basis that the Commission accepted that course as a reasonable basis to consider the evidence concerning the issues in dispute between the parties.
[19] I indicated agreement to that proposed course as being sensible and it was adopted. It was on that basis that statements of the following 21 witnesses in the AWU case were admitted uncontested. Mr Hansen, 1 Mr Baillie,2 Mr Casanovas,3 Mr Castles, 4 Mr Campbell, 5 Ms Crossley, 6 Ms Cullen,7 Mr Ferguson, 8Mr Fink,9 Mr Hjartarson, 10 Mr Kennedy,11 Mr Kennings,12 Mr Kukl, 13 Mr Pangrazio,14 Ms Pangrazio, 15 Mr Primavera ,16Mr Smith17, Ms Smith18, Mr Spray19, Mr Stowe20, Mr Thompson.21
[20] The AWU relied on statements from the further following 18 witnesses who were also subsequently subject to cross examination. Mr Beers, 22 Mr Chant,23 Mr Millard,24 Mr Love,25 Mr Roberts,26 Mr Collins,27 Mr Hamilton,28 Mr Dunnett,29 Mr Fisher,30 Mr Robertson,31 Mr Chadwick,32 Mr Phillips,33 Mr Felice,34 Mr Christmas,35 Mr Linder,36 Mr Stevens,37 Mr Noy38 and Mr Boon.39
[21] In addition to the 39 witnesses for the AWU referred to above, four other statements were filed by the AWU from two Panel Technicians and two Process Technicians in support of their case, however it appears from advice to the Commission by the parties that when these witnesses were required for cross examination were not available and on that basis are not relied upon. No employee engaged in any of the six categories of employee that were the subject of the competing applications gave evidence in support of the order sought by Santos.
[22] Santos relied on two statements from Mr Goldup, the Downstream Operations Commissioning and Start Up Manager 4041 and a statement from Mr Potter, a Chemist employed by Santos,42 and two statements from Mr Krueger the Plant Manager.43 All three witnesses for Santos were required for cross examination.
[23] It was agreed between the parties that given the number of witnesses and the logistical challenges of getting witnesses who are shift workers from Curtis Island to the Gladstone Court House at appropriate times witnesses from the competing cases could be interposed in our to achieve the most efficient timetable in the three allocated days for hearing.
[24] At the conclusion of the hearing dates in Gladstone it was agreed written closing submissions would be exchanged on 12 April and oral submissions were provided at the Commission on 18 April 2016 in Brisbane.
Statutory considerations
[25] Scope orders are brought under section 238 of the Fair Work Act 2009 (Cth) (the Act). Section 238 of the Act states:
“238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative to give notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When the FWC may make a scope order
(4) The FWC may make the scope order if the FWC is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which the FWC must take into account
(4A) If the agreement proposed to be specified in the scope order 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 4(c) whether the group of employees was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single- enterprise agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section ; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc that the FWC may make
(7) If the FWC makes the scope order, the FWC may also:
(a) amend any existing bargaining orders; and
(b) make or vary such orders (such as protected action ballot orders), determination or other instruments made by the FWC, or take such actions, as the FWC considers appropriate.”
Section 238(1)
[26] The AWU initially foreshadowed a jurisdictional objection that Santos could not satisfy s.238(1)(b) given the words “the agreement” as they appear in s.238(1)(b) is a reference to “the agreement” proposed by the party making an application for a scope order, and in Santos’s case it could not say about its own proposal that it will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
[27] The foreshadowed objection was not pressed so no formal submission was put before me on the matter. I am inclined to the view that where there is a dispute over scope and bargaining has commenced as is the case here, parties in dispute are entitled to make a scope order application and that is how this matter has progressed. If I am wrong on that matter and Santos could not satisfy a.238(1)(b) given the breadth of the notice of employee representation rights (NERR) that it issued at the time it agreed to bargain, than such an error has not altered the determination of this matter for reasons set out below. I also note that had Santos been limited to defending the AWU application rather than having an opportunity to propose its own scope then much of the evidence led I suspect would have been similar.
Section 238(2)
[28] There is no single interest authorisation in operation in relation to the agreement.
Section 238(3)
[29] The applicants in both matters have taken all reasonable steps to given a written notice setting out the concerns referred to the relevant bargaining representatives for the agreement, and given the relevant bargaining representatives a reasonable time within which to respond to those concerns, and considered that the relevant bargaining representatives have not responded appropriately.
Section 238(4) and Section 238(4A)
[30] The Full Bench of the FWC in Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476 dealt with the proper approach to two concurrent scope order applications, one by an employer and one by a union bargaining representative, as follows:
“[42] Overall, the Commissioner’s approach was to consider whether the requirements of s.238(4) were met in relation to the enterprise agreement proposed by the company and then, having been satisfied that those requirements were met, granting the company’s application without separately considering whether the requirements of s 238(4) were also met in relation to the union’s proposed agreement. That approach involved error.
[43] The Commissioner was considering two separate and competing applications for a scope order. Each had to be considered on its own merits. In circumstances where each of the competing proposed agreements satisfied the requirements in s 238(4) (a) to (c), the resolution of the competing applications is governed by s 238(d). One of the two applications will be a more reasonable exercise of discretion. It would not be reasonable to make the orders sought in the other application.
[44] In accordance with the approach laid down in United Firefighters, prima facie, if the group proposed by the union is reasonable it should be preferred unless there is some good reason to prefer the two groups proposed by the company over the single group preferred overwhelmingly by the employees. That is, unless there are factors relating to the fairness and efficiency of bargaining and or demonstrated prejudice to the employer’s business operations that make it more reasonable to accept the employer’s application, notwithstanding the contrary preference of employees, weight should be accorded to the views of the employees.”
Subsection 238(4)(a)
[31] There has been one meeting between the parties on 15 October 2015 at which the issue of scope arose. It is apparent the parties have proceeded on the basis that the matter of scope needs to be resolved in order that the bargaining can progress.
[32] The AWU has submitted that it is prepared to bargain in accordance with the Full Bench authority in MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 where the Full Bench in its decision said as follows at paragraphs [18] and [19]:
“[18] …….Where there is continuing disagreement between the bargaining parties as to the scope of the proposed enterprise agreement, the remedy for the party who wants a narrower scope is to seek a scope order pursuant to s238. In the absence of such an order, bargaining will proceed on the basis of the broader scope, save that the parties are entitled to continue bargaining over the scope itself until such time as the scope of the proposed agreement is settled through bargaining or by the making of a scope order.
[19] It follows from the scheme of the FW Act that the obligation under s173 is to issue a notice of representational rights to the broader class of employees even though the employer does not wish to have an agreement that extends that far. If it were otherwise, it would mean that an employer could always prevent an agreement having a broader scope than it desired by simply refusing or failing to issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with the scheme of the FW Act.”
[33] In this case contrary to the approach as described in the Full Bench decision above, Santos did not agree to negotiate on the basis the broader scope sought by the AWU in the period before the scope dispute was determined as Santos declined a proposal from the AWU to adopt that course. As set out earlier the AWU filed a s.229 application foreshadowing an argument that Santos’s refusal to issue a NERR to the broader group was not bargaining in good faith however subsequently withdrew the application. In the hearing of the competing scope order applications neither party contended that the other was not bargaining in good faith. As there was no evidence put to me that either party was not bargaining in good faith I am satisfied that the applicants in both matters have met the good faith bargaining requirements.
Section 238(4)(b)
[34] The Commission must be satisfied that making the scope order proposed will promote fair and efficient conduct of bargaining; s.238(4)(b).
[35] In United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293; 62 AILR 101-222; [2010] FWAFB 3009, a Full Bench said the following in regard to s 238(4)(b).
“[55] The relevant consideration under s 238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will be at least fairer or more efficient or both than it would be if no order were to be made.”
[36] The Full Bench in The Australian Workers’ Union v BP (Kwinana) Pty Ltd[2014] FWCFB 1476 in regard to the paragraph 238(4)(b) said as follows:
“[23] It is true that the Commission can only make a scope order when such an order will be “necessary to promote fair and efficient conduct of bargaining”. Where, as here, bargaining is at an impasse because of the disagreement over the scope of a proposed enterprise agreement and the Commission is confronted with competing applications an order is “necessary” to break the impasse.”
[24] When considering two competing applications in a particular case, it may be found in the case of each application that “making the order sought will promote the fair and efficient conduct of bargaining” within the meaning of s.238(4)(b). The relative degree of promotion of such fairness and efficiency in the conduct of the bargaining will obviously be relevant to a determination of which of the two competing applications should be accepted.
[25] One can postulate circumstances where bargaining for two agreements for two groups would be more efficient than bargaining for a single agreement covering both groups. To give a single example, the evidence may establish that the two groups of employees have conflicting positions on issues that are important to them but not particularly important to the employer, as can arise where there are demarcation issues. In such a case, it may plainly be more efficient to have two separate agreements and avoid the effort and delay involved in resolving those issues for a single agreement.”
[37] The circumstances in this case are distinguishable from the Kwinana matter to the extent that Santos has not made a proposal for separate bargaining for the group that is excluded from its preferred scope as was the case in Kwinana.
[38] This raises an immediate issue concerning the interests of the Field Team Leaders, Panel Technicians and Laboratory Technicians who wish to enterprise bargain and have expressed a desire to do so.
[39] It was put for Santos in closing submissions on the basis of the evidence of Mr Krueger that Santos would not object to bargaining for separate agreements, and while it would not initiate bargaining it would not object to bargaining for a separate agreement with groups of employees who answer the statutory tests. 44
[40] I have reservations about this submission and the evidence of Mr Krueger on this issue for reasons that I will set out below. The history of this matter suggests that Santos is reluctant to bargaining with those groups inside the AWU proposed group but outside the Santos group if they are not covered by a scope order. Santos has made no attempt to articulate any view about its preference about what would be a fairly chosen group or groups for each of the three functional categories it seeks to exclude in the event its application succeeds. It has remained notably silent on that issue.
[41] Certain pieces of correspondence that were attached to the statement of Mr Beers assist in assessing the attitude of Santos to enterprise bargaining with these groups of employees.
[42] Mr Kruger in his evidence discusses receiving a letter from the AWU wishing to commence negotiations and the Santos decision to engage the AEC to conduct a ballot. 45 Mr Kruger attached to his statement an email of Brenton Hawtin, the General Manager Downstream Operations. The email does not provide any explanation about certain groups being excluded from the AEC ballot that would fall within the group described ion the AWU letter.
