AWU v Legeneering Australia Pty Ltd

[2020] FWC 4138

[2020] FWC 4138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Legeneering Australia Pty Ltd
(B2020/297)

DEPUTY PRESIDENT BEAUMONT PERTH, 27 AUGUST 2020

Application for a majority support determination – if employee group to be covered ‘fairly chosen’ – appropriate test time for determining majority - National Union of Workers v Lovisa Pty Ltd considered – Lovisa applied – period of time appropriate for test time.

[1] This decision concerns an application by the Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) under s 236 of the Fair Work Act 2009 (Act) for a majority support determination.

[2] The Unions contend that a majority of employees who would be covered by a proposed agreement want to bargain with their employer, Legeneering Australia Pty Ltd (Legeneering). The proposed agreement would cover employees of Legeneering, who perform maintenance works in the offshore oil and gas sector on facilities located off the Australian coast. Legeneering disputes that a majority of employees want to bargain and opposes the application.

[3] The history of this matter is protracted. Back in February of this year, the Unions had separately written to Legeneering requesting to bargain for an enterprise agreement. Further correspondence was again sent in February with the same request. In response to the correspondence, Mr Gallagher, the General Manager of Legeneering, politely declined to commence bargaining on behalf of the company. In his latter correspondence of 26 February 2020, he respectfully requested that the Unions apply for a majority support determination with the Fair Work Commission in line with the legal framework provided in the Act. 1

[4] On 5 March 2020, the Unions applied to the Commission for a majority support determination. The application was given matter number B2020/134 and was allocated to my Chambers. Legeneering opposed the application. Based upon the employment records produced by Legeneering, when cross referenced to petition or forms provided by the Unions, it appeared that the Unions had not secured the support of a majority of the relevant employees over the period that the petitions in support for bargaining were collected. The Unions discontinued the matter on 4 May 2020.

[5] The current application was filed on 29 May 2020. On 9 June 2020, I conducted a conference and issued directions, on that same day, that the parties file materials in support of their positions. It should be said that Legeneering maintains its position concerning bargaining. It does not want to bargain.

[6] As is common in matters of this kind, the Unions filed petitions (or forms – the term is used interchangeably throughout) and Legeneering a list of employees who performed work that would be covered by the proposed agreement. The materials were filed on the understanding that while the Commission would review the documents to ascertain whether there was a majority for the purpose of the majority support determination, such materials would not be shared with the other party.

Background

[7] The employees for the purpose of this application perform maintenance works in the offshore oil and gas sector on facilities located off the Australian coast (the workforce). The workforce is engaged to work on the Woodside Energy managed Okha and Ngujima-Yin Floating Production, Storage and Offloading facilities. Both facilities are located off the coast of Western Australia – the former north west of Karratha and the latter north west of Exmouth. There is currently no enterprise agreement in place.

[8] It is somewhat uncontentious that the employees are eligible to be members of the Unions, and it follows that the Unions are default bargaining representatives for a proposed single enterprise agreement on behalf of their members by virtue of s 176(1)(b)(i) of the Act.

[9] On 6 February 2020, the Unions separately wrote to Legeneering requesting to bargain for an enterprise agreement for the employees. Further correspondence requesting the same was sent on 19 February 2020. In response to the correspondence from the Unions, Mr Gallagher declined to bargain on both occasions.

[10] As traversed, in March 2020 the Unions applied for a majority support determination unsuccessfully. A further application was made on 29 May 2020.

[11] Mr Douglas Heath, is an Organiser employed by the AWU and the Maritime Union of Australia (MUA). 2 Mr Heath gave evidence that he collected petitions from the Legeneering employees during the period of 5 May 2020 and 31 May 2020.3 He confirmed that no petition collected for the earlier application was used for the purpose of the current application.4 The petitions clearly stated the employee’s name, position with Legeneering and the date on which the petition was signed by the employee, said Mr Heath.5 The petition circulated was titled ‘May 2020 Bargaining Petition’.6

[12] Mr Heath gave evidence that on 4 May 2020 he sent an email to members of the AWU who work for Legeneering. Attached was the blank petition. 7 In the email he advised the AWU members:

a) the earlier majority support determination application made on their behalf had been unsuccessful; and

b) members should circulate the petition amongst their workmates to ensure any Legeneering employee performing work for the company during the month of May 2020, who is interested in bargaining for an enterprise agreement, has the opportunity to sign and return the petition. 8

[13] Mr Heath stated that he collected all completed petitions by email. He clarified that AWU members and other employees of Legeneering sent scanned or photographed copies of completed bargaining petitions directly to Mr Heath’s email address. 9 The first completed petition was sent to Mr Heath via email on 5 May 2020 and the last, dated 31 May 2020, he received on 1 June 2020.

