AWU v Woodside Energy Ltd
[2023] FWC 249
•30 JANUARY 2023
| [2023] FWC 249 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Workers' Union, The
v
Woodside Energy Ltd
(B2022/530)
| DEPUTY PRESIDENT BINET | PERTH, 30 JANUARY 2023 |
Woodside Energy Ltd : Woodside employees engaged in Goodwyn Alpha, North Rankin Complex and Angel – majority support determination
On 3 June 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 Determination would require Woodside Australia Pty Ltd (Woodside) to commence bargaining for a new enterprise agreement (Proposed Agreement).
The Proposed Agreement would cover those employees of Woodside engaged to work on the Goodwyn Alpha Platform, North Rankin Complex and Angel Platform (together the Platforms) in Level 4 to Level 9 roles, up to and including supervisors (Employee Group).
The AWU asserts that it has collected signed individual petitions from a majority of the Employee Group confirming that they wish to bargain (Petitions). In addition to employee signatures the Petitions contain the following data fields:
a. full name;
b. date of birth;
c. worksite;
d. job classification;
e. personal email address; and
f. mobile phone number.
Some of the Petitions were obtained using “DocuSign”, an online platform which facilitates the electronic completion and signing of documents.
The Petitions were circulated and collected by email by Mr Doug Heath (Mr Heath) with the assistance of an administrative assistant. Mr Heath is an organiser employed by the AWU and the Maritime Union of Australia (MUA). He represents the industrial interests of workers within the coverage of the AWU who are engaged in the oil and gas industry. The AWU and the MUA have joined forces to form the Offshore Alliance to organise in the oil and gas industry.[1]
In the Form F30 – Application for Majority Support Determination (Form F30) the AWU submitted that the appropriate way for the FWC to determine whether a majority of employees wish to bargain is for the FWC to compare the information contained in the Petitions with employee identification information provided by Woodside (Petition Method).[2]
Attached to the Form F30 were four attachments consisting of correspondence between the AWU and Woodside in which the AWU sought that Woodside commence bargaining and Woodside indicating that it did not wish to commence bargaining (Bargaining Request).[3]
On 6 June 2022, Woodside filed a response to the Application opposing the Application.[4]
Interlocutory Proceedings
An email was sent to the parties on 17 June 2022 notifying them that the Application had been allocated to my Chambers and that I proposed to issue directions for the determination of the Application. The parties were invited to inform Chambers if they believed there was utility in first listing the matter for conciliation. Both parties agreed to engage in conciliation.
The parties participated in a conciliation conference on 29 June 2022. At that conference and in subsequent correspondence with Chambers, Woodside expressed concern that the Petition Method of determining whether a majority of the Employee Group wish to bargain was not a reliable method to work out whether a majority of employees want to bargain in the circumstances of this Application. At the same conference the AWU indicated a willingness to consider alternative methods of demonstrating that a majority of relevant employees wished to bargain. I suggested that the parties consider the use of an electronic ballot of the form frequently used for agreement ballots.
On 30 June 2022, Mr Anthony Longland (Mr Longland), Partner of Corrs Chambers Westgarth who represented Woodside in these proceedings, wrote to Chambers setting out inter alia Woodside’s views with respect to the programming of the Application and foreshadowing the making of an application for an order for production prior to 8 July 2022.[5]
In the absence of any such application being filed and having considered the parties’ submissions with respect to appropriate programming orders, directions were issued to the parties on 12 July 2022 (Directions).[6]
In light of Woodside’s concerns, and the AWU’s willingness to explore alternative methods to determine whether a majority of the Employee Group wish to bargain, Woodside were invited in the Directions to propose an alternative method to the Petition Method to determine whether a majority of the Employee Group wish to bargain. The Directions provided that the AWU would then file its submissions in response.
The Directions required Woodside to inter alia:[7]
a. file with the FWC on a confidential basis a list of employees in the Employee Group employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the relevant employee’s employment by 4pm, Thursday 21 July 2022 (List of Employees);
b. file with the FWC and serve on the AWU by 4pm, Thursday 21 July 2022 its evidence and submissions in response to the Application including but not limited to whether Woodside opposes the process for determining employee support for the Application proposed by the AWU and, if so, what alternative method Woodside proposes.
The Directions required the AWU inter alia: [8]
a. file with the FWC and serve on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022;
b. file the Petitions with the FWC on a confidential basis and serve a redacted version on Woodside by 4pm, Thursday 21 July 2022;
c. file with the FWC and serve on Woodside its evidence and submissions with respect to the merit of the Application by 4pm, Thursday 21 July 2022:
The Directions also required Woodside to provide a copy of the Application, the Directions and all materials filed by both parties in relation to the Application to the Employee Group. The Directions invited members of the Employee Group to contact Chambers if they wished to be heard in relation to the Application.[9]
The email to which the Directions were attached stated as follows:
“Dear Parties,
Please see attached directions for your attention and action.
In relation to the below email from the Respondent, the Deputy President notes that no production orders have been filed as yet and therefore the attached directions have been issued.
Parties will note that these directions provide the opportunity for the Respondent to make any submissions in relation to the method for determining whether a majority exists different to that proposed by the Applicant and set out in the Directions. The Applicant then has the opportunity to reply to these submissions.”
On 15 July 2022, Woodside made an application for an order for production of documents to the Commission (Application to Produce). The Application to Produce sought orders that the AWU produce to Woodside:[10]
a. Unredacted copies of the Petitions.
b. Each Certificate of Completion issued by DocuSign in respect of the Petitions.
c. Every communication sent to each member of the Employee Group between 1 February 2022 and 1 July 2022, including to their private email addresses, from:· Mr Heath;
· any person on behalf of the AWU;
· any person on behalf of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); and
· any person on behalf of the Offshore Alliance.
The Application to Produce was supported by a witness statement by Ms Georgia Manuel (Ms Manuel). Ms Manuel is Woodside’s Human Resource Manager – Australian Operations.
On 19 July 2022, the AWU filed submissions opposing the Application to Produce.[11]
On 20 July 2022, I issued a Decision[12] declining Woodside’s Application to Produce (Production Decision).
On 21 July 2022, the AWU filed the Sworn Statement and copies of the Petitions in accordance with the Directions.[13]
On 21 July 2021, Mr Longland wrote to Chambers indicating that Woodside objected to me arbitrating the Application and requested that I recuse myself. Mr Longland also indicated that Woodside had the same day filed an appeal of the Production Decision (Production Appeal).[14]
The notice of appeal of the Production Decision sought a stay of the proceedings. The stay was declined by the presiding member of the Full Bench constituted to hear the Production Appeal.
On 25 July 2022, Woodside made a formal application for recusal (Recusal Application).[15]
On 27 July 2022, directions were issued to the parties for the filing of submissions and evidence in relation to the Recusal Application (Recusal Directions).
The Recusal Application was listed for a hearing in Perth on 30 August 2022.
On 26 August 2022, a Full Bench of the FWC refused permission for the Production Appeal and issued its reasons for this decision on 2 September 2022.[16]
On 14 September 2022, I issued a Decision[17] declining Woodside’s Recusal Application (Recusal Decision).
On 16 September 2022, Woodside filed a notice of appeal in relation to the Recusal Decision (Recusal Appeal).
On 20 September 2022, I extended the timeframes in the Directions (Extended Directions) so that, relevantly, Woodside was required to file the List of Employees and its submissions and evidence in response to the Application, including its view as to the approach by which the FWC should determine employee support, by 29 September 2022.
On 20 September 2022, Woodside applied for the vacation of the Extended Directions until the appeal of the Recusal Decision could be determined.[18] The AWU opposed this application.[19] On 21 September 2022 the parties were informed by email that I had refused Woodside’s application to vacate the Extended Directions but granted Woodside an extension of time to 23 September 2022 to comply with the Extended Directions (Vacation Decision).[20]
The email relevantly stated: [21]
“The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
The Application was first filed on 3 June 2022. The determination of the Application has been delayed by various interlocutory proceedings – an unsuccessful application for production, an unsuccessful appeal in relation to the application for production and an unsuccessful application for recusal. The only decision issued by the Deputy President to date has been upheld on appeal.
The appeal decision dismissed ... many of the contentions made in the recusal application. The materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application. In these circumstances the Deputy President does not propose to vacate the Directions and stand the matter over.”
On 21 September 2022, Woodside filed an application to amend the Recusal Appeal to add an appeal against the Vacation Decision. Woodside also sought a stay of the Vacation Decision and the Extended Directions. In light of this, on 23 September 2022 I extended time for Woodside to file its materials until 27 September 2022.