[43] Mr Kruger said in his statement that after he had decided that the AEC ballot should be conducted, he turned his mind to what group of employees should be balloted. His evidence was that following discussions with the Management Team, Superintendents, Team Leaders and Corporate Human Resources, he (my emphasis added) decided that employees that should participate in the ballot were Process Technicians, Mechanical Technicians and E&I Technicians, and that Panel Technicians and Team Leaders should not participate in the ballot because they were an organisationally and operationally distinct group. 46He reiterated under cross examination this view when asked why certain groups of employees were excluded from the AEC ballot.47
[44] Mr Krueger was then asked the following question during cross examination:
“And you never once considered just seeking the views of all employees and then making a decision what you would do about bargaining after that? And what I mean by that, for clarity, is if these are organisationally and operationally distinct, what is Santos’ objection to having bargaining for two agreements? ---- I have no objection.
You have no objection? --- To bargaining for two separate agreements.
[45] Mr Kruger said that he communicated to the Operations and Maintenance leadership teams and the Management Team who could vote in the AEC ballot and why, including by way of a document entitled frequently asked questions issued in July 2015 48. The document read as follows:
“FREQUENTLY ASKED QUESTIONS
1. WHY IS THE COMPANY RUNNING ITS OWN POLL?
We want to know and understand what your views are about whether you want to have an enterprise agreement in place to underpin your contract of employment.
The best way to do this is through an impartial and independent organisation, which is why we have asked the Australian Electoral Commission or AEC to conduct the poll.
The vote will be a postal vote conducted by the AEC.
Once we know your views, we will make a decision about how to proceed.
2. WHO WILL BE ABLE TO VOTE IN THE POLL?
You will be able to vote in the poll if you are employed in a field-based process technician or maintenance technician role, that is not a supervisory role or a specialist role.
3. WHAT IS THE COMPANIES PREFERENCE IN RELATION TO AN ENTERPRISE AGREEMENT?
Our preference has been, and continues to be, for a direct relationship with you instead of the negotiation and implementation of an enterprise agreement.
We do not consider there is any need for an enterprise agreement to be negotiated and implemented at the Curtis Island site. In our view, enterprise agreements promote and ‘us against them’ culture and can promote disharmony.
It is our preference that your circumstances be taken into account via direct engagement with you, rather than all employee entitlements being negotiated together.
We would prefer to communicate and manage any issues directly with you, without the involvement of a third party. Maintaining a direct relationship between us allows for greater flexibility and adaptability in the workplace and will promote a closer relationship between us.
4. IF BARGAINING FOR AN ENTERPRISE AGREEMENT DOES COMMENCE, WHAT HAPPENS TO OUR CURRENT TERMS AND CONDITIONS?
The terms and conditions which are currently contained in your contract of employment (and the contracts of the entire DSO team) are legally binding and cannot be altered without your consent. An enterprise agreement, if negotiated, will only underpin that contract for employees who are covered by it. All other contracts will be underpinned by various safety net Awards (as they are now) including, the Hydrocarbons Award, Professional Employees Award 2010, Manufacturing and Associated Industries and Occupations Award 2010, Clerks Private Sector Award 2010 etc.
If an enterprise agreement comes in and it provides for minimum terms and conditions that are below what is in your current contract of employment, then Enterprise Agreement will be honoured but your contract of employment will take precedence.
The Company’s objective is to be a company that people want to work for. We want you to feel that your terms and conditions are fair and reflect your contribution to the Company.
We will always try and reward you fairly.
5. WHAT ARE THE BENEFITS OF INDIVIDUAL CONTRACTS
Under your contract of employment, you receive pay and other entitlements which greatly exceed the minimum standards contained in the relevant safety net award. These terms and conditions of employment are legally binding, cannot be altered without your consent and will continue even if there is an enterprise agreement in place.
We would prefer to continue rewarding you on the basis of individual achievement and on terms that reflect market conditions, rather than have entitlements in collective terms and conditions in an enterprise agreement.
In our experience, good workplace relations are enhanced when we work together to promote your career development, wage increases and job security via the success of our business.
6. WILL THE PERFORMANCE MANAGEMENT PROCESS REMAIN?
Yes. The Santos performance management framework will stay the same even if an enterprise agreement is agreed and approved.
You will continue to have one-on-one discussions with your leader who will set performance expectations for you and provide feedback on your performance.
7. CAN PANEL TECHNICIANS VOTE IN THE POLL?
No, you will not be able to vote in the poll because you are in a specialist role and, as such, will not be covered by an enterprise agreement. For these reasons, you will not be able to vote in the poll.
8. CAN I PARTICIPATE IN BARGAINING FOR AN ENTERPRISE AGREEMENT WITHOUT BEING A UNION MEMBER?
Yes. Any employee who will be covered by an enterprise agreement is free to nominate themselves as a bargaining representative.
Even if you are a union member, you may nominate yourself as your own bargaining representative if you would prefer to bargain for yourself. You can also nominate another person as your bargaining representative if you wish to do so.
9. IS THERE GOING TO BE A CURTIS ISLAND EBA?
We have not received any approaches from any Union about commencing bargaining for an Agreement that would cover all the LNG Operations on Curtis Island.
10. WHY HAVE COMMUNICATIONS TO THE TEAM INCREASED SO MUCH?
Our increased levels of communication, including from Brenton and his Management Team, is a genuine reflection of the fact that the Company is committed to addressing the issues that have been raised by our employees.
Maintaining a direct relationship enables greater flexibility and productivity in the workplace and will help build a more cohesive team environment.
The intention of Brenton and his team continues to be to maintain a direct, open, honest relationship with the entire Downstream operations team. Our goal is to safely and effectively operate our LNG facility and strong, open communication will make us successful in achieving our goal.
11. DO I NEED TO BE ON THE ELECTORAL ROLL TO VOTE IN THE POLL?
The Australian Electoral Commission is conducting the poll but the electoral roll is not needed, the roll form the poll will be developed from the Oracle data. For this reason, we need everyone to have their postal address up to date in Oracle.
[46] Santos has never sought to test the views of all of the employees for whom the AWU wrote to Santos on 23 June seeking to initiate bargaining. Santos quite deliberately decided to only test the views of some of that group. The reason given in the document set out above as to why panel technicians would not be given an opportunity to participate in the AEC vote was that they are in “a specialist role and, as such, will not be covered by an enterprise agreement.”
[47] The FAQ document does not contemplate a possibility that Panel Technicians could be covered by a different agreement, it instead indicates that Santos was of the view given Panel Technicians role that they should not be covered by an enterprise agreement. The document does not address the question of the exclusion of Field Team Leaders from the vote despite the opening sentence in the document stating “We want to know and understand what your views are about whether you want to have an enterprise agreement in place to underpin your contract of employment.”
[48] I asked a number of questions of Mr Krueger before he concluded his evidence regarding this matter as follows:
“I guess what I am interested in is to the extent that you remember, why wasn’t – there’s been a counter application made by Santos, as you know, with the three classifications in it. The unions application has got six. If the position is that Santos didn’t object to certain classifications being within a separate agreement, do you have any knowledge about why Santos chose to make a counter application that just included three and didn’t consider making a counter application that included a group with three and then another group with one or two or three? ----Right. So that view – and I guess in relation to that question was, the context I took that question in was around the Hydrocarbons Award relation ----
Yes sure? ---And that coverage. So, you know, if you wanted to go that way then we’d have to go through the same process, but we see our leaders as, you know, part of – leaders – they don’t like the term “management” but it’s part of the leaders in the first point of leadership area for the teams, so ----
I’m just trying to be clear in my own mind in terms of your evidence on this and this is to your knowledge is the Santos’ position, “Look, we’d be open to enterprise bargaining negotiations with – well there’s three groups that aren’t in the Santos’ scope. There’s the panel techs, the field team leaders and the lab techs. Now does Santos have a view that it doesn’t believe any of those groups should be under an enterprise agreement or does it have a view that perhaps one or two could be and one shouldn’t be or, I mean, what’s your knowledge of the view? ---Our view is that we want to make sure we have a direct relationship with our staff and the best way we believe to do that is have it through that directly with our staff.” 49
[49] When Mr Krueger was pressed about what Santos’s view was about the groups that should be under an enterprise agreement he returned to the language of the Frequently Asked Questions document, using words to the effect that Santos prefers a direct relationship with its staff. The inference that can be drawn from this evidence and Santos’s actions when viewed in totality is that Santos remains reluctant to bargain with the other groups, and as things stand has still not agreed to bargain with them.
[50] Mr Neil contended for Santos in answer to a question from me during closing submissions that the reason Laboratory Technicians were not included within the group of employees that were given an opportunity to vote in the AEC ballot organised by Santos was because laboratory technicians were not part of a group that Santos maintained was a fairly chosen group, and that one can’t take the step from that proposition to the quite different proposition that Santos has any hostility to the notion of enterprise bargaining with laboratory technicians or any other class of employee Santos excluded from its preferred scope order. 50
[51] There has never been any argument put against the proposition that all six of functional categories that the AWU seeks to be covered by its scope order are employed in classifications covered by the Hydrocarbons Industry (Upstream) Award 2010 (MA000062) so it could not be, and has not been suggested by Santos, that Santos did not understand who the AWU was referring to its correspondence of 23 June 2015.
[52] The AWU correspondence was clear in advising Santos it wished to commence bargaining for an agreement to cover employees of Santos engaged at Curtis Island, in classifications covered by the Hydrocarbons Industry (Upstream) Award 2010 specifically those employees engaged as Hydrocarbons Industry Operations and Processing Employees and Hydrocarbons Industry Modification and Maintenance Trades Employees. The language used in Schedule B 2.4 and B. 2.5 of the Award covers all six categories of employee.
[53] The reasons given by Santos at the time for excluding Panel Technicians from the AEC ballot in its Frequently Asked Questions document do not align with the argument put now that it was just a reflection of its view about the group being organisationally and operationally distinct. It is likely more than that. Otherwise why did Santos reject the request to issue NERR; s to all of the employees who it was advised wished to bargain, and instead proceed to confine the group who were issued NERR’s to the three functional categories of its choosing alone. Further, why did Santos not provide those groups with the opportunity to exercise a vote in its own AEC ballot? That ballot was not said to be for the purpose of determining preferred scope, it was said to be for the purpose of Santos determining for itself whether its employees wanted to bargain with it.
