Australian Workers' Union, The v Superior Energy Services (Australia) Pty Ltd
[2023] FWC 2406
•20 SEPTEMBER 2023
| [2023] FWC 2406 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Workers' Union, The
v
Superior Energy Services (Australia) Pty Ltd
(B2023/995)
| COMMISSIONER ALLISON | MELBOURNE, 20 SEPTEMBER 2023 |
Proposed protected action ballot – whether applicant genuinely trying to reach an agreement – whether extension of time for notice of action justified – whether proposed questions should be omitted on safety grounds
The Australian Workers’ Union (AWU) has applied under s437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. The application seeks to ballot certain employees of Superior Energy Services (Australia) Pty Ltd (the Company) who are members of the AWU and who will be covered by the proposed enterprise agreement.
The Company has objected to the application on the grounds that the AWU is not genuinely trying to reach agreement with the Company.
Alternatively, the Company has submitted that if a protected action ballot order is made exceptional circumstances exist that warrant the period of written notice referred to in s412(2)(a) of the Act being extended to 5 working days.
The Company has further submitted that if a protected action ballot order is made, proposed questions 8, 9 and 11 of the draft ballot should be omitted from the ballot order on the grounds of safety concerns.
The matter was allocated to Chambers on 19 September 2023 and heard later the same day. Ms Aksu and Mr Jones appeared for the AWU. Mr Bradford and Ms O’Brien from Australian Resources and Energy Employer Association (AREEA) appeared with Mr Skeen, Mr McLeod and Mr Marsh for the Company.
The material before me in this matter, which I have taken into account in making my decision, consists of the initial application and statutory declaration of Mr Jones, the Company’s outline of submissions, the witness evidence of Ms O’Brien and Mr Marsh for the Company, including the written witness statement of Mr Marsh, the witness evidence of Mr Jones on behalf of the AWU, the Company minutes of bargaining meetings dated 19 April 2023 to 10 August 2023, and the letter dated 5 July 2023 from the Company to the AWU regarding “Good Faith Bargaining Concerns”.
I intend to address each of the matters raised by the Company in paragraphs 2, 3 and 4 above in that order.
Genuinely Trying to Reach Agreement
Under s443(1)(b) of the Act the Commission must be “satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted” prior to making a protected action ballot order.
The Company submitted that the Commission should not make a protected action ballot order because the AWU was not genuinely trying to reach agreement.
Evidence
In considering this matter, it is important to outline the history of bargaining to date. I have set out the relevant history below.
a. Bargaining Meetings
The parties have engaged in 8 bargaining meetings on the following dates:
19 April 2023
2 May 2023
24 May 2023
7 June 2023
12 July 2023
19 July 2023
26 July 2023; and
10 August 2023
Detailed minutes of the above meetings collated by the Company show that a number of claims were discussed at each meeting, including discussion relating to the revision and reduction of claims.
On 18 September 2023 the AWU wrote to the Company seeking to schedule further bargaining meetings.
b. Good Faith Bargaining Letter
The bargaining meetings had initially been scheduled on a fortnightly basis. Following the meeting on 7 June 2023, Mr Jones indicated that he would go back to AWU members to receive feedback. The Company sought to meet the following week. Mr Jones declined this invitation, and subsequently cancelled the following two scheduled meetings, without providing alternative dates.
On 5 July 2023, Ms O’Brien, on behalf of the Company wrote to the AWU raising Good Faith Bargaining Concerns relating to the AWU’s failure to attend bargaining meetings (“the Good Faith Bargaining Letter”).
Mr Jones responded to the Good Faith Bargaining Letter on 7 July, and meetings promptly resumed. Following the Good Faith Bargaining Letter, the parties attended a further 4 meetings on 12 July, 19 July, 26 July and 10 August 2023.
c. Redundancy Claim
At the meeting on 19 July 2023 the AWU revised its redundancy claim. The meeting minutes for 19 July 2023 state the following in relation to the matter:
“[The Employee Representative] explained employee’s (sic) request regarding redundancy entitlements and provided a different claim to what was described in AWU claims on 5 June 2023.”