On 26 September 2022, the presiding member of the Full Bench constituted to hear the Recusal Appeal conducted a hearing in relation to the stay application made in connection with Woodside’s Recusal Appeal. The presiding member issued his decision with respect to the stay application on the same day. He allowed Woodside’s amendment to its notice of appeal, refused Woodside’s stay application, and ordered that the Recusal Appeal be expedited so that it would be heard on 21 October 2022.
On 29 September 2022, Woodside filed its submissions in response to the Application as directed by the Amended Directions. These materials included a witness statement of Mr Gavin Ramsden (Mr Ramsden). On the same day Woodside sought to reagitate its application for production of unredacted copies of the Petitions. In the same correspondence Woodside sought a variation to the Extended Directions to permit it to file further materials after the AWU filed its submissions and evidence in support of the Application.[22]
On 5 October 2022, the parties were informed that I proposed to direct the AWU to provide copies of the Petitions unredacted other than for employee name. Where information was handwritten and might therefore disclose employee identity the Petition was to be provided with the handwritten information redacted and the information transcribed into a typewritten text and highlighted to identify that it is a modification to the original document.
Later the same day directions were issued to the parties to provide Woodside with an opportunity to file further materials in reply and for the provision of all materials filed by both parties to the Employee Group after that date (Amended Extended Directions). The date for members of the Employee Group who wished to be heard was extended until 4pm (AWST) Friday 4 November 2022.[23]
On 10 October 2022, I listed the Application for the hearing of the merits of the Application on 8 November 2022. This hearing date was subsequently changed to 28 November 2022 to accommodate the convenience of Woodside’s counsel. In consultation with the parties additional hearing dates of 29 November 2022 and 1 December 2022 were also listed and the hearing times on those dates extended.
On 13 October 2022, the AWU filed its submissions and evidence in support of the Application. The materials filed included a witness statement of Mr Heath and a witness statement of Mr Bruce Cooper (Mr Cooper).
Woodside sought and were granted an extension of one week until 27 October 2022 to file its materials in reply. The period in which members of the Employee Group could contact Chambers requesting to be heard was extended until 4pm Friday 11 November 2022.
On 25 October 2022, a Full Bench of the FWC dismissed the Recusal Appeal (Recusal Appeal Decision).[24]
On 27 October 2022, Woodside filed Submissions in Reply and supplementary witness statements by Ms Manuel and Mr Ramsden.[25]
On 31 October 2022, the AWU provided copies of the Petitions to Woodside redacted as directed.[26]
On Wednesday 2 November 2022, Woodside filed an originating application with the Federal Court, seeking relief under section 39B of the Judiciary Act 1903, and sections 21 and 23 of the Federal Court of Australia Act 1976. The application sought judicial review of the Production Decision, the Recusal Decision and the Recusal Appeal Decision. Woodside also sought an interlocutory injunction restraining me from further dealing with the Application other than by referring it to the President for allocation to another Member.
On 9 November 2022, Woodside requested that I vacate the directions currently in force and refrain from further dealing with the Application (other than by referring it to the President for allocation to another member), pending the hearing and determination of the Federal Court proceedings.
On the same day the parties were informed that I planned to proceed to determine the Application unless otherwise ordered by the Federal Court.
On 23 November 2022, the Federal Court handed down its decision dismissing the stay application.[27]
At [54] Justice Katzmann noted she was far from satisfied that Woodside had a strong case for final relief, noting at [57] that she had:
“…considerable difficulty understanding how anything said by the Deputy President in her Directions might conceivably cause the hypothetical lay observer to think that she might not decide any of these questions impartially.”[28]
In relation to the Production Decision Justice Katzmann said at [63] that:
“… it seems to me that any case Woodside may have that the Decision is affected by apprehended bias is, at best, a weak one.”[29]
On the eve of the first day of Hearing, Woodside filed additional documentation and a supplementary witness statement by Mr Ramsden.[30]
The Hearing proceeded on 28 November 2022, 29 November 2022 and 1 December 2022.
Notwithstanding that the Directions including subsequently amended Direction required Woodside to make submissions as to the appropriate method for determining employee support for bargaining if they opposed the use of the Ballot Method, Woodside declined to file any submissions identifying an alternative method. During proceedings on 29 November 2022 it became apparent that Woodside did not intend to file any such submissions but pressed that the Petition evidence was now stale and therefore the Petition Method was not an appropriate method notwithstanding that the delay in determining the Application occurred as a result of multiple unsuccessful interlocutory applications by Woodside.
For completeness at the outset of proceedings on 29 November 2022 before either party closed its case and before Woodside opened its case, I invited the parties to address the question of the appropriateness of a ballot as a method for determining employee support. Mr Ian Neil SC (Mr Neil) representing Woodside requested additional time to respond and I informed the parties that I would hear from them on Thursday 1 December 2022. He did not oppose that deadline or indicate that he required further time to collate witness evidence.
On 1 December 2022, Woodside filed written submissions in relation to the question of the appropriateness of a ballot as a method of determining employee support. At the Hearing on 1 December 2022 Mr Neil indicated that he wished to tender evidence in relation to the issue of the appropriateness of the ballot method of determining employee support and required a further adjournment in order to do so. I therefore granted the parties until 4pm on 7 December 2022 to file any evidence in relation to the question of the appropriateness of a ballot as a method for determining employee support for bargaining. The parties were told that if the witnesses were required for cross examination then a further day of hearing would be listed on 12 December 2022.
On 7 December 2022, Woodside filed a fourth witness statement by Mr Ramsden and the AWU filed statements on behalf of:
a. Mr Zachary Duncalfe (Mr Duncalfe)
b. Mr Michael Michael (Mr Michael)
On 8 December 2022, the parties advised that neither Mr Ramsden, Mr Michael nor Mr Duncalfe were required for cross examination.
Written closing submissions were filed by the AWU on 12 December 2022. Written closing submissions were filed by Woodside on 19 December 2022. Closing submissions in reply were filed by the AWU on 22 December 2022.
Having reviewed all the materials filed by the parties, the transcript of the Hearing and after considering the submissions made in Woodside’s closing submissions filed on 19 December 2022 I directed Woodside to file the following materials on a confidential basis by 4pm Thursday 19 January 2023:
a. A List of Employees in Excel not PDF format containing the following data fields for each person employed in the Employee Group:
· Full name
· Date of birth
· Worksite
· Job Classification
· Work email address
· Personal email address
· Mobile phone number
· Date joined the cohort
· Date left cohort.
b. To the extent Woodside possesses such information, a copy of the signature of each person listed in the List of Employees above.
c. Unredacted copies of emails received by Woodside in response to various requests it made that employees within the Employee Group inform Woodside if they do not wish to bargain for the Proposed Agreement.
An excel document, copies of the relevant emails and a witness statement as to why Woodside was unable to provide the signatures sought were filed on 19 January 2022.
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[31]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, the AWU was represented by Mr Mark Gibian SC (Mr Gibian) and Woodside was represented by Mr Neil.
Evidence
The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
In accordance with the Directions, the AWU filed witness statements setting out the evidence in chief of the following witnesses:
a. Mr Heath; and
b. Mr Cooper.
Mr Cooper was employed by Woodside on the Goodwyn Platform for 15 years from July 2007 until November 2021 as a Maintenance Technician and in various Supervisor roles. Mr Cooper was not available for cross examination and the AWU subsequently withdrew his witness statement.
The AWU also relied on the Sworn Statement including its two attachments consisting of a blank bargaining petition and an email from Mr Heath to the Employee Group dated 22 April 2022.
At the Hearing Mr Heath gave further oral evidence and was cross examined by Mr Neil.
After the Hearing commenced, the additional witness statements were filed by the AWU on behalf of Mr Duncalfe and Mr Michael in relation to potential arrangements for a ballot.
Mr Duncalfe and Mr Michael were not required for cross examination.
In accordance with the Directions, Woodside filed two witness statements setting out the evidence in chief of Mr Ramsden and a witness statement by Ms Manuel. A third witness statement on behalf of Mr Ramsden was filed on the eve of the Hearing.
Mr Ramsden is Asset Superintendent for the North West Shelf Offshore.
Woodside also relied on the witness statement of Ms Manuel dated 15 July 2022 filed in support of its Application to Produce.
Both of the Woodside witnesses gave further oral evidence at the Hearing and were cross examined by Mr Gibian.
After the Hearing commenced a fourth witness statement by Mr Ramsden was filed by Woodside.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.
