Australian Workers' Union v Maersk Drilling Australia Pty Ltd
[2022] FWC 3111
•25 NOVEMBER 2022
| [2022] FWC 3111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Workers' Union
v
Maersk Drilling Australia Pty Ltd
(B2022/1679)
| DEPUTY PRESIDENT BINET | PERTH, 25 NOVEMBER 2022 |
Maersk Drilling Australia Pty Ltd - Western Australia
On 7 November 2022 the Australian Workers’ Union (AWU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination (Determination).
The Application sought to compel Maersk Drilling Australia Pty Ltd (Maersk) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover employees of Maersk engaged to work on the Maersk Deliverer semi-submersible drilling rig (Deliverer) in the classifications of Driller, Toolpusher, Electrician, Electronic Technician, Mechanic, and Camp Boss (Employee Group).
The AWU say that it has collected signed individual petitions from a majority of the Employee Group who will be covered by the Proposed Agreement indicating that they wish to bargain with Maersk (Petitions).
On 15 November 2022, Maersk informed Chambers that Maersk did not oppose the FWC making the Determination.
Evidence
The AWU filed with the FWC:
- On a confidential basis, copies of all the petitions collected by the AWU.
- A statutory declaration of the Mr Jason John Lipscombe, the AWU official who collected the petitions.
- On a confidential basis, a table that contained the details of AWU members engaged by Maersk.
Maersk filed with the FWC on a confidential basis an employee list as at 17 November 2022 (List of Employees).
Background
Maersk is an operator of drilling rigs engaged in oil and gas exploration in Australia.
The Deliverer is currently performing drilling services for INPEX Operations Australia Pty Ltd at the Icythys Field in the Bowen Basin off the coast of Western Australia.
The Employee Group are not currently covered by an enterprise agreement.
The AWU collected individual signed petitions from the Employee Group who wish to express an interest in entering into bargaining with Maersk for an enterprise agreement to apply to their employment.
Key Statutory Provisions
Section 236 of the FW Act provides that:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
Section 237 of the FW Act provides that:
“237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
Consideration
The making of a majority support determination confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.[1]
The AWU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement.[2] It is not contested, and I am satisfied, that the AWU have standing to make the Application.
Has Maersk agreed to bargain?
The Application identifies the employer to be covered by the Proposed Agreement as Maersk. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.[3] The Application annexed a letter from Maersk dated 28 October 2022 in which Maersk confirmed that it did not intend to commence bargaining. I am therefore satisfied that Maersk have not yet agreed to bargain or initiated bargaining for the Proposed Agreement.
Is the group of Employees fairly chosen?
The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct from other employees of employer. Having determined whether the group is geographically, operationally and/or organisationally distinct the FWC must take that into account and give it due weight having regard to all the other factors.[4]
The Application identifies the employees to be covered by the Proposed Agreement as employees of Maersk engaged to work on the Deliverer in the classifications of Driller, Toolpusher, Electrician, Electronic Technician, Mechanic, and Camp Boss.
The AWU submits that the Employee Group are operationally, organisationally and geographically distinct from other employees of Maersk as they are engaged in a discrete industrial activity at a distinct work location. Maersk have not disputed that the Employee Group is operationally, organisationally or geographically distinct.
Having reviewed the submissions I am satisfied that the Employee Group is operationally and geographically distinct.
While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated and given due weight, it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen.[5]
The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis.[6] In this regard it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.[7] Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives is also unlikely to be fair.[8]
I am satisfied that the selection of the Employee Group is not fairly characterised as either arbitrary or discriminatory.
Taking into account the operational, organisational and geographic distinctions and giving those due weight having regard to all the other factors raised by the parties I am satisfied that the Employee Group was fairly chosen.
Do a majority of Employees who will be covered by the Agreement want to bargain?
The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees.[9]
In its Application, the AWU say that it presented petitions to the Employee Group which a majority of the Employee Group signed, confirming that they wish to bargain with Maersk for a new agreement (Petitions).
I am satisfied that reviewing the Petitions is an appropriate way to determine whether the majority of Employees wish to bargain. Maersk have not filed any submissions or any evidence to suggest that the Petitions do not accurately reflect the views of the Employee Group.
Having reviewed and compared the List of Employees and the Petitions I am satisfied that a majority of the Employee Group want to bargain.
Is it reasonable in the circumstances to make the Determination?
The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances.[10]
Making a determination does not in itself require the employer to bargain nor does it determine the scope of bargaining or coverage of the proposed agreement. It triggers the notice time within the meaning of section 173(2) of the FW Act. This marks the commencement of the bargaining process and the requirement of the parties to comply with the good faith bargaining obligations set out in section 228 of the FW Act.
I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.
An order[11] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2009] FWAFB 668 at [25].
[2] ResMed Ltd v Australian Manufacturing Workers’ Union [2015] FCA 360.
[3] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124.
[4] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd[2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] 219 IR 139, Cotton on Group Services Pty Ltd v National Union of Workers[2014] FWCFB 8899.
[5] Cimeco Pty Ltd v CFMEU [2012] 219 IR 139 at [20], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[6] Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[7] Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[8] [2014] FWC 7123 citing Cimeco at [21].
[9] Woodside Energy Ltd v Australian Workers Union [2022] FCA 1391 at [13].
[10] Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd[2010] FWA 2164.
[11] PR748235.
Printed by authority of the Commonwealth Government Printer
<PR748233>
0
0
0