[14] The Unions contend that they have 35 petitions signed by the employees of Legeneering who worked on the facilities during the period of 5 May 2020 and 31 May 2020. During that same period there were, said the Union, 42 employees who worked on the facilities.

[15] Ms Clifford, the Human Resources Manager for Legeneering, stated that the number of relevant employees on the facilities, since around the start of 2019, had usually been around 75-85. 10 Around nine of the employees were employed on an on-going basis with the remainder engaged on a casual basis.11

[16] Those who were engaged on a casual basis could not be provided with a firm commitment of continuous and indefinite employment, or a regular pattern of ongoing work, because future client demands were not always certain, said Ms Clifford. 12 However, where there was no further work to offer those casual employees, Ms Clifford said that Legeneering maintained a relationship with them and kept ‘them on the books’, so that the company could offer them work when available.13

[17] Ms Clifford gave evidence that the employees worked the rosters of Legeneering’s clients. Casual employees, when engaged to work, worked offshore for the working periods of the roster and ceased work at the end of each period. 14 If they were required for another offshore working period, often they would not work again until after the equivalent non-working period of the client roster, but not always – there was considerable variation, said Ms Clifford.15

The law

[18] Section 236(1) of the Act provides that:

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.

[19] Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). That section provides that the Commission 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.

[20] In relation to s 237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s 237(3)).

[21] If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)). No objection is made by the company in relation to this matter. However, before issuing a determination I would need to be satisfied of these matters, in addition to considering it reasonable to make the determination in all the circumstances.

The Legeneering’s objections to the application

[22] Legeneering objected to the application on the basis that the Unions had failed to demonstrate the requirements for a majority support determination under s 237. Expanding on this point, Legeneering contended that the evidence of the Unions was insufficient for the Commission to determine that the majority of the relevant group of Legeneering’s employees wanted to bargain.

[23] The thrust of Legeneering’s objections were about the integrity of the petition forms and the process of obtaining them, and the period in which the petitions were obtained, which, said Legeneering, was not an appropriate time. As far as being fairly chosen, Legeneering argued that it was a matter for the Unions to demonstrate that the group of employees who will be covered by the agreement proposed were fairly chosen. In conclusion, Legeneering submitted the Union had not demonstrated that it was reasonable in all the circumstances to make the determination.

[24] However, Legeneering also advanced an argument that the Unions had failed to establish they were bargaining representatives within the meaning of s 236(1) of the Act. Mr Heath had asserted he was an employee of both the AWU and the MUA and had sent correspondence to the relevant employees by way of a MUA email address. Legeneering argued that the MUA was not entitled to represent the industrial interests of the employees in question. Legeneering correctly noted only a bargaining representative can make a valid application under s 236. The MUA was not, it submitted, a bargaining representative.

Some initial matters

[25] The Unions’ application for a majority support determination meets the following requirements of s 236.

[26] Legeneering had not yet agreed to bargain, or initiated bargaining. The requirement in s 237(2)(b) had therefore been met.

[27] Insofar as the group of employees is considered, I am satisfied the group who will be covered by the proposed agreement was fairly chosen. The selection of the group of employees to be covered by an agreement does not appear to have been an arbitrary or discriminatory exercise.

[28] The Full Bench in QGC v The Australian Workers’ Union 16 gave meaning to the term ‘operational’, which I have adopted. With respect to that meaning, I consider that the ‘industrial or productive activity’ engaged in by Legeneering is the provision of maintenance services at the offshore facilities. Therefore, the group is, in my view, operationally distinct. It comprises employees performing maintenance services at offshore facilities who are covered by a modern award.