The following exhibits were also admitted at the Hearing:
a. Template common law contract (Exhibit A1).
b. Briefing to Employees regarding Deed Poll (Exhibit A2).
c. Grievance Procedure (Exhibit A3).
d. Witness Statement of Mr Luke Edmonds confirming the dates upon which undated Petitions were received by email by Mr Heath. (Exhibit A4).
e. Deed Poll (Exhibit R1).
f. Memorandum of Understanding (Exhibit R2).
g. Deed of Agreement (Exhibit R3).
h. INPEX – Ichthys Operations Enterprise Agreement 2022-2026 (Exhibit R4).i. Third Witness Statement of Mr Ramsden (Exhibit R5).
j. Changes to composition of the cohort (Exhibit R6).
At the direction of the FWC the following documents were also filed by the parties:
a. On 30 November 2023 a List of Employees including the additional data fields contained in Petitions (Amended List of Employees).
b. On 19 January 2023 an updated version of the Amended List of Employees (Final List of Employees).
c. On 19 January 2023 a Witness Statement of Ms Elizabeth Anne Mussared (Ms Mussared) explaining why Woodside was unable to comply with the direction to provide copies of the signatures of employees within the Employee Group.
d. On 19 January 2023 unredacted copies of emails relied upon by Woodside as evidence that employees do not wish to bargain.
In reaching my decision I have also relied on the unredacted copies of the Petitions filed by the AWU with the FWC on a confidential basis on 21 July 2022.
In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
Woodside is an oil and gas producer.[32]
In partnership with other producers Woodside has developed the North West Shelf Project (Project). Woodside has operated the Project for 38 years. [33] The Project operates as a discrete business unit within Woodside.[34]
Through various expansions, the Project now comprises the three offshore platforms namely the North Rankin Complex, the Goodwyn Alpha Platform and the Angel Platform (Platforms) and five onshore liquefied natural gas (LNG) production trains at the Karratha Gas Plant (KGP).[35]
The Platforms are connected by subsea pipelines and tie into a trunkline system that transports gas and condensate to the KGP.[36]
KGP is an integrated gas production system that produces LNG, domestic gas, condensate and liquefied petroleum gas (LPG). KGP is located 1,260 kilometres north of Perth. KGP has an export capacity of 16.9 million tonnes per annum, with five LNG processing trains; two domestic gas trains; six condensate stabilisation units and three LPG fractionation units. The KGP is capable of independently processing gas and condensate and typically operates 24 hours per day 365 days per year.[37]
The Platforms are managed and operated by Woodside through a single organisational structure and managed by one Asset Manager.[38]
The North Rankin Complex is comprised of the North Rankin A and North Rankin B platforms, which are connected by two 100 metre bridges and operate as a single integrated facility. The North Rankin Complex is a manned platform located 135 kilometres north-west of Karratha.[39]
The Goodwyn Alpha Platform is a manned platform, connected to the condensate-rich Goodwyn gas field, located 23 kilometres south-west of the North Rankin A platform and about 135 kilometres north-west of Karratha.[40]
The Angel Platform is located about 120 kilometres north-west of Karratha and is connected to the North Rankin Complex via a 50 kilometre subsea pipeline. The Angel Platform is designed to be Not Normally Manned (NNM) and as such without on-facility operator intervention on a day-to-day basis. It can be, and usually is, operated, monitored, controlled, restarted and diagnosed remotely from the North Rankin Complex.[41]
North Rankin B and the Goodwyn Alpha Platform have a self-contained module which includes living quarters, a mess area, a gallery, offices and change rooms.[42]
During normal operations, Woodside employs approximately 200 people on the Platforms of which around half are typically allocated to the North Rankin Complex and half are typically allocated to the Goodwyn Alpha Platform. These employees are employed in the roles of:
a. Production Technicians;
b. Maintenance Technicians – Inlec or Mechanical;
c. Service Technicians;
d. Supervisor – Operations or Maintenance or Project Coordinator Resource Estimator (PCR);
e. Logistics Coordinator;
f. Health, Safety and Environmental Coordinator (HSEC);
g. Superintendents – Frontline or Execution; and
h. Offshore Installation Manager (OIM).
All jobs on the Platforms are assigned a job level from 4 to 12. Supervisor roles are typically assigned at job level of 8 or 9.
The Platforms are managed on a day-to-day basis by the OIMs. OIMs are the custodians of both the asset safety cases and the environmental plans. The OIMs are not within the proposed Employee Group. There are five OIMs assigned to work across the three offshore assets, all of whom report to the Asset Manager.[43]
Reporting to the OIMs are the Superintendents. Woodside employs ten Frontline Superintendents and five Execution Superintendents. The Frontline Superintendent is responsible for running and optimising the plant, recovering from trips and emergencies, and the performance of frontline maintenance. The Execution Superintendent is responsible for ensuring all site works are executed to plan both safely and efficiently. Both Frontline and Execution Superintendents are ‘on-site’ roles. That is, they are physically located, and perform their work, on the offshore assets. The Superintendents are not within the proposed Employee Group.[44]
Reporting to the Superintendents are the Supervisors. Woodside employs ten Maintenance Supervisors, five PCRs and five Operations Supervisors across the two manned assets. Each report to the Execution Superintendent and are responsible for leadership and supervision of the implementation workforce. The respective Supervisors manage different teams with differing implementation focus. Supervisors are typically capable of undertaking Technician duties if necessary. The Supervisors fall within the Employee Group.[45]
Production Technicians report to the Frontline Superintendent or Operations Supervisor. Maintenance Technicians report to the Maintenance Supervisor or Frontline Superintendent. Production and Maintenance Technicians are engaged in maintenance duties and fall within the Employee Group.[46]
The Services Technicians look after all the lifting and shifting on the offshore facilities. The Services Technicians report to an Operations Supervisor. Service Technicians fall within the proposed Employee Group.[47]
The AWU has members currently employed by Woodside performing work on the Platforms.[48] The AWU and the MUA have combined resources to form the Offshore Alliance to further their efforts to organise in offshore industries particularly in the oil and gas sector.
On 19 March 2022, Mr Heath sent an email to members of the Employee Group (19 March Email). Mr Heath says that he obtained the email addresses (a mixture of work and personal email addresses) from a list which was anonymously left at the front counter of the MUA offices.[49]
The 19 March 2022 email extolled the virtues of collective bargaining and informed recipients that the Offshore Alliance had recently secured an in-principle agreement with INPEX for an enterprise agreement which provided for: “…industry benchmark rates of pay and locks in key employment terms.”[50]
In the same email Mr Heath stated:[51]
“This email which you have received has been sent out to a combination of both work and private email addresses. If you would prefer future emails, [sic] be sent to your private email address, it would be appreciated if you can let me know and we will replace your work email address with your private email address (all bcc’d into future correspondence).”
On 23 March 2022, Mr Heath sent another email to members of the Employee Group asserting that his correspondence of 19 March 2022 had prompted Woodside to commit to a review of salaries in April 2022 (23 March Email). In the same correspondence he noted that a number of employees had requested that future correspondence be sent to their personal rather than work email addresses.[52]
On 4 April 2022, Mr Heath sent another email to members of the Employee Group indicating that the Offshore Alliance intended to seek to have the terms agreed with INPEX agreed with all other top tier oil and gas companies (4 April Email). Attached to the email was a summary of the key terms and conditions of the agreement reached with INPEX.[53]
On 22 April 2022, Mr Heath sent another email to members of the Employee Group attaching a blank petition (22 April Email). In the email Mr Heath explained the process the AWU usually undertakes to purse bargaining with a company that does not wish to bargain. He invited employees who wished to express their interest in entering into bargaining with Woodside for an enterprise agreement to apply to their employment to complete the petition and return it to the AWU.[54]
In his email Mr Heath assured members of the Employee Group that: [55]
“The Offshore Alliance will not provide Woodside with a copy of the Bargaining Petitions… The Bargaining Petitions will be provided to the FWC (and not Woodside) to demonstrate that a majority of Woodside employees on the Offshore Platforms want Woodside to engage in bargaining.”
He also noted that his email distribution list was now overwhelmingly made up of personal rather than work email addresses.[56]
The template petition attached to the 22 April 2022 email had the logos of the AWU, MUA and the Offshore Alliance in the header of the document. Below the petition stated as follows:[57]
“I am an employee of Woodside Energy Ltd {ABN: 63 005 482 986} (“Company”).
I understand the purpose of this document is to confirm whether I support bargaining for an enterprise agreement with the Company to apply to my employment.
By signing below, I confirm my support for bargaining with the Company for an enterprise agreement to apply to my employment. I have done so freely and without pressure.
I am aware this document will be provided to the Fair Work Commission.”