The parties’ evidence differed on how much information was provided to the Company in relation to the redundancy claim. I am prepared to accept the Company’s evidence that they required further details to understand the claim properly.
The Company sought further details regarding the redundancy claim as evidenced in the minutes from 19 July 2023.
Further details were not provided on the meeting on 26 July 2023. The minutes from that meeting provide:
“[Mr Jones] explained AWU did not have claim to present in writing to negotiation committee due to family emergency which occurred that day.....
Outstanding Actions
…
[Mr Jones] to email new redundancy claim to [Company] ahead of next meeting for Company’s consideration.”
Further details were not provided to the Company before or at the meeting on 10 August 2023. The minutes of that meeting provide as follows:
“[The Company] advised that there would be no changes to the redundancy provisions from those contained in the draft Agreement tabled on 26 July 2023.”
No further details have been provided to the Company regarding the revised redundancy claim to date.
d. Proposed Agreement Vote and PABO application
The Company put out a proposed agreement for a vote with the access period commencing 28 August 2023. The vote was conducted on 5 September 2023. The majority of employees voted against approval of the proposed agreement.
Neither the Company nor the AWU sought to meet between the agreement vote and 18 September 2023.
On 18 September 2023 the AWU applied for a protected action ballot order which is subject to these proceedings.
On 18 September 2023 the AWU wrote to the Company seeking to schedule further bargaining meetings.
e. Key Outstanding Issues
Ms O’Brien identified the key outstanding issues from the Company’s perspective as the rate of pay, income protection insurance and rate of pay for training.
Mr Jones identified the key outstanding issues from the AWU’s perspective as the rate of pay, superannuation entitlements, and conditions surrounding off-cycle training.
Submissions
The Company submitted the AWU was not genuinely trying to reach agreement with the Company on two key grounds:
The AWU’s failure to attend a number of meetings between 7 June 2023 – 12 July 2023, resulting in the Good Faith Bargaining letter dated 5 July 2023 (see paragraph 15 above).
The AWU’s failure to reveal details of an updated redundancy claim.
In relation to the latter point, the Company sought to rely on the fact that the AWU had not yet submitted details to the Company about the updated redundancy claim and the fact Mr Jones, in evidence, was not able to clearly detail the redundancy claim further than indicating it was the same redundancy provisions as in the “Maersk H2S Agreement.” Mr Bradford relied on a passage from the Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia[1] (replicated below at paragraph 32) to argue the AWU’s failure to clearly articulate the redundancy claim revealed they were not genuinely trying to reach agreement.
The AWU submitted it had previously and was continuing to genuinely try to reach agreement with the Company. The AWU pointed to the number of meetings attended by the AWU; evidence that the AWU had condensed and revised its claims; the fact that after the Good Faith Bargaining Letter the AWU attended a further 4 meetings with the Company; the fact that their members had voted a proposed agreement down; and the AWU offer to meet with the Company for further meetings. The AWU submitted that failure to provide details of the revised redundancy claim was a minor issue that they would rectify, and that in the meantime further bargaining meetings could be used to progress negotiations.
Consideration
The Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine), considered the concept of “genuinely trying to reach an agreement” for the purposes of s.443(1)(b):[2]
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.
(Underlining added)
As noted above, Mr Bradford sought to rely on [32] of Total Marine, in particular pointing to the underlined sentences, to argue that the AWU’s failure to properly articulate the revised redundancy claim established the AWU was not genuinely trying to reach agreement.
The Full Bench in Esso Australia Pty Ltd v AMWU & Ors relevantly made the following observations about the decision in Total Marine.[3]
“[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).”
These authorities establish that whether an applicant “has been, and is, genuinely trying to reach an agreement”, is a question of fact to be decided having regard to all of the facts and circumstances of the particular case.
I have considered the circumstances of the bargaining to date put to me. I consider the following facts particularly relevant:
The number of bargaining meetings attended by the AWU, including 4 meetings which occurred after the Good Faith Bargaining Letter;
That both the Company and AWU have identified key outstanding claims that are separate to the redundancy claim;
The fact that a majority of employees voted down the
Company’s proposed agreement and;That the AWU has sought further meetings with the company.