The first objection - bargaining representative

[29] Legeneering noted that the only witness put forward by the Unions was a Mr Heath. It continued that the application was reliant entirely on alleged ‘petitions’ referred to by Mr Heath. These, said Legeneering, amounted to no more than proforma documents prepared by Mr Heath and allegedly filled out and signed by other individuals – who provided them by email to Mr Heath at the MUA Those same proforma documents carried the names of the MUA and the AWU, without any explanation as to the meaning of the ‘form’. Legeneering submitted that it was not clear from the evidence provided that the matters described by Mr Heath were undertaken on behalf of the AWU.

[30] In furtherance of this argument, Legeneering submitted that there was no evidence presented to show that the MUA was eligible to represent the industrial interest of any employee of Legeneering.

[31] On 4 May 2020, Mr Heath sent from an ‘mua’ email address, copying in ‘[email protected]’ correspondence addressed ‘To All Legeneering Crew’. It read:

Members would be aware that the Offshore Alliance and ETU filed a Majority Support Determination (MSD) Application in the Fair Work Commission so we can get Legeneering to the bargaining table. An MSD is required where an employer refuses to bargain for an EBA. To get majority support, we need 50% + 1 of the Legeneering workforce who have worked on the NY and the Okha over the period in which we collated the Bargaining Petitions.

We submitted 36 Bargaining Petitions to the Fair Work Commission and Legeneering claim they had 72 employees working in any one month during this period. This is exactly 50% support but left us 1 short of the required petitions. Leaving aside any reservations about the accuracy of Legeneering’s data, we need to commence the process again to ensure we have 50% + 1 support.

The Offshore Alliance will ensure this time around that we gather precise data on which employees mobilise to work on the FBSO’s.

We are now asking all Legeneering crew who work on the NY during the month of May to complete the attached form and email it back. Again, these forms are confidential and won’t be sighted by Legeneering. Only the FWC gets given the forms.

We are not backing down or backing away from our campaign for an industry standard maintenance EBA to apply to the Woodside FPSO’s.

In Unite

Doug Heath

Offshore Alliance Organiser

Join the Offshore Alliance

….

Offshore Alliance

2-4 Kwong Alley

…

[32] The Act provides that an official of an employee organisation cannot be a bargaining representative of an employee where the official’s employee organisation is not itself entitled to represent the employee. 17 Furthermore, it is only a bargaining representative who can make the application under s 236(1) of the Act, which relevantly provides:

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.

[33] The application was made, on 29 May 2020, by the First Applicant - ‘The Australian Workers’ Union’ and the Second Applicant, the CEPU. However, it was Mr Heath who garnered the evidence to support the application.

[34] Mr Heath had asked for the petitions to be sent to an MUA email address, had signed off on his email on 4 May 2020 as the ‘Offshore Alliance Organiser’, referred to the ‘Offshore Alliance and ETU’ having filed a previous majority support determination, and in that same email dated 4 May 2020, had stated that the Offshore Alliance would ‘ensure this time around that we gather precise data…’. Attached to the 4 May 2020 was the petition or form that employees were asked to sign.

[35] The petition or form clearly set out its purpose in its introductory paragraphs. While it is true that a request was made to email the form to an MUA email address, addressed to the ‘Offshore Alliance’, it was evident in the banner of the petition that the AWU had been named as part of that Offshore Alliance. Further, according to the evidence of Mr Heath, the recipients of the email dated 4 May 2020 and the attachment (petition), were all members of the AWU.

[36] When one considers the context of this matter, I am unpersuaded that there was any misapprehension concerning Mr Heath being an official of the AWU and acting in that capacity. Mr Heath is a permit holder of the AWU, 18 his evidence was such that he sent the email of 4 May 2020 to members of the AWU, who had provided their email addresses to that organisation. There is no reason to believe otherwise. The information provided regarding the majority support determination, in the form of the petition, referenced the AWU in a banner titled ‘Offshore Alliance’.

[37] It is therefore the case that I am satisfied that an application has been made by bargaining representatives of employees who will be covered by a proposed single enterprise agreement. As noted, I do not consider there is merit in the argument that Mr Heath was not an official of the AWU, and/or, was not acting in that capacity. The Unions represent members on the facilities and their registered rules entitle them to represent the industrial interests of employees of the kind who would be covered by the proposed agreement. This pre-condition for the issuing of a majority support determination is therefore met.