The template petition then set out the following data fields:[58]
a. Full name.
b. Date of birth.
c. Employer.
d. Work site.
e. Classification.
f. Personal Email Address.
g. Mobile number.
Below the data fields was a space to insert the date the Petition was signed and the petitioner’s signature. A note in the footer of the document indicated that the form should be returned to the Offshore Alliance via email to [email protected].[59]
Mr Heath received the first signed Petition the same day.[60]
On 28 April 2022, Mr Heath sent another email to members of the Employee Group. This email invited members of the Employee Group who had not yet submitted a Petition to complete their petition using DocuSign (28 April Email).[61]
On 3 May 2022 Mr Heath sent another email to members of the Employee Group (3 May Email) in which he commended them for:
“… for supporting a bargaining campaign which will ultimately deliver Woodside employees industry standard rates and conditions, greater job security and importantly, mechanisms to ensure that the Company cannot unilaterally change ‘agreed’ terms and conditions.”[62]
On 12 May 2022, Mr Heath sent another email to members of the Employee Group stating that 75% of the Employee Group had completed a Petition (12 May Email). [63]
In the same correspondence he stated: [64]
“Thanks to all employees who have joined the Offshore Alliance. The Offshore Alliance strongly believes in Freedom of Association, and it is up to every individual whether they join or don’t join a union. Our bargaining strength, however, is directly proportionate to our union density at any respective workplace.”
He also asked that anyone who did not wish to receive further communication from him to advise him so he could remove their name from his distribution list.[65]
The Offshore Alliance host a public Facebook Page. On 22 February 2022, 2 March 2022, 8 March 2022, 16 March 2022, 9 February 2022, 12 February 2022, 20 February 2022, 4 March 2022, 21 March 2022, and 25 April 2022, posts were made on the Facebook Page which Woodside rely on as evidence that the Petitions were falsely obtained via misrepresentations made by the Offshore Alliance.
None of the posts made prior to 21 March 2022 make any reference to enterprise bargaining. Rather the relevant posts are critical of the conduct of Woodside management and the business more generally.
The post on 22 February 2022 referenced Woodside’s corporate values and included a photo of a senior Woodside manager from the manager’s Facebook page holding an inflated ‘doll’ in a sexually suggestive position and queried how the two aligned (22 February Post).[66] Woodside concede the photo was posted by a Woodside manager but say that the manager in question was not at work at the time.
The post on 2 March 2022 referenced Woodside’s diversity Policies and a meme purported to have be posted on Facebook by Woodside manager with a woman removing her underwear with the statement ‘oh … its fly in day wont be needing these…” and queried how the two aligned (2 March Post).[67]
The post on 8 March 2022 referenced the Myanmar Military Junta and asserted that then Woodside CEO Mr Peter Coleman had publicly stated that “its not up to us to judge the veracity of grievances [the military] have…” (8 March Post).[68]
The post on 16 March 2022 referenced Woodside’s celebration of International Women’s Day and contained a photo alleged to have been posted on Facebook by a Woodside manager of a sexually explicit pose (16 March Post). The post states:[69]
“THIS IS THE CRAP WHICH WOODSIDE BOSSES ARE PUBLICLY POSTING. CLEAN UP YOUR ACT WOODSIDE WOODSIDE’S COMPASS VALUES ARE A SHAM’.”
The posts on 9, 12 and 20 February 2022 and 4 March 2022 were critical of Woodside’s approach to the management of COVID-19, in particular in relation to the rates of pay it proposed to pay for periods of quarantine, proposed roster changes and the adequacy of consultation with respect to changes.[70]
The post on 21 March 2022 was the first to make any reference to enterprise bargaining. The post alleged that the announcement that day by Woodside of a salary review had been triggered by the request by the AWU two days earlier to commence bargaining (21 March Post). The 21 March Post also includes the words: [71]
“Regardless of whatever increase Woodside decide to stump up, it won’t detract from the Offshore Alliance seeking an EBA which locks in remuneration and employment standards. Over the past few years, Woodside have shown that employment contracts offer employees zero job security and no security of rosters and other entitlements.”
The post on 28 March 2022 displayed a post that referenced the way Woodside remunerated its employees (28 March Post). The post includes the words:[72]
“The time is right for Woodside’s offshore workforce to be paid industry benchmark rates of pay. This should be done via ‘negotiation’ and not by the unilateral determination of the HR bosses and bean counters sitting in Woodsides ivory tower in Mount Street. The Offshore Alliance is stepping up our campaign for an Enterprise Agreement to cover Woodsides GWA, NCR and Angel Platform workforce. Only an EBA can prevent unilateral changes to key employment conditions. Employment contracts are a sham and a scam.”
The post on 25 April 2022 was critical of Woodside’s handling of a COVID outbreak on the North Rankin Platform.[73]
The post on 13 May 2022 reported that (13 May Post):[74]
“With 75% support for bargaining for an Enterprise Agreement by the Woodside workforce on the GWA, NRC and Angel Deep Platforms, the Offshore Alliance has given Woodside formal notification of the need to commence bargaining for an Enterprise Agreement. The Woodside Platform crew are to be commended for taking a unified and principled course of action of ensuring that their employment conditions and employment security are properly locked in through a union-negotiated Enterprise Bargaining Agreement.”
On 12 May 2022, the AWU wrote to Woodside formally requesting that Woodside commence bargaining with the Employee Group.[75] On 19 May 2022, Woodside responded stating that collective bargaining would constitute a ‘significant departure’ from their ‘long standing processes’ and requesting further information and time to consider the request.[76] The AWU followed up on its request on 24 May 2022 asking that Woodside confirm its position no later than 31 May 2022. On 30 May 2022, Woodside sent a letter stating that: ‘… we are not in a position to commit to enterprise bargaining under the Fair Work Act at present.’[77]
On 1 June 2022, Mr Heath forwarded to the Employee Group a copy of agreement reached with INPEX.[78]
On 3 June 2022, the AWU filed the Application.
In July 2022 Woodside issued a notice to the Employee Group setting out the reasons why Woodside did not wish to commence bargaining for a collective agreement and asserting that the Offshore Alliance had falsely asserted that the INPEX EBA provided superior conditions.[79]
“This update provides you with the facts about enterprise bargaining and explains how it can change things and why we as a team do not need to go down that path.
…
Offshore Alliance will make big claims but the fact is our package already positions you overall better than the INPEX Enterprise Bargaining Agreement (EBA) which has been described by the union as ‘Tier 1”.
…
We are concerned that you have been told information that is not accurate. We want you to have the facts so you can compare your current conditions with the INPEX EBA conditions.
No other operator has our rich NWS history. Our best results come from working together. Working as a team to resolve issues delivers real outcomes quicker than bargaining with a third party and avoids the disruption and uncertainty of unpaid Industrial action.
Enterprise bargaining does not guarantee that your conditions will Improve - In fact, as you can see from the comparison with the ‘Tier l’ INPEX EBA, it could lock in conditions that leave you worse off.
An EBA process can be drawn -out and confrontational, dividing the workforce and disrupting operations. It's an uncertain path that is very different to what has worked for our people and business for most of the past four decades.
… No EBA can give job security.”
Attached was a document comparing key terms between Woodside’s current arrangements and those contained in the INPEX Agreement.[80]
At the same time Woodside invited members of the Employee Group who did not support collective bargaining to send an email to the specified address:[81]
“If you do not want to get into enterprise bargaining the best thing to do is to send an email to [email protected]. Any information received in this way will be handled sensitively – it can only be viewed by two people in the organisation and we fully intend to keep the information confidential unless you agree otherwise.”
In the same communication Woodside told employees that:[82]
“We have been provided with very limited information by the union to support its position in the process and there is complexity in the legal process that needs to be worked through.”
Woodside does not wish to engage in enterprise bargaining and opposes the Application.
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.[83]
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.[84]
It is not contested, and I am satisfied, that the AWU have standing to make the Application.
In accordance with subsection 236(2)(a) of the FW Act, the Form F30 identifies the employer to be covered by the Proposed Agreement as Woodside and the employees to be covered by the Proposed Agreement as those employees of Woodside who are engaged to work on the Platforms in Level 4 to Level 9 roles, up to and including Supervisors.[85]
The Proposed Agreement is a single-enterprise agreement.[86]
Woodside inexplicably suggest that it has “no real knowledge”[87] of the basis upon which the AWU contends that majority support exists for the bargaining. It is clear from all materials filed by the AWU, commencing with the Application, that the AWU contends that the basis on which the FWC can be satisfied that a majority of the Employee Group wish to bargain is because 127 of the Employee Group have signed petitions stating that they support bargaining.
