Australian Workers' Union v Santos Ltd Summary

[2022] FWC 2367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Santos Ltd

(B2022/1323)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 SEPTEMBER 2022

Proposed protected action ballot of employees of Santos Ltd.

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Santos Ltd (the Respondent).

The Respondent initially raised concerns in relation to the form and content of the order and sought an extension of the notice period required for the taking of industrial action (subject to the Commission being satisfied it is appropriate to extend the notice period). I determined a Mention should be conducted, during which I discussed the above matters with the parties and others subsequently raised.

The parties reached a consent position on the form the order should take. Specifically, they outlined the circumstances to be classified as a “Safety and Emergency Event” and their agreement in relation to a regime to be applied to the taking of industrial action if such circumstances arose. Additionally, the Applicant consented to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days.

With the parties having adopted a consent position, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declarations of Mr Gary Henderson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

I am also satisfied based on the position of the parties and the material before me that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of at least 5 working days.

I have had regard to the proposed form of order submitted by the parties but consider some of the content they have proposed for inclusion, in the form of various explanatory “NOTES”, is more appropriately dealt with by way of undertakings or an exchange of letters. I have therefore not included that particular content in the order I have made.

The order has been separately issued in PR745542.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Australian Workers’ Union, seeking a protected action ballot order under section 437 of the Fair Work Act 2009 for employees of Santos Ltd. The primary concern was the form and content of the proposed industrial action, and Santos Ltd requested an extension of the notice period required for such action. The Commission, through Deputy President Clancy, convened a mention to discuss these issues with the parties. After deliberation, the parties reached a consensus regarding the form of the order, including the classification of a "Safety and Emergency Event" and the regime for industrial action in such circumstances. They also agreed to extend the notice period from three to five working days.

The legal issues before the court involved determining whether the application met the statutory requirements under the Fair Work Act 2009 and whether the notice period should be extended. The Commission needed to verify if the union had genuinely attempted to reach an agreement with Santos Ltd and if the proposed form of order was appropriate. The Commission considered the declarations and submissions from both parties and assessed whether the necessary conditions for granting the ballot order were fulfilled. Additionally, the court had to decide if extending the notice period from three to five working days was appropriate.

Deputy President Clancy concluded that the union had met the statutory requirements and had genuinely tried to reach an agreement with Santos Ltd. The Commission was satisfied that the notification time in relation to the proposed agreement was valid, and the requirements in section 443(1) of the Act were met. Furthermore, the court found that the notice period should indeed be extended to five working days, exercising the discretionary power in section 443(5) of the Act. While the Commission approved the proposed form of order, it decided that certain explanatory notes were more appropriately handled through undertakings or an exchange of letters rather than being included in the order itself.

The Commission issued the order separately, as indicated in PR745542. This decision confirms the approval of the protected action ballot order with the specified conditions and the extended notice period, ensuring compliance with the statutory requirements and the agreed terms between the parties.

Australian Workers' Union v Santos Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established