[54] In closing submissions it was also put by Santos that there is no evidence tendered by the AWU that bears upon any of the statutory questions so far as they concern Laboratory Technicians. 51It was put that the evidence was all one way, and there was no evidence of even any relevant desire on the part of Laboratory Technicians.52 The evidence is that there are only 3 Laboratory Technicians employed by Santos in total. The evidence of Mr Beers in his witness statement included the following:
“38. Since the meeting in October employees have continually told the AWU that they still want the bargaining to include Panel Technicians and Field Team Leaders and Lab Technicians in the agreement along with those that the company have already agreed to bargain with.
……………………
……………………
41. Since the meeting that occurred on the 15th October 2015 the AWU have had over a dozen meetings with members that are employed by Santos, including those employees identified above that have been excluded by Santos from the bargaining. At these meetings all of the employees maintained their view and expressed vocally their continued desire to bargain with Santos and their view that they all want to bargain collectively as one group.”
[55] Mr Beers was never directly challenged on this evidence. For example it was never put to him that Laboratory Technicians did not attend the dozen meetings he said that had occurred since 15 October 2015, and where it was his evidence the excluded groups participated and all wanted to bargain collectively as one group. In his oral evidence Mr Beers in answer to a question from me concerning why a Laboratory Technician was not called to give evidence said as follows:
“So if I go back to explain it better from the outset, the union did seek a majority support for certain classifications of employees. The company conducted a ballot of their employees, through the AEC, and they chose the group that they wanted to bargain, different to ours. At that point all employees in classifications were invited to come and participate, if they wanted to. At that point, back in September, they had not expressed their desire. Then obviously the outcome of the AEC ballot was concluded and at that point they included electrical instrument technicians over there. We meet with the company to commence bargain, workers made approaches to the union, that are engaged in the laboratory over there, and said that they wished to be included, for the purposes of bargaining for an agreement and it was at that point the AWU included them, as part of the scope and it was clearly evident that the roles that we looked at and chose were all provided for in the Hydrocarbons Award that covered the industry. And when we walked through conversations about the material, the workers said they wanted to bargain. From the three, two of them wanted to bargain.” 53
[56] There was also a further exchange between Counsel for Santos and Mr Beers concerning the Laboratory Technicians:
“Yes. So the proposition is, according to you, at some point in time, two of the three AWU members who worked in the laboratory told you that they wanted to continue to bargain, is that right? --- They wanted to be included in the bargaining.
When did they tell you this? ---October 2015.
And in what context did they tell you this?--- In the context that Santos were treating them like crap, over there on the ground. They wanted to be involved in bargaining to try and get decent terms and conditions rather than continually having their individual contracts changed or interpreted how the company saw sit.”
[57] When this evidence is considered in its totality, contrary to the submission of Santos, I am satisfied that two of the three laboratory technicians wanted to bargain, and wanted to bargain as part of the group that included the other occupational groups. There is no evidence contrary to Mr Beers’ evidence on this point.
[58] Due to Santos’s approach in limiting the breadth of its NERR at the point in time that it agreed to commence bargaining with the AWU, and at all times since then, it has still not agreed to include Panel Technicians, Field Team Leaders, or Laboratory Technicians within the scope of any bargaining.
[59] Santos has not just refused to include them within the scope of its own proposed agreement; it has also not sought to propose or initiate alternative negotiations either. As things stand in the absence of a scope order from the Commission in favour of the employees in the group Santos seeks to exclude, those employees will not have advanced one step towards bargaining for an agreement with their employer despite the consistent attempts to do so.
[60] In brief summary that includes, firstly the representation made by the AWU in June 2015 to commence bargaining on their behalf.
[61] Secondly, Field Team Leaders and Panel Technicians being part of a larger group that signed a petition in support of a majority support application which was initially opposed by Santos, then withdrawn by the AWU after Santos indicated to the AWU the application did not need to proceed as it had agreed to commence bargaining for an agreement.
[62] It should be noted that while Santos would not have been aware of the identity of the individual employees who signed the MSD petition at the time the application was alive as the application was filed with a redacted copy of the petition, Santos should have been aware a petition had been signed by 53 employees which was a considerable proportion of the total number of employees, employed by Santos at the time falling within the ambit of the MSD application, that being employees within the scope of the MSD which Santos would have known excluded some of their employees. Santos’s lawyers were given an opportunity to inspect an un-redacted copy of the petition in preparation for arbitrating the MSD application on the basis that they undertook not to disclose the identity of the persons who signed the petition to their client.
[63] The AWU made a further request that Santos include Field Team Leaders, Panel Technicians and Laboratory Technicians within the ambit of bargaining while the disputed issue of scope was determined, which the AWU submits is consistent with the approach as described by a Full Bench in MSS Security Pty Ltd referred to above. This request was rejected by Santos.
[64] Finally the section 238 application was filed. If (keeping in mind that Santos had excluded the contested categories of employees from the AEC ballot) Santos held a legitimate doubt in its mind about whether Field Team Leaders or Panel Technicians wanted to bargain with it, that should have been resolved when it was served by the AWU with its evidence in this scope order application which included 8 Panel Technician’s and 4 Field Team Leaders (5 including Mr Boon) having taken the further step of signing statements in support of the AWU scope order application.
[65] There has been no evidence that any Field Team Leader opposes the AWU application. The evidence of the four Field Team Leaders, and Mr Boon who had been promoted to Field Team Leader, on this issue included the following. Mr Chant said the reason he wanted to bargain with Santos was because he wanted to have a collective agreement in place to cover his terms and conditions of employment. He said he felt that the company is not listening to the workforce and that despite their constant comments about being the employer of choice, which is the reason he started with the Company on the site, this is not reflected in the reality. He believed they have very outdated views and ideas about how to engage their workforce and establish the terms and conditions of employment for their workforce.
[66] Mr Noy said the reason he wanted to bargain with Santos is because issues in relation to their terms and conditions of employment are not being resolved. He said he wanted a collective enterprise agreement that clearly sets out our terms and conditions of employment.
[67] Mr Roberts said the reason he wanted to bargain with Santos is because he wanted the conditions that he and his colleagues work under to be open and fair. He said he wanted to bargain because he wanted to eliminate contract conditions that can be changed on a whim by the company. He said he wanted to bargain collectively with the assistance of the AWU to ensure bargaining is fair and conducted in a transparent manner.
[68] Mr Felice said the reason he wanted to bargain with Santos is because he wanted to ensure that any changes in employment conditions are negotiated, and he wanted representation for those negotiations. He said he had negative experiences previously on contract arrangements where the company decided to change his employment conditions without negotiation and their explanation was that it was simply a company decision. He said he wanted a collective agreement to protect my terms and conditions of employment from risk. Mr Boon who had been promoted from Process Technicians to Field Team Leader also gave evidence he wanted to bargain for an enterprise agreement.
[69] Each of the Field Team Leaders referred in their statements about being excluded from the AEC ballot.
[70] There was no evidence of any Panel Technician opposing the AWU application. The evidence of the 6 Panel Technicians who gave evidence on this issue was as follows. Like the Field Team Leaders they each complained of exclusion from the AEC ballot. Mr Love said the reason he wanted to bargain was to lock in his conditions. Mr Collins said he wanted to negotiate fair conditions collectively with his colleagues and bargain as a group. Mr Hamilton said that the reason he wanted to bargain was because he believed that bargaining collectively with the company leads to a better and fairer workplace. It also leads to more honest and open communications. He said he had now experienced the ‘Individual Contract’ arrangement and he didn’t like the work environment that it has created. Mr Christmass said he wanted to bargain because of the many challenges that all the shift workers face working on the island, particularly the long days and travel. Mr Linder said he wanted to bargain to lock in his conditions and have a clear vision of what to expect in the future. Mr Stevens said the reason he wanted to bargain was because he wanted to ensure all changes to their terms and conditions of employment were negotiated and protected.
[71] Santos attempted to make something of the fact that of the many witness statements relied upon by the AWU, they included some paragraphs that were the same, and this of itself undermined the value the evidence overall. This argument is something of a rehashing of an issue that was the subject of an earlier application made by Santos for production of documents used in preparing the statements for the AWU case, which included use of a questionnaire. I rejected the application for production for the reasons set out in an interlocutory decision.
[72] I also regard Santos’s submission on this point as something of a red herring. The witnesses all executed the statements which were witnessed by a Solicitor or Commissioner for Declarations and those that were required for cross examination proclaimed ownership of their statements. Witnesses were aware and acknowledged the statements were drawn up for them from their responses to the Union including by reference to the questionnaire they answered.
[73] Contrary to the inference in the Santos submission that the statements did not reflect the witnesses own views, with the exception of Mr Felice concerning the matter of disciplining of employees, the evidence of the witnesses demonstrated otherwise. It was my clear impression that there was a strong undertone of frustration and resentment from the employees who appeared as witnesses directed toward their employer. Witnesses employed as Field Team Leaders and Panel Technicians particularly left me with a clear impression they were unimpressed with their employer’s opposition to their inclusion within the scope of bargaining, and were willingly giving their evidence, including that they genuinely believed their respective roles were interlinked.
[74] It is no small thing for an employee to make the decision to provide a statement and agree to give evidence in a public hearing against and critical of their own employer whilst still employed by that employer. However that is what a significant proportion of the workforce based at the Santos Curtis Island Plant were prepared to do in this case which says something about the point to which relationships have been affected at this site over this dispute.
[75] Issues of fairness and efficiency of bargaining will arise if the outcome of these proceedings were to be no more than that those employees outside the employers preferred scope continuing to remain outside bargaining.
[76] The evidence is clear that Panel Technicians and Field Team Leaders have wanted to commence bargaining with the employer from as far back as June 2015. In the case of the Laboratory Technicians the evidence of Mr Beers satisfies me that they also wished to be included within the scope sought by the AWU from October 2015.
[77] Given the evidence and the history of the matter, and that Santos is yet to agree to bargain with the three disputed functional categories of employees, I am not confident bargaining will proceed fairly or efficiently if I decline the AWU application. It would appear on the state of the evidence there is a potential for further disputes to arise between the parties about bargaining for these groups if I decline the AWU application, and this is a basis to conclude that making the AWU order will promote fair and efficient bargaining, and making the Santos order will not.