Woodside submitted that section 237 of the FW Act requires me to determine, as a threshold matter of jurisdiction, whether the AWU had advanced in the Form F30 a “reasonable hypothesis” of majority support before taking any other action with respect to the Application such as issuing directions to file materials in relation to the merits of the Application.
The Full Bench considered this submission in the course of determining the appeal of the Recusal Decision and stated that:[88]
“[42] We reject the premise of Woodside’s submission. Section 237 does not establish any threshold requirement that a “reasonable hypothesis” of majority support must be found to exist prior to the Commission proceeding to determine the question arising under s237(2)(a) (including the determination of a method of assessing majority support under s 237(3)). The expression “reasonable hypothesis” is not used in s237 or in any provision of the FW Act relevant to majority support determinations or the whole subject of bargaining. Woodside submitted that the requirement arose as a matter of implication from the whole of ss 236 and 237, but advanced no submission, even when pressed on the matter, as to how the text of those sections gave rise to such an implication.”
In its Closing Submissions Woodside submitted that a jurisdictional basis for proceeding to determine the Application did not exist because of a lack of evidence: “… that the petitions were at all times under the custody and control of responsible persons.” Woodside cite as authority for this principle the decision of Commissioner McKenna in AMWU v Veolia Water Operations Pty Ltd[89].
In that case Commissioner McKenna found that she could not rely on the petition signatures contained in a single hard copy document because the custody of the document during the period of signing was unknown. She did not find this to be a jurisdictional barrier to her determining the relevant application. In fact, she exercised her power under s.237(3) of the FW Act to order that a ballot be conducted.
The AWU have filed with the FWC unredacted Petitions upon which it relies and a statutory declaration addressing how the Petitions were collected. Woodside have filed the Final List of Employees. When this information is compared it reveals that Petitions indicating support for bargaining were obtained from a majority of the Employee Group. Having been satisfied that the Application is properly before me I turn below to consideration of whether I am satisfied of the matters set out in subsection 237(2) of the FW Act in relation to the Proposed Agreement.
Has Woodside agreed to bargain?
The Form F30 identifies the employer to be covered by the Proposed Agreement as Woodside. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.[90]
The Bargaining Request correspondence evidences that Woodside has not agreed to bargain.[91]
I am therefore satisfied that Woodside have not yet agreed to bargain or initiated bargaining for the Proposed Agreement.
Are the employees to be covered by the Proposed Agreement fairly chosen?
If a proposed agreement will not cover all employees of the employer, the FWC must be satisfied that the employee group to be covered by the proposed agreement was fairly chosen. In determining whether an employee group is fairly chosen the FWC must take into account whether the employee group is geographically, operationally and/or organisationally distinct from other employees of the employer.[92]
The term ‘operational’ refers to an industrial or productive activity.[93] The term ‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct those operations.[94]
It is not sufficient to establish geographical distinctiveness that individual employees in the relevant cohort work alone. Consideration should be given to whether the cohort as a group are geographically distinct from employees not included within the cohort.[95] For a group of employees to be regarded as geographically distinct, it is not necessary that the group include each and every employee who works at a particular location. Distinctiveness is not absolute and a group of employees may be regarded as geographically distinct if geographically separated from other employees performing the same type of work.[96]
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. [97]
The assessment of whether a group of employees proposed to be covered by an agreement was fairly chosen will turn on the facts and circumstances of each case and involves a degree of subjectivity and value judgement.[98] In that context: [99]
“…distinctiveness within the meaning of s 237(3A) … is necessarily a relative, not absolute concept, and necessarily requires a comparison between the employees who will be covered and those who will not.”
There is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen.[100] In CFMEU v ResCo Training and Labour[101], for example, a Full Bench of Fair Work Australia held the following in relation to the consideration of whether employees are fairly chosen for the purposes of enterprise agreement approvals:[102]
“In most enterprises there is unlikely to be any one fair manner of selecting the class of employees to be covered by an enterprise agreement. Different scope provisions may be equally described as fair in the sense that no manifest unfairness arises from their application. That is not to say that the parties may have a particular preference or view about the scope and favour a different formulation. The tribunal’s task however is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen.”
The AWU seeks a majority support determination for a proposed enterprise agreement that will cover employees of Woodside who are engaged to perform work on the Platforms in roles allocated to Job Level 4 to Level 9, up to and including Supervisors. The effect of the proposed coverage is that all employees on the offshore Platforms of the Project would be covered other than the OIMs and Superintendents.[103]
According to Mr Heath the group was chosen by the Employee Group to include all employees who at least from time to time work ‘on the tools’ in direct productive work on the offshore platforms.[104]
The AWU submit that the Employee Group is fairly chosen and that the Employee Group is geographically, operationally, and/or organisationally distinct from other employees of Woodside.
Woodside submit that the Employee Group is not geographically, operationally or organisationally distinct nor fairly chosen.
The AWU submit that employees engaged on the Platforms (located offshore) are geographically distinct from those who are not.
Woodside submit that the Employee Group are not geographically distinct from Superintendents and OIMs who also live and work on the Platforms.
The AWU submit that the Employee Group are operationally distinct from other Woodside employees employed in connection with the Project who are either engaged in the productive activity of processing gas (onshore employees) or the management of people (OIMs and Superintendents).
The AWU argue that Supervisors are involved in the industrial or productive activity of producing or extracting gas for the Project for the following reasons:
a. Supervisor role is hands-on.[105]
b. Supervisors are expected to be out in the field most of the time, ensuring that work is being completed and completed safely.[106]
c. Supervisors are typically promoted from the pool of tradespeople in the levels below.[107]
d. It is rare for Supervisors to be moved between Woodside’s business units.[108]
e. Supervisors are generally capable of performing technician duties.[109]
f. Supervisors have supervisory rather than managerial duties.[110]
The AWU say that Supervisors can be distinguished from OIMs and Superintendents because OIMs and Superintendents are more correctly characterised as being engaged in the productive activity of managing people not the productive activity of producing or extracting gas.
The AWU argue that OIMs are engaged in the productive activity of managing people because:
a. OIMs do not have a hands-on role or necessarily any hands-on experience.[111]
b. The OIM role is disconnected from the activity of producing gas as the role would be the same no matter the product being produced.
c. The OIM does not perform any productive work towards the maintenance of the offshore facilities or the production of gas.
d. OIMs may be moved between Woodside’s business units.[112]
The AWU argue that Superintendents are engaged in the productive activity of managing people because:
a. The Superintendent is a ‘conduit’ back to the Woodside office in Perth.[113]
b. The Superintendent role is a support and governance role.[114]
c. The Superintendent does not perform any productive work towards the maintenance of the offshore facilities or the production of gas.[115]
d. Superintendents may be moved between Woodside’s business units.[116]
Woodside say that the onshore and offshore facilities which make up the Project are jointly and inextricably engaged in the extraction, processing and export of gas and condensate and that the skills and trades required at the facilities are substantially similar and that therefore the Employee Group is not operationally distinct from employees engaged onshore. In addition, Woodside submit that the Employee Group are not operationally distinct from management employees such as OIMs and Superintendents that live and work on the Platforms. [117]
The AWU submit that onshore and offshore facilities which make up the Project are organisationally distinct because they have a separate superintendents and asset managers and are regulated by different safety bodies. The AWU also identify differences in the terms and conditions of employment of onshore and offshore employees including the payment of an offshore allowance and the integration of annual leave into the roster of all offshore employees. The AWU also argue that onshore and offshore employees are not readily transferred between sites because there are certain site-based skills competencies required which cannot be obtained quickly. For example, they point to an instrumentation electrician who they say would require at least six months to obtain the competencies to move from onshore to offshore.[118]
Woodside submit that the Employee Group are not organisationally different from other Woodside employees employed on the Platforms or at the KGP because they all ultimately report to the Vice president, North-West Shelf, their skill sets make their transfer between onshore and offshore roles a possibility and they are subject to the same or similar policies, work practices and conditions of employment.[119]
I am satisfied that the Employee Group is organisationally, operationally, and geographically distinct from employees engaged in the Project onshore:
a. The Project operates as its own business unit within Woodside.[120]
b. The Project is made up of the Platforms and the KGP.[121]
c. The Platforms are located offshore. The KGP is located onshore.[122]
d. The Platforms are managed and operated through a single organisationally structure managed by one Asset Manager. The KGP has a separate Asset Manager.[123]
e. The Platforms and the KGP are regulated by different regulatory bodies.[124]
f. While some preliminary processing of the gas may occur at the Platforms, the primary purpose of the Platforms is to facilitate the extraction of gas. The primary purpose of the KGP is to process the gas. [125]
g. The fact that a disruption in operations of the Platforms or the KGP could affect the other does not mean they cannot be regarded as operationally distinct.
h. Employees may be transferred but are not routinely transferred between the Platforms and the KGP.