The second objection - insufficiency of evidence – petitions

The Unions’ submissions and evidence

[38] The Unions submitted that Mr Heath’s witness statement provided detailed information about how the completed petitions were collected and what information the petitions requested from the employees to whom they were circulated. Further, the Unions expressed the belief that all of those who completed and returned a petition were direct employees of Legeneering.

The Company’s submissions

[39] Legeneering submitted there was insufficient evidence to show how the Unions:

a) communicated with each person they claimed had provided a form by email allegedly indicating support for bargaining;

b) ensured the signature on the form was that of the person named as the signatory; and

c) ensured the integrity of the forms and the process adopted.

[40] In these circumstances, said Legeneering, the Commission could not be satisfied that any petitions could be relied upon to demonstrate that a majority of employees employed by it during the four week period selected by the Unions wanted to bargain.

[41] The Unions submitted that Mr Heath’s email communications to AWU members employed by Legeneering were not coercive in any manner. The email communications were sent to AWU members, who had provided the AWU with their personal email addresses for the purposes of correspondence from their union.

[42] Due to the remote location of the facilities where the relevant employees performed work for Legeneering, and given the rosters worked, it was an appropriate approach to take. Understandably, Mr Heath was not positioned to collect any petitions in person.

[43] The petitions were sent to individuals. Unlike a single document petition that has a number of signatures, it was, to the best of the Unions’ understanding, not at any time common knowledge to the employees which employees had and had not completed a petition in support of bargaining. Further, the forms included details such as the full name of the employee, the employer, the worksite, their classification, personal email address, mobile number and the date the form was signed, in addition to the employee’s signature.

[44] The petition or form clearly set out in its introductory paragraphs its purpose. While it is true that a request was made to email the form to an MUA email address, addressed to the ‘Offshore Alliance’, as I have noted, it was evident in the banner of the petition that the AWU had been named as part of that Offshore Alliance.

[45] Having viewed all signed petitions and having considered the evidence and submissions of both parties, I am unpersuaded by Legeneering’s submissions that this Commission should not be satisfied that the petitions can be relied upon. There is no evidence before me that persuades that the process by which the petitions were obtained, or the form of the petitions themselves, were impugned or unreliable.

A time determined by the Commission

The Unions’ submissions

[46] The Unions submitted that at the time of making the determination, the Commission must ensure that the majority of employees who wish to bargain are employed by Legeneering, at a time as determined by the Commission. Further, in light of the highly casualised nature of the workforce, the Commission must have regard to whether the employees ‘will be engaged’ or ‘are usually engaged’ by Legeneering in determining the appropriate time for determination.

[47] Placing reliance on the decision in National Union of Workers v Lovisa Pty Ltd (Lovisa), 19 and recognising that Legeneering had a highly casualised workforce, the Unions submitted that they intentionally collected petitions during a defined period, given that the Deputy President in Lovisa had considered a period rather than a set date. The period for collecting and collating the petitions ran between 4 May 2020 and 31 May 2020. The Unions stated that to ensure the petition reflected the current view of the majority of the workforce, they filed the application in a timely manner on 29 May 2020.

[48] The Unions argued that the four week period between 4 May 2020 and 31 May 2020 must be adopted by the Commission as the ‘determined time’ for the purposes of s 237(2)(a)(i) of the Act. Regarding the list of employees provided by Legeneering, the Unions argued that the list should capture all employees engaged by Legeneering during that determined time.

[49] In response to any contention Legeneering may have that the workforce engaged during the ‘determined time’ was not reflective of its ‘usual’ workforce in terms of the number employed, the Unions observed.

a) Legeneering predominately engages casual employees;

b) the nature of casual employment is short-term, unpredictable, intermittent, irregular and uncertain. A casual employee has no firm advance commitment from their employer to continuing and indefinite work according to an agreed pattern of work;

c) casual employees are engaged and perform works ‘on demand’ or on an ‘as required’ basis. Given Legeneering is a contractor that by the large employs only casual employees, it is not uncommon that it will have a fluctuating workforce during the course of the year;

d) by the very nature of casual employment, a casual employee is only an employee during the period which he or she is engaged; and

e) Legeneering cannot rely on the supposed absence of former employees or employees that would current be engaged but for any circumstance or event to contend that the number of employees engaged during the determined time should be inflated by any number.