Team Leaders
[78] Santos has raised other issues in regard to fairness and efficiency. Santos argues that the inclusion of Field Team Leaders would not promote the fair and efficient conduct of bargaining on the basis that Field Team Leaders have materially different and conflicting interests with other members of the proposed group. Santos has provided as examples Field Team Leaders responsibility for setting performance goals for Process Technicians, evaluating their performance, and if necessary, performance managing them in circumstances of unsatisfactory performance.
[79] Santos has also referred to Field Team Leaders having some responsibility for disciplinary decisions in response to unacceptable conduct by Process Technicians and that Field Team Leaders may wish to exercise those responsibilities unconstrained by prescriptive processes or procedures.
[80] Santos has argued that there is no sensible basis upon which to differentiate between the Field Team Leaders and other Team Leaders in the Operations and Maintenance teams from an organisational perspective. It submitted that the selection of Field Team Leader to the exclusion of others is arbitrary and without any good basis. The Team Leaders are participating in a development process encompassing, among other things, selection, training, professional development and mentoring.
[81] Santos’ submitted that its goal is to develop a group of Team Leaders who have an understanding of and affinity with Santos’ business strategy, and the capacity to advance Santos’ business strategy within their own team as the first level of management.
[82] Santos argues that the Team Leaders are and will continue to be more closely aligned to the Superintendents that they report to, as opposed to the technicians that constitute the subordinate members of their teams, because they are the first level of management.
[83] Mr Krueger said the following in his evidence;
“The role of a team leader in Santo’s view is to manage the team, perform disciplinary action, mentor, coach, develop, lead the teams. That is the role of a team leader.” 54
Backgrounds of Field Team Leaders
[84] Much of the cross examination of Mr Chant, 55 Mr Roberts,56 Mr Felice57 and Mr Noy,58 and Mr Boon59focused on these issues. The statements of the four Field Team Leaders and Mr Boon called to give evidence included the following:
[85] Mr Chant gave evidence he worked in the Petrochemical industry for 31 years and he worked in a variety of roles including Shift Coordinator roles, Control Room Technician Roles, Process Technician roles, and Electrical Instrumentation Technician roles under enterprise agreements. Mr Noy said he previously worked in the Power Generation industry under a collective agreement. Mr Roberts said that he has worked in the hydrocarbon and chemical industry for the past 8 to 10 years in a variety of roles including Team Leader roll, Panel Technician and Process roles. He said he has predominantly been employed in these roles under enterprise collective agreements. Mr Felice said this is the first time he has worked in the LNG Industry. Historically he had worked in the construction industry as a construction supervisor.
[86] Mr Chant, Mr Noy, Mr Roberts and Mr Felice all described the four main roles in the operations area as Process Technician, Panel Technician, Field Team Leader and Laboratory Technician. All four gave evidence to the effect that the roles are all interlinked and on any shift they could perform any role they are capable of performing.
Duties of Field Team Leaders
[87] Mr Chant described his role is to look at and monitor the daily routines of the plant and organise the Process Technicians to achieve tasks required to maintain production requirements in a safe and timely manner. He said as part of his role he sometimes works in the field on tools alongside Process Technicians. He said every time he goes outside he takes tools with him, 60 and he does this every day.61 He said “— if I go outside without my bag I’d probably end up having to come back and get a set of stilsons as well or something.”62
[88] Mr Noy said his typical day starts with handover from the previous shift. He said he delegates prioritised tasks and areas of responsibility to the Process Technicians and attends to any queries or issues that arise and makes decisions about action required. He said he oversees the ship loading and mooring processes. He said as part of his role he sometimes works in the field alongside the Process Technicians. He said he works in the field daily, starts plant, stops plant, isolation of equipment, P & ID walk downs, ties off ships, ship loading and draining and purging lines. 63
[89] Mr Roberts said as part of my role he is responsible for issuing and signing off on work permits. He said he also operates plant working alongside the team which consists of Process Technicians, Panel Technicians, Field Team Leaders and Laboratory Technicians. He said he also updates operating procedures and isolations as part of his role and performs minor maintenance as required. Mr Roberts said he regularly work in the field on tools alongside Process Technicians.
[90] Mr Felice said as part of his role he works with the rest of the team (including all other roles) to provide operational labour to run the plant at its best possible throughput. He said as part of his role he does occasionally work in the field on tools alongside Process Technicians. He said he had worked as a stand in for the shift superintendent three times this year. 64 Mr Felice said he has worked as a Process Technician when they are low on numbers out in the field. When asked how many times that happened he answered “Today, 80% of the day. Yesterday, 98 per cent of the day. It just depends on the day and what is going on.”65
[91] It was put to Mr Chant that by and large he is just allocating tasks to his team. He said sometimes he just goes and does them himself 66 he accepted he had a lot of paperwork to do at times.67 He accepted that it would be Santos intention when Train 2 is up and running that the need for him to work out on the tools alongside process technicians will decrease68
Training, Discipline and Performance Reviews.
[92] Mr Krueger gave evident about the accountabilities of Field Team Leaders in a range of areas. 69 However, the evidence of Field Team Leaders does not sit well with the evidence of Mr Krueger in this regard.
[93] It was put to Mr Chant that he attended a course in February 2013 designed to prepare him for leadership, called the New Leader Orientation. Mr Chant said he remembered the document, 70 however his evidence was to the effect that he had little recollection of the course. (500-516) Mr Chant was also shown a document titled ‘Leader guide to unlocking performance potential.’71 He agreed that the course was about holding members of the team accountable and having conversations with them about performance and progress, and recognising and rewarding members of the team.72 He accepted that he was being prepared to have difficult conversations about performance and discipline.73
[94] Mr Noy was shown the same documents. He said he did not remember the New Leader Orientation Document. 74 He remembered the course as having been in February 2 years earlier and he didn’t remember discussion about the document.75 Mr Noy was taken to different parts of the document but had a poor recollection of it. He recalled seeing the Leader guide to unlocking potential document and it was given to him as part of the course. He generally had a poor recollection of the course.
[95] Mr Roberts gave evidence that he had not attended a New Leader Orientation Course, or been asked to attend one. 76
[96] The New Leader Orientation Training was conducted for a single day over 2 years ago. The witnesses showed poor recollection of what was covered in the training. There is little evidence of follow up of this 1 day training course 2 years earlier. The course materials also do not point to the training being specifically provided for Field Team Leaders, which tends to indicate it may have been more generic than specifically tailored for Field Team Leaders.
[97] All four Field Team Leaders gave evidence that they were not responsible for disciplining workers as part of their role, and do not discipline workers in their statements, however Mr Felice gave oral evidence that he did, at his level. It transpires that the statement he signed was different from the answer he gave on a survey questionnaire.
[98] When Mr Chant was shown a copy of Santos’s Counselling and Discipline Policy, 77 he indicated he was not very familiar with the document. He appeared to accept a Field Team Leader could issue a warning under the policy.78 He gave evidence that he had not given a warning and it had been done for him. It was clarified that Mr Chant was not involved in this matter.79 Otherwise it was confirmed Mr Chant had never undertaken any counselling or disciplinary matter involving a member of his team to a formal counselling session.80
[99] Mr Noy said he had not seen the Counselling and Discipline Policy, and did not know of its existence. 81 His evidence was he had never needed to escalate any discussions about performance.82 Mr Noy said he did not believe there had been any follow up training since the new leader training.83
[100] It was Mr Roberts’s evidence that he did not discipline a Process Technician in his team as that was done by his supervisor a Mr Dart. He said he was in attendance but Mr Dart did all the discipline activities. 84 Mr Robert’s said it was his supervisor that raised the issue of attendance of the Process Technician. Mr Roberts gave evidence that he did not see it as his job to escalate the issue.85 Mr Roberts said he had not seen the Counselling and Discipline Policy,86 and had never been told he was responsible for disciplining anyone on his team.87 It was put to Mr Roberts he had some informal discussions with the Process Technician. Mr Roberts said Mr Dart prepared everything himself and asked Mr Roberts to attend a meeting with the Process Technician and Mr Dart presented it.88 Mr Roberts reiterated everything was done regarding this issue by Mr Dart.89 Mr Roberts said he hadn’t seen any other Team Leaders on his shift perform any discipline activities, and normally everything like that is done by the Shift Superintendent.90
[101] In answer to the proposition that he was responsible for the members of his team as Team Leader, he responded under the direction of the Shift Superintendent. 91
[102] One of the reasons that Santos relies upon as a basis to criticise the method used for preparing the witness statements arose during cross examination of Mr Felice where it became evident the questionnaire he had completed which was used as the basis for drafting his statement, contained a question as to whether he disciplined workers as part of his role, and he answered the survey “Yes, as required.” 92 However paragraph 9 of the statement that he signed and witnessed read “I do not formally discipline any workers as part of my role.” He said he did not pick that up. He agreed he did formally discipline workers at his level.93
[103] The evidence concerning the role of Field Team Leaders in the counselling and discipline of their team members indicates, despite Santos’s evidence that this is an important part of the role of a Field Team Leader, Field Team Leaders have had a minimal role in this area since the commencement of operations, and even in the limited instance of any involvement of a Field Team Leader in the area of disciplining of employees, the issue has been driven for management by an more senior employee than the Field Team Leader.
[104] Mr Chant accepted that he had a discussion with other Field Team Leaders and their supervisors about moderation of employees assessment of performance to ensure the same approach was adopted across team. 94 Mr Chant was also shown a bundle of documents which were reviews of the performance of members of Mr Chant’s team in the previous year’s performance review, and he accepted these reviews included an assessment from him.95 He also accepted that his own performance review included performance objectives of keeping employees engaged by offering them opportunities and rewarding and recognising individual behaviour.96
[105] Mr Roberts accepted he was responsible for reviewing the performance of members of this team. 97 He agreed he had completed performance reviews for his team.98 He agreed he attended a moderation session.99 Mr Roberts said they had to fit within guidelines established by the company relating to the payment of bonuses.100
[106] The evidence does support Santos’s contention that Field Team Leaders play a role in the evaluation of the performance of members of their team, and this evaluation can have an impact on matters such as team member’s bonus payments. The evidence is however that Field Team Leaders play a part in the process, they do not manage the whole process. The Full Bench in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board; [2010] FWAFB 3009 when considering such matters said as follows at paragraph 67:
“The MFESB relied in particular on what it alleged to be a conflict of interest between management employees and those whom they manage. Speaking generally there can be no doubt that such a conflict exists. To some extent the workplace relations system is based on the potential for conflict between employers and employees. In a world of corporations the employee manager stands in the shoes of the employer for many purposes including dispute prevention and resolution and the negotiation of terms and conditions of employment. We accept the potential for an entrenched conflict of interest to arise based on managerial responsibility if agreement coverage of operational employees extends into the senior management ranks. We recognise the potential for such conflict to arise even at lower levels of management but we have in mind conflicts of interest of a more substantial character arising at senior management levels. (my emphasis) We also have no doubt that conflict of interest considerations may be relevant in deciding whether the making of an order would promote the fair and efficient conduct of bargaining, whether the group was fairly chosen and whether it was reasonable to make the order.”