The evidence is that OIMs have responsibility for the day-to-day management of the Platforms including compliance with the relevant safety case.[126] The evidence is that Superintendents are responsible for running plant or ensuring site works are safely and efficiently performed and may be required to act as OIMs. According to Mr Ramsden:
“A typical day for Superintendents includes attending the conflict and leadership meetings. They identify and resolve conflicts between proposed work scopes, other activities, and facility operational status. The leadership meetings take a more general overview of the day’s events including HSE or people issues and set the priorities for the coming day.”
I am satisfied that the OIMs and Superintendents are operationally distinct from the Employee Group because the OIMs and Superintendents are engaged in the industrial activity of management rather than the frontline industrial activity of the extraction and production of gas. OIMs and Superintendents are the senior management employees responsible for the operation of the Platforms as a whole. In contrast Supervisors are allocated to operational teams which include Technicians.[127]
I am satisfied that Supervisors are not operationally distinct from the Employee Group. Supervisors typically have the necessary qualifications to perform the duties of other employees within the Employee Group and may perform such duties in the normal course of the performance of their roles.[128] Based on their position description, Supervisors perform a ‘Leading Hand’ rather than a managerial role. Their key responsibilities and accountabilities do not note any typically managerial responsibilities such as approving leave or disciplining employees. Rather the key responsibilities speak only to supervisory and leadership duties.[129]
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.[130]
The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis.[131] 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.[132] 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 are also unlikely to be fair.[133]
There is nothing to suggest that the exclusion of OIMs and Superintendents is either arbitrary or discriminatory or otherwise unfair. As in fact Woodside argue there are objective reasons why senior management roles are not typically included in the scope of an enterprise agreement.
Woodside submit that the Employee Group is not fairly chosen because it includes Supervisors. Woodside say that it is unfair to include Supervisors because such employees could be placed in a position of conflict between their duty to manage and discipline employees on the one hand, and their interest in supporting and advancing the claims of those employees against their employer on the other.
In support of this proposition Woodside cite cases involving union eligibility rules but none which consider the fairness of agreement coverage.
It is not uncommon for agreements and Awards to cover frontline supervisors. The relevant modern award, the Hydrocarbons Industry (Upstream) Award 2020, includes classifications having supervisory responsibilities together with employees they supervise.[134]
The evidence supports the conclusion that there is nothing unfair in the Supervisors being part of the Employee Group:
a. The Supervisors are selected based on competence and performance typically from the pool of available technicians. The practice is to select a particularly skilled and experienced Technician to be a Supervisor.[135]
b. The Supervisors are classified at job level 8 or 9 which overlaps with the job level allocated to the Technicians who can be allocated from job level 4 to 8 or job level 9 for a “technical specialist”. As such, the Supervisors are recognised to be at the same level of at least some Technicians for pay purposes.[136]
c. Supervisors are typically required to have the technical skills and competencies of the technician role. For example, the Maintenance Supervisor is required to have a “SKILLED” level of competence in maintenance processes and functionality and design of facility equipment, systems and processes. [137]
d. Supervisors are required to provide technical advice and guidance to Technicians in the course of their operational work, at least in relation to areas in which the Supervisor has the technical skills and competencies, and to lead by example by showing how things are done in the most optimal way.[138]
e. Supervisors undertake the same operational work as Technicians as part of an operational team where necessary.[139]
f. The nature of the supervisory role of the Supervisors is appropriately regarded as a “team leader” or “leading hand” type role in which the Supervisor directly supervises the operational work of the Technicians, leads by example and works as part of the team.[140]
g. The extent of the Supervisors employee relations role is at most described as the first point of contact.
h. A review of the Petitions reveals support among Supervisors for bargaining and consequently their inclusion within the scope of any subsequent agreement.
Woodside submit that the Employee Group is not fairly chosen because it would include a position which did not exist at the time the proposed cohort was chosen because it was subsequently created following a merger between Woodside and BHP’s oil and gas portfolio. Given that the position did not exist at the time the selection of the proposed cohort was made, I am satisfied that its exclusion cannot be correctly characterised as unfair.
There is no evidence before me to suggest that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.
There is no evidence, before me, to suggest that the Employee Group is not fairly chosen and I am satisfied that the Employee Group was fairly chosen.
By what method should the FWC determine whether a majority of employees want to bargain?
Prior to making a majority support determination, the FWC must be satisfied that a majority of the employees who will be covered by the Proposed 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.[141]
The AWU say that it presented individual petitions to the Employee Group which a majority of the Employee Group signed confirming that they wish to bargain with Woodside for an agreement.
Woodside contended that the Petitions do not constitute a reliable basis for satisfaction that majority support for bargaining exists. Woodside asserts that the AWU obtained the Petitions on the basis of false or misleading representations. Ironically, given the number and nature of unsuccessful interlocutory applications, requests for adjournments and requests for extensions or lengthy periods to file materials made by Woodside, they now also contend that the Petition evidence is too old to be reliable. During the cross examination of Mr Heath and subsequently in its closing submissions, Woodside advanced a contention that the Petitions should not be relied upon because it was not impossible that some or all of the Petitions were fraudulently completed by some unknown person or persons.
In its Closing Submissions Woodside went further to submit that any decisions of the FWC “… that say, or assume, the appropriateness of the Petition Method in the absence of the consent of the parties are incorrect and should not be followed.”[142]
Woodside have much to say about the inappropriateness of methods of determining employee support but nothing to say about what might be an appropriate method.
The Directions proposed that the method to be adopted by the FWC to ascertain whether the majority of the Employee Group want to commence bargaining with Woodside would be as follows:
a. The AWU files with the FWC and serves on Woodside a sworn statement regarding the circumstances in which the Petitions were obtained.
b. The AWU files the Petitions with the FWC on a confidential basis and serves on Woodside a version with information identifying the relevant employee redacted.
c. Woodside files with the FWC on a confidential basis a list of its employees employed in the classifications specified in the Application.
d. The FWC compares the Petitions with the list of employees provided by Woodside in order to satisfy itself whether a majority of the Employee Group want to initiate bargaining with Woodside in respect of the Proposed Agreement.
The Directions also required Woodside to provide a copy of the Application, the Sworn Statement, the evidence and submissions filed in support and in response to the Application and a copy of the Directions to each member of the Employee Group. The Directions contained an invitation to each employee to contact Chambers if they wished to be heard in relation to the Application.
The Directions expressly invited Woodside to indicate whether it opposed the process for determining Employee support by way of the Petition Method and, if so, what alternative method Woodside proposed. Notwithstanding vigorously opposing the use of the Petitions, Woodside have declined to propose any alternative method but have vehemently opposed a contemporaneous ballot.
The Petition Method is the most common mechanism used in the determination of majority support determinations. However, subsection 237(3) of the FW Act does not give any primacy to the Petition Method or any other method to determine employee views. It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.
Subsection 237(3) of the FW Act leaves at the Member’s discretion the determination of the appropriate method for ascertaining employee preference. The Member is not restricted to the method proposed by the applicant in the originating application. For example, Members routinely impose additional or alternative evidentiary requirements, for example, a requirement to provide a statutory declaration as to the circumstances in which the petition/s was obtained or a requirement to post a notice or distribute directions giving employees an opportunity to be heard in relation to the majority support application.
This is consistent with the general approach to the question of onus in the FWC. For example, in Coal & Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[143] where the Full Bench said:[144]
“It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be ‘satisfied’ about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission’s procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission’s own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not.”
It is consistent with the FWC’s general powers to inform itself in any manner it considers appropriate.[145]
It is also consistent with the structure of section 237 of the FW Act. If the Member were restricted to the method proposed by the applicant, subsection 237(3) would have no work to do.
If the Petition Method is chosen should the Petitions be produced to Woodside in an unredacted form?
Woodside submits that if the Petitions are not produced in an entirely unredacted form, it is denied the opportunity to test their integrity and therefore denied procedural fairness.
The AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining. The AWU is concerned that employees who have signed the petitions will fear, or be subject to, retribution or recriminations for adopting a position in opposition to their employer and be dissuaded from participating in bargaining.
In the Production Decision, and during the course of the determination of the Application, I have considered the parties submissions in relation to production of unredacted copies of the Petitions. The Full Bench refused permission to appeal the Production Decision finding no error in the decision.
Ultimately, I determined that the AWU must provide copies of each of the Petitions to Woodside redacted only in relation to information that would directly identify the employee who signed the Petition. I am satisfied that this is appropriate in the circumstances of this Application.