Legeneering’s submissions

[50] As noted, it was the Unions’ contention that during the four week period when the petitions had been obtained (May period), there were 42 relevant employees working for Legeneering on offshore facilities and 35 of them signed petitions. However, Legeneering submitted that the Unions’ assertion that the evidence supported a finding that a majority of employees want to bargain, must be viewed with considerable caution.

[51] Legeneering explained that the case must be seen in context. That context included there being a failed application, a subsequent application immediately on the back of the failed, and the impact of the COVID-19 pandemic.

[52] Referring to the evidence in the first application, Legeneering submitted that there were 36 petitions allegedly signed by employees out of 81 employees who were on the facilities during that period, namely December 2019 to March 2020. Alternatively, there were 36 petitions allegedly signed out of 77 employees of Legeneering, if employees without confirmed future work were not included. Legeneering observed that the number of signed petitions in the current application was fewer than in respect of those presented for the first application (although more than in some individual months that were analysed for the first application). As noted, in the first application, petitions were obtained during the period of December 2019 until March 2020. Because there was a dispute in the first application over the ‘time determined by the FWC’ an analysis was conducted of the petitions provided in each month and for the months in culmination.

[53] Legeneering submitted that its evidence showed that over the period from December 2019 to May 2020, it had a total of 84 employees working in maintenance services that the company provided to the facilities. For the period April to May 2020, Legeneering stated that it had engaged around 65 employees on offshore facilities. 20

[54] Up until mid to late March 2020, the employees worked in accordance with the rosters that had been put in place by Legeneering’s clients. Ms Clifford stated that this involved an employee working offshore for a period of three weeks, followed by a non-working period of three weeks, followed by working offshore for a period of three weeks, and then a subsequent six week non-working period. 21 The overall cycle therefore took three months to complete.22

[55] While Legeneering’s ongoing employees worked those client rosters, the casual employees worked for the period on the roster and then ceased work at the end of each period. 23 As noted, the casual employees were required to work again, often they would not work again until after the equivalent non-working period of the client roster, but not always, said Ms Clifford.24 Sometimes there was considerable variation.25

[56] The work location was subject to change. The employees did not always work on the same facility; this was particularly the case for the casual employees. 26 Ms Clifford also gave evidence that not all of the employees worked offshore at any one time due to non-working periods and, for the casual employees, the cessation of work.27

[57] Come late March 2020, Ms Clifford said that the circumstances of the company changed significantly due to the COVID-19 pandemic. 28 Legeneering’s clients had to reduce the numbers of persons on board their offshore facilities and cancelled or deferred a number of planned work scopes – including work scopes that Legeneering was involved in.29 A new roster was introduced on the facilities during April and May 2020, which saw the employees having two weeks in isolation, four weeks working offshore, and then two weeks of non-working period.30

[58] During this period, Ms Clifford estimated that there were about 65 employees working offshore at some stage. 31 However, Ms Clifford stated that a number of employees did not perform work offshore during that same period, albeit she considered them to still be employees of the company.32

[59] While not initially eligible for JobKeeper, Ms Clifford stated that circumstances changed in mid-May. 33 Having become eligible, Legeneering asked all employees to register, including the offshore employees. Ms Clifford gave evidence that she anticipated that around nine offshore employees that had not been working in May and June would still be paid JobKeeper payments by Legeneering, including a number of casuals. Ms Clifford stated that around 14 employees took up that option, including seven of the offshore employees.34

[60] Prior to becoming eligible for JobKeeper, Legeneering had given some employees the ‘opportunity’ to end their employment with the company and request a separation certificate so that they could be eligible for JobSeeker. 35

[61] Legeneering submitted that, based on current work expectations, it believed that the casual employees listed in the information it had provided to the Commission would be likely to be among the employees who would be covered by the scope of the proposed agreement.

The application of NUW v Lovisa

[62] It is uncontroversial that the workforce is made up substantially of casual employees. Legeneering submitted that where the Commission had confronted similar circumstances, it had taken the approach that it was appropriate to determine the number of eligible employees (that is, employees who will be covered by the proposed agreement, the subject of the application) over a period of time, rather than at a specific date. 36

[63] Legeneering expressed, however, that the Unions appeared to be suggesting that the period of four weeks, as referred to in the decision of Colman DP in Lovisa, 37 required slavish adherence as if it were some sort of ‘decision rule’. Legeneering advanced that any such suggestion was misplaced.