[107] I reject the notion that to the extent that Field Team Leaders play a role in performance reviews and assessment of bonus payments for Process Technicians, this means their interests are so materially conflicting and different from those that they supervise they should not bargain together with their employer. It is common for supervisors or leading hands to be consulted by more senior managers in many workplaces about such things, but that does not make such supervisors or leading hands managers in the true sense, and certainly not senior managers as contemplated in the UFU matter. The circumstances in this case are clearly distinguishable from the UFU matter in that the Full Bench was focussed on the senior management positions occupied by Commanders and Assistant Chief Fire Officers, and determined that those positions were a distinct organisational group given their management responsibilities. That can be contrasted with the operational and organisational connections between Field Team Leaders and Process Technicians that they work alongside.
[108] Overall the evidence does not support the picture that Mr Krueger sought to paint concerning the extent of the managerial, leadership, disciplinary or performance evaluation responsibilities of Field Team Leaders.
Working across areas
[109] Mr Chant said when he is required to work additional shifts he may be required to perform any role that he is suitably qualified for, which includes the role of Process Technician and Panel Technician. Mr Chant said he has been required to perform the role of Process Technician on a number of occasions when a process technician is absent and extra assistance is required. Mr Chant gave evidence that “we’re trying to be like self-managed teams..” 101
[110] Mr Noy said he has been required to relieve the Shift Superintendent on two occasions. He said he has only worked one over-cycle shift where he has worked as a Process Technician. 102 Mr Roberts said when he is required to work additional shifts; he may be required to perform any role that he is suitably qualified to perform. When performing additional shifts he covers whatever role needs coverage.
[111] Mr Roberts said he has been required to perform shifts in the role of Process Technician on a number of occasions when a Process Technician was/is absent or when extra assistance has been required. Mr Roberts accepted overcycle shifts were voluntary. Mr Felice said on occasion he may be required to perform the role of Superintendent or Process Technician.
[112] Mr Felice said the role he covers depends on what roles are required on the day. He said he has performed these roles. Mr Felice said he has been required to perform additional shifts in the role of Process Technician on a number of occasions when a Process Technician is absent.
[113] It was put to Mr Chant that he worked as a Field Team Leader everyday unless he volunteered to work on the overcycle roster and he agreed with that. 103 Mr Chant accepted the proposition that the overcycle roster was an extra roster put on from time to time to cover exceptionally busy periods associated with the commissioning of the plant.104 He also accepted that both Bechtel and Santos were responsible during the startup and commissioning phase for assigning work to Santos employees.105
[114] Mr Chant said employees are also required to come in and cover other employees when they are sick 106 He agreed he might be asked to work when a Process Technician is unexpectedly absent.
[115] Mr Chant said during the Commissioning of Train 1 they were just calling people “willy nilly, and we’d, yes, just use anybody we could and utilise their skills…”.
[116] Mr Chant accepted that when an overcycle roster is published spots are made available where coverage is required for each shift, and the roster identifies the particular skills and competency requirements that are needed for the available spots. 107 He also agreed the spots are filled on a voluntary basis. Mr Chant gave evidence that employees have been phoned at home and asked if they will work on an overcycle roster.
[117] Mr Chant gave evidence to the effect that demands such as occur during commissioning can also occur during a shutdown. 108
[118] Mr Chant gave evidence that when he was interviewed for the position he would come over to here (meaning Santos) if he could do three roles and that was agreed. 109
[119] There is a disconnect between the evidence of Mr Krueger concerning what he says Santos wants the role of Field Team Leaders to be and what the evidence supports that role to actually be.
[120] Whilst Santos aspires to Field Team Leaders being what it describes as the first line of management, it accepts they are covered by a modern award. Their involvement in monitoring performance of Process Technicians they supervise, and limited input into disciplinary processes, is not far removed from the conventional role of a leading hand, or supervisor working alongside those that they supervise.
[121] Field Team Leaders are the only Team Leaders at Job Grade 7, the other roles that include the expression ‘Team Leader’ are graded at Job Grade 8. Field Team Leaders also share the same Job Grade of 7 as Panel Technicians, and E/I Technicians who Santos accepts have no management responsibility. Field Team Leaders at Grade 7 are also a much larger group of 12, as compared to 2 grade 8 Maintenance Team Leaders or 2 Grade 8 E/I Team Leaders, or 4 Grade 8 Control Room Team Leaders. This grading below other Team Leaders does not support the claim that Field Team Leaders are part of management.
[122] Mr Krueger’s evidence may or may not be more indicative of the true position for the other Job Grade 8 Team Leader roles that sit above Job Grade 7 Field Team Leaders, however there were no witnesses called who worked in these roles and there is no evidence that any of these higher Grade 8 Team Leader roles wish to bargain. The AWU has not sought there inclusion in its application.
Panel Technicians
[123] The LNG Plant is monitored and controlled from a control room located at Curtis Island, in an area adjacent to the office area of the LNG Plant, which is all part of the same building. The Panel Technicians report to a Control Room Team Leader, who in turn reports to the Shift Superintendent.
[124] Santos submitted that a Panel Technician is able to direct any of the Process Technicians to take action in order to deal with or respond to an issue that the Panel Technician has identified with the LNG Plant. They also coach and develop other members of the Operations Team to optimise performance and commitment. This requires Panel Technicians to coach Process Technicians on technical issues and to explain the consequences of their actions in terms of the operations of the LNG Plant as a whole.
[125] Santos submit the role of Panel Technician is a fundamentally different role to the role of Process Technicians and the organisational reporting hierarchy within the Operations Team is also different in respect of Panel Technicians, who report to Control Room Team Leaders, and Process Technicians who report to Field Team Leaders. Santos also submits the role of Panel Technician is also fundamentally different to E&I and Mechanical Technicians.
[126] Santos argued that the Commission should find that, by reason of the unique role of the Panel Technicians and the marked operational and organisational distinction between that role and the roles of Process Technician and E&I and Mechanical Technician, the inclusion of Panel Technicians in the group proposed by the AWU to be covered by the agreement renders the combined group in the AWU’s proposed agreement a group that is not fairly chosen.
[127] Eight Panel Technicians filed statements in support of the AWU case, however 6 of the 8 ultimately appeared to give evidence representing half of the total number of Panel Technicians employed at the Santos LNG Plant. All six panel technicians in their statements described the roles of Process Technician, Panel Technician, Field Team Leader and Laboratory Technicians as interlinked.
[128] Mr Love said his history in the industry includes 3 and a-half years at Darwin LNG and two and a half years at Santos GLNG. He said on any shift we might be required to perform any role we are capable of regardless of substantive position. Mr Collins said he has spent 25 years working as an Instrumentation and Electrical Technician, predominantly in the power generation industry and three years in the oil and gas industry. Mr Hamilton said this was his first job in the hydrocarbon industry, and he had previously worked in a similar role as a duel panel/process technician. The role was a duel role and he has worked in that role at two previous workplaces. Mr Christmass had previously worked for BHP for two years and spent four years at Queensland Nitrates Management. Mr Linder said his background was in electrical with 4 years process experience. Mr Stevens said he had previously worked for 22 years in process industries, and has been in the gas industry for 2 and a half years.
Role
[129] Mr Love said part of his role was to monitor, stop and start the LNG process as required including considering and handling potential safety issues and emergency response. He said he communicates with Process Technicians in the field to discuss any action he requires them to take. Mr Love said he has been required to cover and fill in for the CCR Team Leader when he is on sick leave. Mr Love agreed when he worked additional shifts they were part of the over-cycle roster, or a call-in when required if someone is sick. 110 Mr Love said employees move between the areas to help each other out with the workload.111 He agreed employees volunteer to do this work.112
[130] Mr Collins said he works with Process Technicians to check or make adjustments to process or address issues if required. Mr Collins said he had not worked any additional shifts yet but understands he may be required to work additional shifts as a Panel Technician and/or a Process Technician. He said he has been required to relieve in Process Technician roles if someone is absent. (PN Mr Collins agreed work on overcycle rosters is voluntary. 113 It was put to Mr Collins that the times he worked as a Process Technicians was because Train 2 was not operational at the time. He said he agreed to an extent but also said that if there is a need for someone who has the expertise to identify an isolation point or to help with a permitting issue that you have the experience with, then we will help out there as well.114
[131] Mr Hamilton said as part of his role he monitors the plant via DCS. He said he reacts to data, alarm and/or information provided to him from the Process Technicians, the Field Team Leaders or the Laboratory Technicians. He said he controls the plant as the Panel Technician and interacts extensively throughout his shift with the roles listed above to ensure they maintain optimal running of the plant. He said he works in the field using tools as part of his role, often alongside Process Technicians. He said he did this for a shut down. 115 He said this occurred if there is extra manning or a plant down.