In National Union of Workers v Lovisa Pty Limited[146], Deputy President Colman accepted that, ordinarily, there were reasonable grounds for unredacted petitions not to be provided to the employer given concerns about disclosure of the identity of employees. The Deputy President explained:[147]
“[67] Generally, petitions can be an acceptable method for the Commission to determine the question of majority for the purpose of s 237(3). And in the absence of some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that it is sufficient for the Commission to receive an un-redacted copy of the petition documents and for the employer to receive a redacted copy. In some cases a union will not object to providing the employer with the un-redacted petition but often, as was the case in this matter, employees have expressed some concern to their union about the disclosure to the employer of their signatures on a petition. In my view, an apprehensiveness of this kind is understandable as employees who sign a petition to bargain are taking a position that is in opposition to that of their employer, which obviously in such matters does not wish to bargain.”
See also the comments of Deputy President Asbury in Application by the CFMMEU[148] endorsing the views of Deputy President Coleman:[149]
“There are few circumstances I can conceive of where it would be appropriate to provide an unredacted petition signed by employees, indicating their support for the commencement of enterprise bargaining with their employer, to their employer. I share the view of Deputy President Colman expressed in Lovisa that it would be natural for employee-petitioners to be apprehensive about their identities being revealed to their employer, given they are taking a position that is aligned with a union in an effort to have their employer agree to something it evidently does not want to do, namely bargain. Employees are entitled to freedom of association – to join or not to join unions. Employees are not obligated to inform employers whether they are or are not union members, or whether they support a union in its endeavours to obtain an enterprise agreement with their employer. It is entirely reasonable and understandable that employees who are union members or who support a union seeking to negotiate an enterprise agreement, may wish to maintain confidentiality.” [FOOTNOTES OMMITTED]
Woodside have made clear to their workforce that they oppose bargaining.[150] In circumstances where their employer has made clear that it is opposed to collective bargaining and prefers a model of direct engagement, it is reasonable that employees may fear recriminations for seeking to engage in collective bargaining.
Mr Heath gave evidence that Woodside employees had expressed to him that they are fearful of being seen to support bargaining. This is consistent with the evidence that a majority of employees preferred to provide their personal email contact details to Mr Heath than communicate with the union via their work email address potentially subject to surveillance by Woodside.[151]
Woodside submit that National Union of Workers v Lovisa Pty Limited[152] is wrongly decided by a single member and a novel departure from existing law.
The concept that employee information might be kept confidential from the parties has a long history. See for example, the Enterprise Flexibility Agreements Test Case[153], in which the Full Bench of the former Australian Industrial Relations Commission rejected a contention that fairness required disclosure to an employer of documents being relied upon by the Commission for the purpose of determining the eligible union status of employees when approving an enterprise flexibility agreement. The Full Bench described the process as follows:[154]
“As suggested above, the Commission may establish a process for determining eligible union status whereby the union provides the Commission or the Registrar with a confidential statutory declaration identifying employees of the employer said to be union members, and the employer provides a confidential statutory declaration identifying all employees. The question of whether or not the union is an eligible union can then be resolved by the Commission comparing the information provided. In such circumstances the employer would be entitled to cross-examine the author of the statutory declaration provided by the union. Such a cross-examination could go to the process used by the person to ascertain the membership status of the employees identified. However, in our view the cross-examination cannot be used to require the disclosure of the identity of the employees said to be union members.”
In that case the Full Bench specifically rejected the submission that procedural fairness required disclosure of the material to the employer and concluded:[155]
“In our view, such a process will provide the employer applicant with an adequate opportunity to challenge or contradict the material advanced against it. Procedural fairness does not require the names of those employees said to be union members to be disclosed when eligible union status is contested. Such employees may not wish to have this information disclosed and in our view they are entitled to have their privacy protected by the Commission.”
The correctness of this practise was confirmed by the Full Bench in INPEX Australia Pty Ltd v The Australian Workers Union[156] in which INPEX made almost identical claims with respect to its purported rights to view unredacted petitions. The Full Bench confirmed that I could have taken the action of: [157]
“…simply rejecting what she considered to be INPEX’s ‘vigorous insistence’ on open access to the original petitions.”
The procedural fairness concerns of which Woodside claim to suffer can be addressed, and are regularly addressed in applications of this type, without the need for the employer to access information identifying individual employees.
Employer concerns as to the framing of the petition questions, the type of data gathered or the timing of data gathering are typically addressed by the provision of a blank or redacted petition as contemplated by the directions issued in this Application. In this Application Mr Heath’s Sworn Statement sets out the circumstances in which the Petitions were collected.
Concerns that employees have not freely expressed their own views and have been subject to verbal or physical pressure to sign a group petition is typically addressed by the use of individual petitions circulated by email such as occurred in this Application. In this Application each Employee has also specifically declared that they signed the Petition freely and without pressure.
“I am an employee of Woodside Energy Ltd {ABN 63 005 482 986} (“Company”). I understand the purpose of this document is to confirm whether I support bargaining for an enterprise agreement with the Company to apply to my employment. By signing below, I confirm my support for bargaining with the Company for an enterprise agreement to apply to my employment. I have done so freely and without pressure. I am aware this document will be provided to the Fair Work Commission.”
Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. In this particular Application the Petitions include the following data:
a. full name;
b. date of birth;
c. worksite;
d. job classification;
e. email address; and
f. mobile phone number.
Woodside were directed to file its records of these data fields and work email address on a confidential basis so that I could cross check each data field including where the petitioner provided a work rather than a personal email address.
…
I'm not into the wacky conspiracy theories that one person has invented 100 or 200 email addresses to collate information back to themselves. It just makes absolute no sense.”
The Petitions contain multiple data fields. Employees were also provided with the opportunity to complete their Petition using well known and respected identity security software, a majority of whom did so.
In assessing whether it is satisfied of a particular matter, the FWC at most considers whether the material before it establishes on the balance of probabilities that the circumstance is made out. The FWC is not required to exclude any possibility of a different conclusion.
The allegations made by Woodside appears to be entirely speculative. They have tendered no evidence of any person or persons with access to the multiple data fields contained in the Petitions with the motivation to provide such information to the AWU or the MUA. One presumes a multinational employer of Woodside’s scale has extensive measures in place to ensure the security of its employee’s personal records and the capacity to establish if this privacy has been breached. The limited number of emails expressing a desire not to bargain is not consistent with widescale fraud or in fact any fraud.
As a matter of precaution, I directed Woodside to provide me with the Final List of Employees so that I could match each of the data fields contained in the Petitions. This process identified multiple matching data sets including date of birth, mobile telephone number and personal email address and/or work email address, work site and classification.
In its Closing Submissions, Woodside appear to suggest that my direction that they provided the Detailed List of Employees was bipartisan:
“At that point, the Commission intervened on the side of the AWU to propose, for the first time and at its own initiative that Woodside produce the date of birth, worksite classification, personal email addresses and mobile numbers of relevant employees (Employee Information) so that this information could be cross referenced with the petitions.”
Such a suggestion is without basis. The allegation that the Petitions were fraudulently created as opposed to being obtained was not put by Woodside until the first day of Hearing during the cross examination of Mr Heath. This is clear even on the face of Woodside’s own submissions.[208]
“First, during the course of the cross-examination of Mr Heath on the first day of the hearing, it became clear that he – and the Commission – could not exclude the possibility that at least some of the petitions had not been completed by the persons whose names appeared on the petitions, due to the absence of any identity verification.”
Having been alerted to a new allegation that the Petitions were fraudulently created rather than fraudulently obtained, it was appropriate in carrying out the task required by subsection 237(3) of the FW Act to exercise my power under section 590 of the FW Act to require the production of evidence to enable me to verify the accusation made by Woodside.
Interestingly while Woodside assert that the Petitions were fraudulently created, they resisted my effort to substantiate that allegation:[209]
“PN963
THE DEPUTY PRESIDENT: Well, that's important to make sure that I've got the accurate information. So does Woodside have any objection to me having that information?
PN964
MR NEIL: That would certainly be personal information that - I would need to have a look at our Privacy Act obligation, and I'm not - I'd also need to think about whether it would achieve the purpose.
PN965
THE DEPUTY PRESIDENT: Okay, you do that, because that's an order I'm proposing to make and you can make some submissions about that tomorrow.”
See also the transcript at PN2739 – PN2773 after it become apparent that privacy arguments could not form basis upon which the direction might be reasonably resisted.
Similarly in its Closing Submissions, Woodside suggest that my direction that evidence be provided in relation to the dates upon which four undated Petitions were received was bipartisan.