[64] Distinguishing the factual matrix in Lovisa, Legeneering submitted that the workplace in Lovisa included weekly rosters. In contrast, Legeneering served offshore facilities where the roster cycles spanned weeks, sometimes up to 15 weeks. It appeared to Legeneering that the Unions were now attempting to ‘rig’ the numbers in favour of their application by picking and choosing the narrowest and most self-serving reference period. This, submitted Legeneering, was an approach that had been rejected by the Commission.

[65] Legeneering argued that the appropriate time for the purpose of s 237(2)(a) of the Act, was still the period of 1 December 2019 to 31 March 2020, when the offshore operations were not so clearly affected by the unprecedented impact of the COVID-19 pandemic and related restrictions.

[66] In Lovisa, the Deputy President referred to the decision of the Full Bench in Kantfield Pty Ltd v AWU 38 (Kantfield) where the Full Bench said the following:

[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.

[36] In Peko-Wallsend, Mason J stated:

“… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.

[67] Having considered Kantfield, the Deputy President reiterated the point the Full Bench was making - the Commission’s power to determine a time is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of the majority is to be determined. 39

[68] Explaining the operation of s 237(2)(a)(i) further, the Deputy President noted that the Commission does not have a discretion to determine the date on which a majority wishes to bargain. 40 Rather, the Deputy President said, it must assess this question as at the date of the decision, using the most recently available information.41 By way of example, the Deputy President provided the following illustration:

[T]hus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain. Evidence about employees’ wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain. 42

[69] Thereafter, the Deputy President went on to tackle the issue regarding the approach to be considered when the workforce was casualised and a time was to be determined for the purpose of s 237(2)(a)(i). The Deputy President considered that in a casualised environment, it was artificial and inappropriate to determine a single date as the relevant time, on which only some casual employees are likely to have been engaged and therefore employed. 43 He considered that the Commission should determine ‘time’ as a period rather than a date.44 Afterall, as the Deputy President identified, s 237(2)(a)(i) refers to a ‘time’, not a ‘date’.

[70] Flowing on from the determination of a ‘time’ and the implications a casualised workforce brings to the equation, it of course proved necessary for the Deputy President to contemplate the circumstances where the casual employee was employed by the employer. The Deputy President, having provided detailed reasoning, concluded:

[I]n short, a person is either employed ‘at a time determined by the Commission’ or not; the person does not become employed at that determined time on the basis that the person is employed at other times (‘usually employed’). 45

[71] In the circumstances of this case, it is worthwhile traversing the reasoning that brought the Deputy President to that conclusion. In Lovisa, the union had contended that Part 2-4 of the Act, which s 237 forms a part of, should be read in light of the decision of the Full Federal Court in National Tertiary Education Union v Swinburne University of Technology 46 (NTEU). Having considered that case the Deputy President expressed (citations omitted):

[42] In my opinion the reasoning of the majority in NTEU is relevant to the consideration of who is an employee for the purposes of s 237(2)(a)(i). A majority support determination relates to a ‘proposed enterprise agreement’ at the inception of the bargaining process, whereas s 181 is concerned with employees voting on an agreement at the conclusion of that process. The foundational definition of employee for the purposes of this Part includes a person who is usually employed. However, Justice Jessup, with whom Justice White agreed, considered that there was a legislative intention of ‘confining, from within a broad class which includes individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made.’ His Honour concluded that the words ‘employed at the time’ in s 181(1) limited the word ‘employees’.