[132] Mr Christmass said his role is to monitor, stop and start the LNG process as required included safety related equipment and emergency response. He said he communicates with Process Technicians in the field to discuss plant conditions and changes he requires them to make. He said when required to perform additional shifts he may be required to perform any role for which he is suitably qualified as directed by the superintendent on the day. He said he was involved in issuing permits down at a permit hut when there was a major turnaround on the inlet, suction strainers. 116 He said he did this for a 5 shift block because they were undermanned at the time.117 He said it was not part of the overcycle roster.118
[133] Mr Linder said part of his role is to monitor and operate the plant via DCS. He said he interacts with Field Team Leaders and Process Technicians to check and/or make adjustments to the process of the plant and authorise permit isolations. He said he also interacts with Laboratory Technicians when they are in the field taking samples. He said he was a Process Technicians before becoming a Panel Technician. 119 Mr Linder said he had been told by his superintendent that they will spend, in the future, three months stints out in the field, as other people are stepped up to the panel position in backup roles.120
[134] Mr Stevens said that he receives instructions from the CCA leader. He said he communicates with and give and receives instructions from the Process Technicians. He said he also assists Laboratory Technicians in the field. He said he has been required to perform shifts as a Process Technician. Mr Stevens said on an over cycle shift he did the permits out in the plant in the field. 121 He said the company put out a request via text for extra help in the field.122 He said this occurs during shut downs and if there is no one to man the permit office and that this has occurred three or four times.123
[135] In terms of receiving instructions from Process Technicians Mr Stevens gave the example of if he asked someone to open a bypass around a little control value, he gives the instruction and they receive the instruction and tell him if they’ve actually completed the task, or if they couldn’t complete the task. Mr Stevens said he can go out as part of his normal day and give Process Technicians a hand isolating values and purging. He said if the plant is being turned off or shut down he will go outside into the field and help purge and do isolations. He said this happened during most shutdowns. 124
Process Technicians
[136] Of the 28 Process Technicians who filled statements only 7 were required for cross examination. All of the Process Technicians gave evidence that their roles were interlinked with the roles of Panel Technician, Field Team Leader and Laboratory Technician.
[137] Mr Millard said this was his first role in the LNG industry however he had previously worked in the Alumina refining and sugar milling industries. Mr Dunnett said he has worked in the gas industry for the past 2 and a-half years, and the process industry for 20 years. Mr Fisher said he had been working in the industry for approximately 30 years and across his career he had previously worked in the refining and chemical industries. Mr Chadwick said he had worked in the industry for 25 years. Mr Phillips said he had worked in the gas industry for the past 2 and a-half years, and prior to that he had worked in various industries over 28 years. He said throughout his career he had been employed in a variety of roles, including the roles of Panel Technician, Field Team Leader and Field Technician. Mr Boon said that he had previously worked as a Process Technician, Senior Process Technician, Panel Technician and Team Leader in the Hydrocarbons industry.
[138] Mr Millard said his role involves the outside operation of the Utility and Storage Loading areas. This includes routine checks and rounds, isolation preparation, permit to work issuing, permit coordinating, mooring, unmooring, ship loading activities, manual valve operation, starting and stopping air compressors / pumps / turbines and associated auxiliary equipment. He said he is also required to perform other duties his Field Team Leader and the Panel Technician require to ensure the safe and efficient operation of the plant.
[139] Mr Millard said that he has been required to perform extra shifts in other roles including the Permit to Work Coordinator role, Field Team Leader role and Process Technician role. He said on occasion he has been required to fill in for the Field Team Leader on his crew and the Permit Coordinator, and also provide coverage for the Panel Technician for meal breaks.Mr Millard said in oral evidence he hadn’t done a full shift as Team Leader just bits and pieces of shifts. 125 He agreed he did not have responsibility for performance reviews and extra administrative responsibilities were confined to doing a shift log to hand over to the next shift.126 He agreed this was also the case of allocation of work and disciplinary matters. He said that acting up the Field Team Leader role has occurred three times for him and it is rotated amongst the crew of four.127 He said this happens if the Team Leader is on holidays or sick leave or training duties.
[140] Mr Millard also said he covers the Panel Technician on his meal breaks and this has been happening consistently for the whole time he has been employed. 128
[141] Mr Dunnett said in his role he receives instructions and work from his Team Leader. This includes work in the field operating and using tools as well as permit and isolation preparations. He said he is also required to communicate with Panel Technicians and give and receive instructions from them. When required he said he also assists Laboratory Technicians in the field.
[142] Mr Dunnett said he has performed extra shifts as Process Technician and also the Permit Co-ordinator role. He said he has also been required to perform the Field Team Leader role when his Field Team Leader has been absent from work. Mr Dunnett said that when he had filled in as Field Team Leader he ran a morning pre-start for the group, a safety prestart meeting, organised and handed out tasks to the Process Technicians for the day, ran a handover log in the afternoon to hand over to the oncoming crew. 129 He said he had to do a lot of paperwork such as looking through procedures that have been handed over to review and preparing isolations. He agreed he had not done scheduling work. He said he actually spent time as an acting Team Leader for a period of 9 months.130 He said if someone is away or sick “we”, and he clarified other members of the work crew were required to step up as a Field Team Leader. He agreed that employees had a choice whether they would be prepared to act in the role.131
[143] Mr Fisher said his job involves the performance of daily inspection rounds of his area and the issuing of work permits in his area. He said a part of his role includes trouble shooting any process issues, which is done in consultation and discussion with Panel Technicians and the Field Team Leader. He said he had not worked any extra shifts but hehad Field Team Leaders and Panel Technicians from other crews come on his crew and fill in as Process Technicians. He agreed this had occurred as part of an over cycle roster. 132 He also said Field Team Leaders and Panel Technicians in the field assisting and doing outside operations during shut down.133 He said a shutdown was planned in April for Train 1.134
[144] Mr Robertson said his roles include monitoring and adjusting the running of plant in the field, in conjunction and communication with the Panel Technicians. He said he discusses what tasks are priorities for the shift with his Field Team Leader and he carries out those tasks accordingly, seeking assistance from the Field Team Leader and/or Panel Technicians as required. He said he has been requested to relieve the Field Team Leader when they are absent from work. He said this has happened on two occasions, once in the previous week. 135 This was to cover an absence. He said the only work he did as Team Leader was the handover at the start of shift and then prepares a handover for the end of shift.136
[145] Mr Chadwick said as part of his role he is required to perform a range of duties in the field and he is required to interact with all positions, including Panel Technicians, Field Team Leaders and Laboratory Technicians on a daily basis. He said he has been required to relieve other positions when people are absent including Field Team Leader and Panel Technician role.
[146] Mr Chadwick agreed in his reference in paragraph 9 of his statement he was referring to performing duties of for example a Field Team Leader who was absent such as pre-start and handover. He said the other duties as a Team Leader would be organising and giving jobs to do and isolations. 137 Mr Chadwick agreed that he had never been asked to perform the full time role of Panel Technician but had on three occasions been asked to sit on the panel while the Panel Technician had gone or smoko or for a coffee.138 He said he has been on the panel for years in other places so it was not a matter of needing to get a feel for what it is like to be on a Panel Technician. Mr Chadwick said extra shifts are required for over cycle and for shutdowns and shutdowns is going to be one of the main over cycle. He said that is everyone, including Team Leaders, will be called in and they will be hands on out in the field.139 He said Panel Technicians will also be hands on in the field, connecting hoses, opening and closing valves, because that is when a high amount of labour is needed and there will be no panels to operate.140
[147] Mr Phillips said a typical work day includes the performance of routine and non-routine tasks and the interpretation of data and processing of information. He said he issues permits, places isolations, gives and receives instruction from the Panel Technicians and follows direction from the field team leader. He said all of the roles interact through each and every shift, and he said he provides assistance to the Laboratory Technicians when and where required if they need assistance to take samples.
[148] Mr Phillips said he had been required to relieve the Field Team Leader and perform the Field Team Leader role when his Field Team Leader is absent. He said this occurs occasionally. 141 Mr Phillips said when he fills in for a Team Leader he gives instructions for work routes, monitored work, filled out log books, shift reports, work orders, the same duties as the Team Leader.142 He agreed he does not have responsibility for performance management or discipline.
[149] Mr Boon said that he has been required to perform the Field Team Leader role when his Field Team Leader has been absent. He said in his role he receives a handover at the start of his shift from the outgoing crew detailing the current condition of the plant. He said he monitors his area by doing pant checks and endorsing work permits for work in his area. He said he liaises with the Field Team Leader who gives him tasks to complete in his area. He said he also liaises with the Superintendent and Panel Technician for his area to monitor the plant and exchange information about work that is required to be completed.
[150] Mr Boon clarified that since February (2016) he had been employed as a Field Team Leader. 143 He had acted up before that while a Process Technician. He said this occurred a fair bit over the six months before Christmas. He said when he did step up into the role the work he would normally do as “Similar to just the leading hand type role.”144 Mr Boon said that there is very little administrative work that you do as a Field Team Leader. Mr Boon said he did not do performance management, counselling work or disciplinary responsibilities.145
[151] When asked what Mr Boon meant by saying all the roles being interlinked, he replied as follows:
“That we work as a team basically, all those sort of – in all those roles. Last week one of the lab guys, there are actually two of them, it was Kim and Jim, they showed us how to do the mercury testing, so it was a job that they had previously done. So we are part of – we work with them. It’s not a full time relationship, but they are there and that we can do their work as well as do work on the panel. There’s lots of guys. I have got one of the guys in my crew, he is doing the panel replacement sort of duties on controls. We did permit sort of duties and that can be anybody. So, yes, you can do a bit of everything. So we are cross skilled across all the roles.”
[152] Panel Technicians are engaged at Grade 7 level, the same level as E/I Technicians that Santos does agree to include within scope, and the same level as Field Team Leaders that Santos does not agree to include in scope. The exclusion of Panel Technicians cannot be justified.
[153] Much of the Santos argument rests on the premise that mostly the occurrences of Field Team Leaders, Panel Technicians and Process Technicians, working alongside each other, working on overcycle rosters in each other’s roles, covering each other’s roles for sick leave, and generally assisting each other with workload will come to an end when start up and commissioning is completed and Bechtel’s role is over. I do not see from the evidence that at some point in the foreseeable future these workers will somehow become siloed from each other at the end of commissioning and start up. In fact I would have thought from a management perspective that would be discouraged. In any event I cannot draw conclusions on what Santos speculates will occur at some point in the future. I can only deal with the evidence before me.
[154] Santos has also placed emphasis on the fact that when workers perform work in each other’s roles they do so on a voluntary basis. There is no dispute that the work is done voluntarily however I fail to see how that makes much difference given the fact that the evidence points to work having frequently been done that way, and continuing to be done that way.
[155] I do accept that the ‘all hands on deck’ scenario that has commonly been referred to and has generally been accepted by everyone as a feature of start-up and commissioning will be less frequent, but the reality is Santos has a workforce, particularly the Field Team Leaders, Panel Technicians and Process Technicians who are multi-skilled. Many are cross trained and as a practical feature of their overlapping and interlinked roles collaborate, help each other out, perform duties that fall within each other’s job descriptions, cover each other, including when sick or on other forms of leave. The evidence was also fairly clear that in the event of future shut downs which are inevitable the same practices that have been adopted with over cycle rosters during commissioning will occur again during shut downs returning to the ‘all hands on deck’ approach for shut downs. It does not reflect reality to suggest that at the end of commissioning some kind of Chinese wall will appear between these employees preventing there normal interactions and interdependence. The evidence supports the claims made by all of the AWU witnesses that the roles of Field Team Leader, Panel Technician and Process Technician are interlinked. Laboratory Technicians are in a slightly different category that I will deal with below.