As a result of these considerations, I am satisfied that the Applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are balloted.
Period for Written Notice
Under s414(2) of the Act the minimum notice requirement that must be given for protected industrial action is 3 working days, unless the ballot order specifies a longer period. Section 443(5) of the Act provides:
“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice ...being longer than 3 working days, the protected action ballot order may specify a longer period up to 7 working days.”
The Company submitted exceptional circumstances existed given “the unique operational environment of offshore operations in Australia including the specialised nature of the work being performed, safety considerations and logistical issues.”[4]
Evidence
Mr Marsh, the Operations Superintendent for the Company provided evidence on behalf of the Company. Relevantly in Mr Marsh’s witness statement he provided at paragraphs 14 – 17:
“14. Relevant to this application, Superior Energy employees engaged under the 2020 Agreement perform various tasks including:
•Safe operation of hydraulic workover units.
•Execution of critical tasks across each offshore facility including loading and unloading platform stores, loading and unloading platform cargo from vessels and rig equipment.
• Performance of rescue operations from heights especially during rig operations for example tripping pipe, preparing BHA's (Bottom Hole Assemblies), bundling and unbundling tubulars, changing handling equipment on rig floor's.
•Management of well control: Fluid management, pressure management and management of safety critical equipment including koomey units and BOP's (Blow Out Preventers).
• Supporting third party contractors with cementing operations, H2s monitoring services and hospitality services.
15. If Superior Energy Employees working under the 2020 Agreement were to undertake the proposed forms of protected industrial action, Superior Energy would need to initiate a range of operational measures to ensure the ongoing safety of personnel on the offshore facility.
16. As part of those operational measures to deal with industrial action Superior Energy would need at a minimum five (5) working days to navigate potential site access issues including helicopter travel and management well conditions to ensure a well is safe to shut in.
17. I further consider that, if Superior Energy employees working under the 2020 Agreement were to undertake the proposed forms of protected industrial action with only three (3) working days' notice, Superior Energy would not have enough time to safely cease all activities.”
In witness evidence Mr Marsh gave evidence of potential significant safety and environmental issues that may result if the wells were not monitored or shut properly. Mr Marsh gave evidence that 5 days’ notice may be needed to make “a well safe”, particularly if a support vessel is required and a platform is a considerable distance away.
The AWU did not lead substantial evidence to challenge the evidence put by the Company.
Submissions
The Company submitted “exceptional circumstances are generally regarded for hydrocarbon facilities located offshore that are remote locations or present difficulties to travel to the work location”. Mr Bradford drew the Commission’s attention to Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[5] – where the notice period relating to a protected action ballot order covering employees working in a similar work environment was extended to 7 days by agreement between the parties.
The AWU submitted the Union and its members would ensure that industrial action did not impact on health and safety. Furthermore, the AWU submitted that the 30 day ballot period proposed in the protected action ballot order would give the Company substantial time to prepare.
Consideration
Exceptional circumstances must be “out of the ordinary, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.”[6] Further exceptional circumstances must “justify” a longer notice period, as noted by Vice President Lawler in CEPU v Australia Postal Corporation[7]:
“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension.”
On the evidence before me, particularly with reference to evidence given by Mr Marsh relating to safety concerns and the potential time to address safety concerns, I am prepared to find there are exceptional circumstances justifying the period of written notice being extended to 5 working days.
Submission to Omit Proposed Ballot Questions on the Grounds of Safety Concerns
The Company further submitted that if a protected action ballot order is made, proposed questions 8, 9 and 11 of the draft ballot should be omitted from the ballot order on the grounds of safety concerns. The proposed questions in contention and the Company’s concerns regarding those questions were set out in the Company’s submissions as follows:
“Proposed question 8: Periodic and or indefinite ban on attending Rig Pre Tower-Meeting before commencement of rostered shift ie. Not before 6.00am if on dayshift, not before 18.00pm if on nightshift?