[43] Similarly, in my view the words ‘employees employed by the employer or employers at a time determined by the FWC’ in s 237(2)(a)(i) limit the general meaning of the word ‘employees’. Although the general definition includes a person ‘usually employed’, that meaning is relevantly modified by the determination that the Commission makes in exercise of its discretion under s 237(2)(a)(i). I take note of Justice Jessup’s analysis of the context of s 181 in Part 2-4 and the scheme of bargaining it establishes, including its various stages and who might be employed at those stages. The provisions of subdivision C of Division 8 of Part 2-4 also contemplate several events or stages: an application being made under s 236; the Commission determining a time at which in-scope employees are employed for the purposes of s 237(2)(a)(i); and an assessment of the question of whether there is a majority among those persons who wish to bargain. The fixing of the cohort and the assessment of whether there is majority support for bargaining would ordinarily occur at different times, and in this order, because the Commission can only assess whether there is majority support for bargaining once the cohort has been established. The subdivision recognises the practical reality that the Commission needs to fix a certain time to establish the cohort of employees who would be covered by the proposed agreement, because otherwise the denominator for the assessment of whether there is majority support for bargaining could be fluid and uncertain due to the turnover of labour. This contextual consideration reinforces what to my mind is already quite clear from the text of s 237(2)(a)(i), namely that this provision is, like s 181, concerned with a narrower meaning of ‘employee’. (bold my emphasis).

[72] Having adopted what was said by the Full Bench in Kantfield, I find no reason to depart from the reasoning in Lovisa and therefore accept the approach.

‘At a time’

[73] As noted from the outset, this matter has been somewhat protracted. The Unions, over a period of four months, had garnered an indication from some of the relevant employees that they wanted to bargain, but a majority did not. Quite correctly, having accepted the position of the employee cohort, the Unions discontinued their application. However, not discouraged by the turn of events, the Unions immediately sought to ascertain, once again, whether a majority of employees wanted to bargain.

[74] Legeneering argued that the Unions’ contention that the Commission consider the four week period in May 2020 as the period that constitutes ‘at a time’, was suggestive of slavish adherence to the period adopted in Lovisa, like some kind of ‘decision rule’. I am unpersuaded that is the case. The Unions submitted that the approach that they had adopted was consistent with both the reasoning of the Deputy President in Lovisa and the period during which they collected petitions from the relevant employees. One of the essential points made in Lovisa was that ‘at a time’, did not mean ‘at a date’. It was therefore the case that the Act placed no fetter on a period being considered, rather than a singular day.

[75] While the period of four weeks accords with the period in Lovisa, it is not the case that Lovisa stands for the proposition that a period must always be considered, or that the period must be of a four week duration. The Deputy President in that case decided the period was to be four weeks ending on 9 November 2018, after considering the circumstances of the matter and that the employer’s list of employees was current as of 9 November 2018.

[76] The evidence of Ms Clifford was that from late March 2020, there had been a change to Legeneering’s roster in response to its clients reducing the numbers of persons on board their offshore facilities, and cancelling or deferring a number of planned work scopes. 47 Ms Clifford stated that a new roster was introduced on the facilities during April and May 2020, which resulted in the employees having two weeks in isolation, four weeks working offshore, and then a two week non-working period.48

[77] The relevant cohort of employees are engaged predominately on a casual basis, with a relatively small proportion of the workforce being permanent. While there was no evidence before me concerning the terms and conditions of the casual employees’ employment, the evidence given by Ms Clifford was unequivocal and not disputed. Casual employees concluded their employment at the end of each stint offshore because Legeneering was unable to provide them with a firm commitment of continuous and indefinite employment or a regular pattern of ongoing work. 49

[78] Legeneering submitted it is appropriate to determine a period of greater ambit arguing the appropriate time, for the purpose of s 237(2)(a) of the Act, was the period of 1 December 2019 to 31 March 2020, when the offshore operations were not so affected by the impact of the COVID-19 pandemic and related restrictions. Alternatively, said Legeneering, the appropriate time should include all of its employees, including casual employees who are likely to be engaged on future work scopes, who performed work on offshore facilities in the period 1 December 2019 to 31 May 2020. On that basis, said Legeneering, there were 84 employees who should be included, and the Unions must therefore demonstrate that a majority of those employees want to bargain.

[79] Section 237(2)(a) requires the Commission, as a prerequisite to the making of a majority support determination, to be satisfied that the majority of the employees ‘who are employed by the employer or employers at a time determined by the FWC’ and ‘who will be covered by the agreement’ want to bargain. In the decision of Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union, 50 the Full Bench, in its consideration of s 237(2)(a), expressed:

That provision, in its dual characterisation of the class of employees the majority of which must want to bargain, clearly contemplates that the group of employees actually employed at the relevant time may not be co-extensive with the group of employees who will be covered by the agreement if made. By contrast, the “fairly chosen” requirement in s.237(2)(c) operates by reference only to “the group of employees who will be covered by the agreement”. It is clear therefore that the majority support requirement must be satisfied by reference to that portion of the group of employees who will be covered by the proposed agreement who are presently employed at the time determined by the Commission, whereas the fairly chosen requirement must be satisfied in relation to the entire group who will be covered by the proposed agreement. (underlining for emphasis)

[80] The evidence before me, concerning the application that is currently on foot, does not support Legeneering’s submission that the Unions were now attempting to ‘rig’ the numbers in favour of their application by picking and choosing the narrowest and most self-serving reference period.