Laboratory Technicians
[156] Laboratory Technicians are less connected to the other groups. The Laboratory is located at Curtis Island approximately 600 to 800 metres away from the part of the processing facility where the LNG trains are located. The Laboratory is a specialised work area, completely separate from both the Warehouse and the Maintenance Workshop which are located in the same building.
[157] The purpose of the Laboratory is to provide laboratory services that are required by the LNG Plant, namely, the sampling and testing (which includes analysis) of gas that is produced by the LNG Plant and of other components (eg chemicals) that are either used in the production process or are by-products of the production process.
[158] Santos submits that Laboratory Technicians have very limited interactions with persons outside the Laboratory Team and that from time to time, the Laboratory Technicians will have some interaction with one of the Process Technicians if the Laboratory Technician needs assistance from one of the Process Technicians to obtain a sample from within the LNG Plant.
[159] Santos accepts Laboratory Technicians may interact with Process Technicians, Panel Technicians, people from Maritime Safety Queensland, independent surveyors, the Shift Superintendents and Electrical/Instrumentation Technicians during the course of ship-loading, or when there is a difficulty experienced during ship-loading that the Laboratory Technicians need assistance with.
[160] Santos argues that there is no material organisational relationship between Laboratory Technicians on the one hand, and Process Technicians, Electrical & Instrumentation (E&I) Technicians or Mechanical Technicians, on the other. Therefore the Commission should conclude that, by reason of their operational and organisational distinction the inclusion by the AWU of Laboratory Technicians in the group proposed to be covered by their agreement renders the combined group in the AWU’s proposed agreement a group that is not fairly chosen.
[161] Santos also says that given their relatively small number their participation in the conduct of bargaining is likely to be overshadowed by the attention given to the terms appropriate for Process Technicians, E&I Technicians and Mechanical Technician which would render the bargaining process unfair and inefficient for the Laboratory Technicians, who may be required to attend lengthy meetings in which there is little or no discussion about terms and conditions specific to their role.
[162] I do not accept the Santos argument on this point. The evidence is two of the three laboratory technicians want to bargain, and want to be included in the bargaining the AWU proposes. They sit at a lower pay grade of grade 6 than E/I Technicians at grade 7 who Santos has agreed to bargain with, and sit at the same pay grade as the other two categories of technicians being process and mechanical who Santos has agreed to bargain with.
[163] When determining whether it would be fairer or more efficient to allow Laboratory Technicians to join with the group of 102 other employees under the AWU scope (made up of 48 Process Technicians, 22 Mechanical Technicians, 8 E/I technicians, 12 Panel Technicians and 12 field team leaders) or to order as sought by Santos a scope of 78 employees (made up of 48 Process Technicians, 22 Mechanical Technicians, and 8 E/I Technicians but excluding the 2 laboratory Technicians) I am satisfied that the AWU proposal is fairer and more efficient.
[164] Laboratory technicians clearly fall within the classification group of Hydrocarbons Industry Operations and Processing Employees as described in Schedule B.2.4 of the Hydrocarbons Industry (Upstream) Award 2010. In other words they are not just covered by the Award; they sit inside the same subgrouping within the Award as Field Team Leaders, Panel Technicians and Process Technicians. A decision to grant the order sought by Santos would not promote fair or efficient bargaining because it would cause Laboratory Technicians to be outside the scope of bargaining without reasonable justification.
Conclusion on S.238(4)(b)
[165] The evidence supports the fact of Field Team Leaders, Process Technicians and Panel Technicians all working closely as a team. The evidence also supports a reasonable level of operational interaction between Process Technicians and Laboratory Technicians. The Field Team Leader role is more akin to a leading hand than a first line manager as has been argued by Santos. This is consistent with all of the witness evidence of the employees working in these roles. Six of the seven Process Technicians called to give evidence said they had at different times acted up in the role of a Field Team Leader. This evidence of so many employees acting up in the role undermines the claim that the Field Team Leader is a management role more closely aligned to the Shift Superintendent, and supports the view that it is more like a conventional working leading hand with supervisory functions. While it is true, when employees acting in the role of Field Team Leader they do not take on the full scope of the role if it is for a limited time. However, the fact remains they are performing most of the day to day functions that would otherwise be the role of the Field Team Leader.
[166] Santos also pointed to the prospect that some Team Leaders in the Operations Team (i.e Field Team Leaders) will be involved in the bargaining, while others in the Operations Team (i.e Control Team Leaders) and the Maintenance Team (i.e Maintenance Team Leaders) will have to initiate a separate bargaining process if they are seeking to negotiate an enterprise agreement, which may generate duplication of effort and waste of resources in dealing with Team Leaders in separate negotiations.
[167] In the course of the hearing I asked Santos’s first witness Mr Goldup some questions regarding the Pay Grades of employees within the organisational chart attached to his statement. 146147
[168] I also asked Mr Krueger some questions about the numbers of employees in various roles in the classification structure. 148 Santos offered to provide a chart containing the breakdown of total numbers of employees in each classification.149 This was subsequently provided as an Aide Memoire in relation to job grades. A table in the Aide Memoire included the following information:
Position | Total Number | Job Grade |
Process Technician | 48 | 6 |
Panel Technician | 12 | 7 |
Field Team Leader | 12 | 7 |
Control Room Team Leader | 4 | 8 |
Laboratory Technician | 3 | 6 |
Senior Laboratory Analyst | 1 | 7 |
Mechanical Technician | 22 | 6 |
Maintenance Team Leader (E/I Team Leaders and Mechanical Team Leaders) | 4 | 8 |
E/I Technician | 8 | 7 |
Workshop Supervisor | 2 | 8 |
Permit to Work Co-coordinator | 2 | 7 |
[169] A covering letter sent with the Aide Memorie stated the following in regard to the Aide Memorie. Firstly, the job grade for each role is allocated substantially based on the number of direct reports to the person who holds the role. Secondly, the job grade for each role is not determined by a qualitative assessment of the nature of the responsibilities associated with the particular role. Finally, the Laboratory Technicians and the Senior Laboratory Analyst are different job grade streams. Job grades allocated to those roles are not horizontally aligned with job grades allocated within different streams.
[170] It is evident from an attachment to one of the statements of Mr Krueger 150 that there are only two streams, Operations and Maintenance, and Engineering.
[171] Santos pressed in closing submissions that the Job Grades should not be relied upon by the Commission in inform its deliberations, particularly in regard to Laboratory Technicians. 5 of the 6 groups are in the same stream of Operational and Maintenance so I can see no basis to disregard the allotted Job Grades in the same stream. In the case of Laboratory Technicians the main submission as I understood it to disregard their Job Grade was because the Engineering Stream was not horizontally aligned with the other stream. I was not provided any evidence about why employees designated Pay Grade should be ignored. In the circumstances I have taken account of the Job Grade of Laboratory Technicians as being Job Grade 6, but have not attributed significant weight to it. It is one of a number of considerations I have had regard to in reaching the conclusion that it would promote the fair and efficient conduct of bargaining for Laboratory Technicians to be included within scope.
[172] In conclusion in regard to s.238(4)(b), for all of the reasons set out above I have concluded that making the AWU order will promote the fair and efficient conduct of bargaining, whereas making the Santos order will not.
Subsection 238(4)(c) and Section 238(4A)
[173] Having concluded that Santos have not satisfied the requirements of s.238(4)(b) there is no need to further consider Santos’s application and it must be dismissed. It remains for me to determine if the AWU application satisfies the remaining requirements of s.238.
[174] Santo’s criticism of the AWU group is that it includes firstly, a ‘sub-group’ of Santos’ first level management employees (i.e Field Team leaders, being one category of Team Leaders); secondly, a small group of highly skilled and specialised workers who work in and are responsible for running the Control Room of the LNG Plant (i.e Panel Technicians), but not their Control Room Team Leaders; and finally Laboratory Technicians, who work in the Laboratory and who are not engaged in either the Operational or Maintenance Teams (and who do separate and distinct work) and have very little interaction with any other members of the AWU Group. To a large extent my findings under s.238(4)(b) has already addressed reasons why I do not accept Santos’s submissions regarding s.238(4)(c) either.
[175] The obligation on the Commission under s.238(4)(c) is to consider whether the group of employees who will be covered by the agreement proposed to be specified in the scope order is “fairly chosen” and it must “take account” of geographical, operational or organisational distinctness in deciding that matter; s.238(4A). This determination of this question involves the exercise of discretion.
Geographically, Operationally or Organisationally Distinct
[176] The Full Bench in The Australian Workers’ Union v BP (Kwinana) Pty Ltd[2014] FWCFB 1476 in regard to the paragraph 238(4)(c) said as follows.
“[11] The obligation is to “take account” of geographical, operational or organisational distinctness in deciding whether the group to be covered by the proposed enterprise agreement was “fairly chosen”. A particular type of distinctness may not exist in respect of a proposed group in a particular case, and yet, having taken account of that absence, it may still be clear, that the group has been fairly chosen in all the circumstances of the particular case.”
[177] Further in the decision the Full Bench also stated:
“[14] Depending upon the circumstances of the particular case, there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.
[15] Enterprise agreements that cover all employees in a business are commonplace. Almost all such businesses will have organisational structures that will allow organisationally distinct groups to be identified. Many of those businesses contain operationally distinct groups. Yet it will rarely be the case that a ‘whole of enterprise’ group would be unfairly chosen.
[16] It follows that the weight to be attached to the geographical, operational or organisational distinctness of groups with a broader group will be neutral in determining whether an order ought to be made, unless there are particular features of, or circumstances associated with, that distinctness that render the broader group one that is not fairly chosen.”
[178] My findings made above indicate my acceptance that Field Team Leaders, Panel Technicians and Process Technicians are operationally distinct.
[179] There can be no question that a group encompassing Field Team Leaders, Panel Technicians, Process Technicians, Electrical and Instrumentation Technicians, Mechanical Technicians and Laboratory Technicians is geographically distinct. (see The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476 paragraph 13.