Superior Energy submits that Employees’ nonattendance of a Rig Pre Tower-Meeting before the commencement of rostered (sic) of shift would result in no shift handovers being conducted between each new shift. Shift handovers are critical to the safe operation of the facility by ensuring in progress operations can be safely transferred between shifts and any safety matters can be altered.
Proposed question 9: Periodic and or indefinite ban on taking part in training other than during rostered hours of work and during on cycle ie. No training during off period or off cycle?
Superior Energy submits that the Employees may be required to undertake safety related training to maintain critical certifications such as BOISET (sic). In the event an Employee fails to complete the required certification they will not be permitted to travel offshore in accordance with regulatory requirements.
Proposed question 11: Periodic and or indefinite ban on provision of Crane Lifts to any third party outside of Superior Energy personnel (other than in respect of health and safety)?
Superior Energy submits that Employees in the classification of crane operator perform critical functions that service all personnel and organisations on the facility. Crane operators perform critical takes of rescues from heights, mobilisation of an injured person from to helipad, transfer of materials to support vessel operations and transfer of critical goods (catering supplies and facility equipment). Superior Energy submits that limitations presented in the ballot question present a risk to the safe operations of the facility and personnel onboard.”
Consideration
It should be noted that there is no general discretion for the Commission to omit questions provided by an applicant in relation to a protected action ballot order. As the Full Bench in National Tertiary Education Industry Union v Curtin University[8] indicated:
“…In respect of s443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.”
For the reasons set out below and based on the evidence before me, I have come to the conclusion that the proposed industrial action set out in the questions 8, 9 and 11 does not pose a safety threat that cannot be reasonably managed by the Company. Accordingly, I do not have to determine the issue of whether the Commission can omit proposed questions on the basis of safety concerns.
In relation to Proposed question 8 – the proposed industrial action does not ban Rig Pre Tower-Meetings, it simply requires the meetings to occur during rostered shift. In witness evidence Mr Marsh acknowledged meetings could occur after the start of shift. While I accept Mr Marsh’s evidence that this will cause operational disruption, it does not establish a safety risk.
In relation to Proposed question 9 – the proposed industrial action does not ban training, it simply requires it to occur during rostered hours of work. While I accept Mr Marsh’s evidence that this will be very hard to manage, it does not establish a safety risk.
In relation to Proposed question 11 – in evidence both Mr Marsh and Mr Jones confirmed that crane operators could be sourced from other suppliers if required. Accordingly, I do not find that the proposed industrial action poses a safety risk that cannot be reasonably managed by the Company.
Accordingly, even in the event that the Commission has discretion to omit questions from a protected action ballot order, I find that it is not appropriate to omit the proposed questions 8, 9 and 11 from the ballot order on the basis of safety grounds.
Conclusion
I am satisfied that the application has been made in accordance with s437 of the Act. For the reasons given above I am also satisfied that the AWU is genuinely trying to reach an agreement with the Company. Accordingly, pursuant to s443(1) of the Act, I must make a protected action ballot order.
I am satisfied, in accordance with s443(5), that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, and that the period should be extended to 5 working days.
The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 1 November 2023.[9] This also establishes the ballot period for the purpose of s448A(2) of the Act.
An Order[10] consistent with my reasoning above is issued at the same time as this decision.
This matter will be listed before me to conduct the s.448A compulsory conciliation conference. My Chambers will shortly issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
L Aksu on behalf of the Australian Workers’ Union, the Applicant.
T Bradford of Australian Resources & Energy Employer Association, for the Respondent.
Hearing details:
2023
September 19
Video Hearing via Microsoft Teams.
[1] [2009] FWAFB 368 at [32].
[2] [2009] FWAFB 368.
[3] [2015] FWCFB 210.
[4] Respondent’s Submissions, paragraph 25.
[5] [2017] FWC 5369.
[6] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 at [10].
[7] Ibid at [21].
[8] [2022] FWCFB 204 at [54].
[9] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.
[10] PR766351
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