[81] Where the relevant employees work for a period of four weeks offshore and are engaged predominately on a casual basis, in circumstances such as those described by Ms Clifford, I consider there is nothing untoward that ‘time’ should constitute a period, and that period should consist of the four weeks prior to the application being made on 29 May 2020. After all, that is the evidence I have before me now, which is the most recent pertaining to the Unions’ application.

Whether there is a majority

[82] Legeneering provided an employee list of relevant employees onboard the facilities during the month of May. The signed ‘petitions’ were referenced against Legeneering’s list of employees working on the facilities in May 2020. The list showed that there were 49 employees on board the facilities during the month of May. Four were full-time employees and the remainder were casual employees.

[83] It follows that at the time the application was made on 29 May 2020, 45 casual employees had been onboard the facilities between 1 May 2020 and 29 May 2020. There were, in addition, nine full-time employees employed for that same period. To discern whether there is a majority, I have considered that there were 54 employees who were ‘eligible’. Namely, the casual employees who were onboard the facilities for the four week period up to 29 May 2020 when the application was made, in addition to the nine full-time employees. Of those employees, 32 had signed petitions in the period 1 May 2020 to 29 May 2020, with two petitions having been dated 31 May 2020 (they were not counted). It is therefore the case that I am satisfied there is a majority of employees who want to bargain in accordance with s 237(2)(a) of the Act.

Reasonableness

[84] I must be satisfied it is reasonable in all the circumstances to make the determination sought. On the basis of the material before me and taking into account the evidence, submissions and conclusions reached I consider it reasonable in all the circumstances to make the determination sought.

Conclusion

[85] As all of the requirements of s 237(2) of the Act have been met, I am obliged, pursuant to s 237(1) of the Act, to make the determination. A determination will issue with this decision and will operate from the date of this decision.

DEPUTY PRESIDENT

On the papers

Printed by authority of the Commonwealth Government Printer

<PR721621>

 1   Form F30 Application for a majority support determination Annexure.

 2 Witness Statement of Douglas Heath [1].

 3 Ibid [7].

 4 Ibid [9].

 5 Ibid [9].

 6 Ibid [10].

 7 Ibid [15].

 8 Ibid [16].

 9 Ibid [14].

 10 Witness Statement of Jessica Clifford [5].

 11 Ibid [5].

 12 Ibid [6].

 13 Ibid [6].

 14 Ibid [9].

 15 Ibid [9].

 16   [2017] FWCFB 1165.

 17   Fair Work Act 2009 (Cth) s 176(3).

 18   RE2018/1350.

 19   [2019] FWC 2571.

 20 Witness Statement of Jessica Clifford [15].

 21 Ibid [8].

 22 Ibid [8].

 23 Ibid [9].

 24 Ibid [9].

 25 Ibid [9].

 26 Ibid [10].

 27 Ibid [11].

 28 Ibid [12].

 29 Ibid [13].

 30 Ibid [14].

 31 Ibid [15].

 32 Ibid [15].

 33 Ibid [17].

 34 Ibid [18].

 35 Ibid [18].

 36   National Union of Workers v Lovisa Pty Ltd[2019] FWC 2571, [36-37].

 37   Ibid.

 38   [2016] FWCFB 8372.

 39   [2019] FWC 2571 [31].

 40   [2019] FWC 2571 [31].

 41 Ibid [31].

 42 Ibid [31].

 43 Ibid [36].

 44 Ibid [36].

 45 Ibid [44].

 46 [2015] FCAFC 98; (2015) 232 FCR 246.

 47 Witness Statement of Jessica Clifford [13].

 48 Ibid [14].

 49 Ibid [6].

 50   [2015] FWCFB 1832.