[180] Clearly Santos itself did not see any difficulty with the inclusion of Process Technicians from the operational side of the Operations and Maintenance Stream being included with Maintenance and E/I Technicians from the Maintenance side of the Operations and Maintenance Stream. As I have concluded that Process Technicians are operationally linked to the Field Team Leaders and Panel Technicians, I see no difficulty with the 5 groups bargaining together given their geographical and organisational distinctness, and the rejection of the Santos argument that Field Team Leaders and Panel Technicians are operationally distinct from each other, and from Process Technicians.
[181] In regard to Santos’s argument that the inclusions of Field Team Leaders is arbitrary given other Team Leaders will not be included, I refer back to paragraphs 121 and 122 of this decision and the characteristics of Field Team Leaders that distinguish them from other Team Leaders at higher grades.
[182] As earlier noted all six categories of employees are covered by the same one modern award being the Hydrocarbons Industry (Upstream) Award 2010. A scope order as sought by the AWU will not result in confusion as the delineation of the 6 discrete classification groupings to be included are clearly understood. No employee in the group is engaged at a job grade higher than Grade 7.
[183] Of the six categories of employee, 5 are Technicians of various titles, and one is titled a Field Team Leader. Field Team Leaders share the Operations and Maintenance Stream with four of the other categories with the only exception being Laboratory Technicians. Field Team Leaders share the same Job Grade as Panel Technicians within that stream, and both report to the Shift Superintendent, the Field Team Leader directly, the Panel Technician through the Grade 8 Control Team Leader. There are several further layers of management above any of these 5 groups of employees within the Operations and Maintenance Stream that all ultimately reports to the Plant Manager.
[184] The Laboratory Technicians in the Engineering Stream are, as is obvious from their title, also Technicians just as four of the five groups to be included from the Operations and Maintenance Stream are Technicians. When reviewing the position description for Laboratory Technicians they share some commonalities with the other Technicians employed at the Plant. They are covered by the Hydrocarbons Industry (Upstream) Award 2010 unlike the Analyst or Chemist above them in the Engineering Stream.
[185] The purpose of the position is stated as being to “Provide laboratory sampling and analysis services to support the operations of the GLNG Facility”. Essential qualifications for the role are described as being a certificate III in Laboratory Skills. Preferred qualifications are a Certificate IV or a Diploma. Key internal relationships include operations and engineering staff. Whilst Mr Potter states laboratory technicians have limited interactions with persons outside the laboratory team he acknowledges some interaction with process technicians for the purposes of obtaining samples. 151 Mr Potter also acknowledged someone from the Maintenance Team, Operations Team or an Engineer may approach a Laboratory Technician and ask for ad hoc sampling and testing.152 Mr Potter gave other examples of interaction between Laboratory Technicians and other employees at the plant.153
[186] It is evident from Mr Potter’s statement the role is principally concerned with sampling and testing. It is also evident that sampling and testing is done at the LNG Plant (i.e the “Analytical Requirements”) for the LNG Plant. The Analytical Requirements are either “Process” (i.e relate to the process of gas production) or “Environmental” (i.e they are required in order to ensure that the LNG Plant complies with its environmental obligations.
[187] Whilst laboratory technicians might be organisationally distinct from the other 5 categories of employees in that they are employed in a different steam, operational requirements mean that they interact with employees in all streams in order to perform their role, and they are therefore at least operationally connected to the other groups. This was particularly evident from the evidence of Process Technicians.
[188] I have taken account of whether the group as proposed by the AWU is geographically, operationally, or organisationally distinct and am satisfied based on my findings regarding the characteristics of the AWU group that it is fairly chosen.
Subsection 238(4)(d)
[189] Santos submits that once a proposed group has been assessed to be fairly chosen within the meaning of s.238(4)(c) and (4A), the issue becomes whether it is reasonable in all the circumstances to make the order; s.238(4)(d). The AWU submits that it is reasonable in all the circumstances to make their order.
[190] Section 238(4)(d) does not define the concept of reasonableness for the purpose of the section. It is submitted that all that is required is that the order be fair and sensible having regard to the circumstances of the case and the purpose of the bargaining provisions of the Act. Santos submits that the group proposed by the AWU is not fairly chosen, is not sensible, and is characterised by the arbitrary and discriminatory inclusion of a subgroup of Team Leaders. As is evident from the findings above I have rejected those arguments. I am satisfied it is reasonable in all the circumstances to make the order as sought by the AWU. A separate order will be issued with this decision.
COMMISSIONER
1 Exhibit 29 Witness statement of Justin Hansen
2 Exhibit 30 Witness statement of Nathan Baillie
3 Exhibit 31 Witness statement of Michael Casanovas
4 Exhibit 32 Witness statement of Lindsay Castles
5 Exhibit 33 Witness statement Joshua Campbell
6 Exhibit 34 Witness statement Miranda Crossley
7 Exhibit 35 Witness statement of Hayley Cullen
8 Exhibit 36 Witness statement of Jarrod Ferguson
9 Exhibit 37 Witness statement of Stephen Flink
10 Exhibit 38 Witness statement of Fridbjorn Hjartarson
11 Exhibit 39 Witness statement of Wayne Kennedy
12 Exhibit 40 Witness statement of Peter Kennings
13 Exhibit 41 Witness statement of Christopher Kukl
14 Exhibit 42 Witness statement of Brendan Pangrazio
15 Exhibit 43 Witness statement of Brooke Pangrazio
16 Exhibit 44 Witness statement of Timothy Primavera
17 Exhibit 45 Witness statement of Harley Smith
18 Exhibit 46 Witness statement of Vivian Smith
19 Exhibit 47 Witness Statement of Nicolas Spray
20 Exhibit 48 Witness Statement of Andrew Stowe
21 Exhibit 49 Witness Statement of Mick Thompson
22 Exhibit 1 Statement of Anthony Beers
23 Exhibit 5 Statement of Graham Chant
24 Exhibit 12 Witness Statement of Michael Millard
25 Exhibit 13 Witness Statement of Shane Love
26 Exhibit 14 Witness Statement of Jonathon Thomas Roberts
27 Exhibit 17 Statement of Scott Collins
28 Exhibit 19 Witness Statement of Robert Hamilton
29 Exhibit 20 Witness Statement of Graham Dunnett
30 Exhibit 21 Witness Statement of Graham Fisher
31 Exhibit 22 Witness Statement of Jason Robertson
32 Exhibit 23 Witness Statement of Bradley Chadwick
33 Exhibit 24 Witness Statement of Anthony Phillips
34 Exhibit 28 Statement of Anthony Fleice
35 Exhibit 54 Statement of Sean Christmas
36 Exhibit 55 Statement of Thomas Linder
37 Exhibit 56 Statement of Rodney Scott Stevens
38 Exhibit 57 Statement of Glenn Noy
39 Exhibit 2 Witness Statement of Mark Richard Goldup
40 Exhibit 2 Witness Statement of Mark Richard Goldup
41 Exhibit 3 Second Statement of Mark Richard Goldup
42 Exhibit 18 Witness Statement of Gavin John Potter
43 Exhibit 25 Statement of Robert Krueger dated 05/02/16; Exhibit 26 Statement of Robert Krueger dated 04/03/16
44 PN2729-2735
45 Exhibit 25 Statement of Robert Krueger dated 05/02/16, paragraph 46 to 54
46 Exhibit 25 Statement of Robert Krueger dated 05/02/16, paragraph 55 to 61
47 PN 1679-1687
48 Exhibit 25 Statement of Robert Krueger dated 05/02/16, paragraph 60; Attachment RK 6
49 PN 1887-1889
50 PN 2736-2743
51 PN 2632
52 PN 2651
53 PN 104
54 PN 1620
55 Exhibit 5 Statement of Graham Chant
56 Exhibit 14 Witness Statement of Jonathon Thomas Roberts
57 Exhibit 28 Statement of Anthony Fleice
58 Exhibit 57 Statement of Glenn Noy
59 Exhibit 58 Statement of Gavin Boon
60 PN 353
61 PN 357
62 PN 720
63 PN 2410 -2411
64 PN 1980
65 PN 1993
66 PN 469
67 PN 474
68 PN 481
69 Exhibit 25 Statement of Robert Krueger dated 05/02/16, paragraph 105 to 118
70 Exhibit 6 Adair’s Action Centred Leadership Course for New Leader Orientation
71 Exhibit 7 Leader Guide to Unlocking Performance and Potential
72 PN 536-538
73 PN 549
74 PN 2427
75 PN 2430
76 PN 911-912
77 Exhibit 8 Counselling and Discipline Policy
78 PN 606
79 PN 617 – 633
80 PN 635
81 PN 2467-2472
82 PN 2473
83 PN 2483
84 PN 901
85 PN 908
86 PN 916
87 PN 924
88 PN 981
89 PN 989
90 PN 1084
91 PN 1021
92 PN 2022
93 PN 2027
94 PN 665-667
95 PN 680-630
96 PN 688 – 699
97 PN 928
98 PN 950
99 PN 953
100 PN 958
101 PN 718
102 PN 2410
103 PN 396
104 PN 408-411
105 PN 419
106 PN 425
107 PN 427-430
108 PN 435
109 PN 404
110 PN 826
111 PN 846
112 PN 850
113 PN 1113
114 PN 1141
115 PN 1280
116 PN 2217
117 PN 2220
118 PN 2221
119 PN 2296
120 PN 2306
121 PN 2353
122 PN 2356
123 PN 2363
124 PN 2376
125 PN 767
126 PN 770
127 PN 787
128 PN 792
129 PN 1315
130 PN 1321-1328
131 PN 1343
132 PN 1385
133 PN 1388
134 PN 1391
135 PN 1411
136 PN 1415
137 PN 1477
138 PN 1483
139 PN 1523
140 PN 1526
141 PN 1586
142 PN 1589
143 PN 2500
144 PN 2514
145 PN 2520
146 Exhibit 2 Witness Statement of Mark Richard Goldup; Attachment MRG 1
147 PN 273 -275
148 PN 1848-1864
149 PN 1867-1879
150 Exhibit 25 Statement of Robert Krueger dated 05/02/16; Attachment RK 10
151 Exhibit 18 Witness Statement of Gavin John Potter, paragraph 62-70
152 Exhibit 18 Witness Statement of Gavin John Potter, paragraph 97
153 Exhibit 18 Witness Statement of Gavin John Potter, paragraph 98-100
Printed by authority of the Commonwealth Government Printer
<Price code A, PR577218>
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