Having been alerted to a new allegation, during the course of the Proceedings, that the four Petitions could not be relied upon because they were undated, it was appropriate to exercise my power under section 590 of the FW Act to require the production of evidence to enable me to verify the dates upon which the Petitions were received.
I note that Woodside made no objection to the Direction notwithstanding that they were invited to do so:
“PN1051
THE DEPUTY PRESIDENT: To the extent that the applicant has some evidence of when the undated ones were received, are you able to provide that documentation to the Commission?
PN1052
MR GIBIAN: We'll make every endeavour we can to do so and I'll report back, Deputy President, if it's convenient, about that process. Only because, standing here now, I don't know who we have to ask or where we get (indistinct) but we'll do that. I assume that there would be an email which would at least provide a date that they were received by the union.
PN1053
THE DEPUTY PRESIDENT: Okay. If it's tendered to the Commission, it can be done on a redacted basis. To the Commission unredacted, to the other side redacted, for information that would identify the individual.
PN1054
MR GIBIAN: May it please.
PN1055
THE DEPUTY PRESIDENT: Mr Neil, do you have any objection?
PN1056
MR NEIL: No.”
In accordance with the direction to do so the AWU provided evidence of the dates upon which the emails to which the undated Petitions were attached were received by Mr Heath. This evidence was supported by the witness statement of Mr Edmonds. Those emails indicated the Petitions in question were returned to Mr Heath on 24 April, 27 April or 9 May.[210]
There is no evidence before me which would cause me to conclude that the four undated Petitions should be considered invalid merely as a consequence of the date being omitted from the Petition in circumstances where an email exists to assist to determine the date on which the Petition was provided.
In its closing submissions, Woodside also submitted that the authenticity of the Petitions could not be assessed because the FWC lacked copies of the employee’s signatures against which Woodside would have verified the signatures if it had been given access to the unredacted Petitions.[211]
“[153] The one aspect of the petitions that could, arguably, be employed as probative identity verification in this case is the signatures. However, as discussed in paragraph [177], the Commission does not have the signatures of any Woodside employees before it, and cannot carry out such a cross-referencing exercise.
…
“[177] By way of illustration, had Woodside been given access to the original, unredacted petitions, it could have analysed the signatures appearing on the petitions against its own records, to the extent they exist, depicting the signatures of employees within the proposed cohort. Currently, there is no material before the Commission that would enable the Commission to verify whether any signature appearing on any petition is in fact the signature of the employee to whom it purports to belong.”
Having brought to my attention that it had an additional data source which I could use to verify Woodside’s allegation that the Petitions were unreliable and test the AWU’s assertion that the Petitions were reliable, I directed Woodside to provide on a confidential basis a copy of any employee signatures that it could produce within a reasonable time. Woodside strongly resisted the order, its representative Mr Longland sending an email to Chambers on 17 January 2023 stating that:
“direction 2, to the extent that Woodside has records of these signatures (which is not yet known), that review will take some time – likely weeks, rather than days, if such records exist at all. No register of signatures exists due to the phasing out of wet signatures a number of years ago, therefore the existence of records is limited, and compliance would require Woodside to review hard copy employment and other documents for all employees, at least some of which are not stored on site.”
In light of this response Chambers advised Woodside that a witness statement to this effect would be satisfactory compliance with the direction.
Ms Mussared the Manager Employee and Industrial Relations in a witness statement dated 19 January 2023 confirmed that:
“WEL does not maintain or retain a register of employee signatures.”
Woodside also suggested that the absence of the logo of the Offshore Alliance from a Petition is of itself a basis to conclude that the relevant Petition should be considered invalid. I am not satisfied that the omission of the logo of the Offshore Alliance from a Petition is of itself a basis to conclude that the relevant Petition should be considered invalid. The evidence required to establish that a majority support determination should be granted is evidence of employee views. It is not a necessary or practicable requirement that each employee in a cohort completes an identical template Petition or that in fact a template petition must be used.
If Woodside are genuinely concerned that the Petitions do not reflect the actual wishes of its workforce, then a ballot could efficiently and decisively establish this fact, however Woodside have resisted multiple opportunities to allow a ballot to occur. Even one funded by the AWU.
Do the Petitions accurately represent the desires of the Employee Group to commence bargaining – C. Alleged Staleness?
Woodside assert that the Petition evidence does not accurately represent the desires of the Employee Group because the Petition evidence is ‘stale’. Woodside assert that the Petition evidence is stale because of:
a. the period of time which has expired since the Petitions were collected;
b. evidence of employees expressing a desire not to bargain; and
c. changes in the makeup of the Employee Group.
The Petitions were collected in the period from 22 April 2022 and 2 June 2022. The Application was filed the following day.
Since the Application was filed delays in determining the Application include:
a. On 30 June 2022 Mr Longland foreshadowed making of an application for an order for production prior to 8 July 2022.[212] Programming of the matter was delayed pending receipt of the foreshadowed application. In the absence of any such application being filed and having considered the parties’ submissions with respect to appropriate programming orders, directions were issued to the parties on 12 July 2022.[213]
b. On 15 July 2022, Woodside made the Application to Produce.[214] On 20 July 2022, I issued the Production Decision[215] declining Woodside’s Application to Produce. On 21 July 2021 Woodside filed an appeal of the Production Decision.[216] The notice of appeal of the Production Decision sought a stay of the proceedings. The stay was declined by the presiding member of the Full Bench constituted to hear the Production Appeal. On 26 August 2022, a Full Bench of the FWC refused permission for the Production Appeal.[217]
c. On 25 July 2022, Woodside made the Recusal Application. The Recusal Application was listed for a hearing in Perth on 30 August 2022. On 14 September 2022, I issued the Recusal Decision[218] declining Woodside’s Recusal Application. On 16 September 2022, Woodside filed a notice of appeal in relation to the Recusal Decision.
d. On 20 September 2022, I extended the timeframes in the Extended Directions. On 20 September 2022, Woodside applied for the vacation of the Extended Directions until the appeal of the Recusal Decision could be determined.[219] On 21 September 2022 the parties were informed by email that I had refused Woodside’s application to vacate the Extended Directions but granted Woodside an extension of time to until 23 September 2022 to comply with the Extended Directions.[220]
e. On 21 September 2022, Woodside filed an application to amend the Recusal Appeal to add an appeal against the Vacation Decision. Woodside also sought a stay of the Vacation Decision and the Extended Directions. In light of this, on 23 September 2022 I extended time for Woodside to file its materials until 27 September 2022.
f. On 26 September 2022, the presiding member of the Full Bench constituted to hear the Recusal Appeal conducted a hearing in relation to the stay application made in connection with Woodside’s Recusal Appeal. The Presiding Member allowed Woodside’s amendment to its notice of appeal, refused Woodside’s stay application, and ordered that the Recusal Appeal be expedited so that it would be heard on 21 October 2022.
g. On 29 September 2022, Woodside sought to reagitate its application for production of unredacted copies of the Petitions. In the same correspondence Woodside sought a variation to the Extended Directions to permit it to file further materials after the AWU filed its submissions and evidence in support of the Application.[221]
h. On 10 October 2022, I listed the Application for the hearing of the merits of the Application on 8 November 2022. This hearing date was subsequently changed to 28 November 2022 to accommodate the convenience of Woodside’s counsel.i. Woodside sought and were granted an extension of one week until 27 October 2022 to file its materials in reply.
j. On 25 October 2022, a Full Bench of the FWC dismissed the Recusal Appeal.[222]
k. On Wednesday 2 November 2022, Woodside filed an originating application with the Federal Court, seeking relief under section 39B of the Judiciary Act 1903, and sections 21 and 23 of the Federal Court of Australia Act 1976. The application sought judicial review of the Production Decision, the Recusal Decision and the Recusal Appeal Decision. Woodside also sought an interlocutory injunction restraining me from further dealing with the Application. On 9 November 2022, Woodside requested that I vacate the directions currently in force and refrain from further dealing with the Application, pending the hearing and determination of the Federal Court proceedings. On 23 November 2022, the Federal Court handed down its decision dismissing the stay application.[223]
l. On 1 December 2022, Woodside filed written submissions in relation to the question of the appropriateness of a ballot as a method of determining employee support. At the Hearing on 1 December 2022 Mr Neil indicated that he wished to tender evidence in relation to the issue of the appropriateness of the ballot method of determining employee support and required a further adjournment in order to do so. I therefore granted the parties until 4pm on 7 December 2022 to file any evidence in relation to the question of the appropriateness of a ballot as a method for determining employee support for bargaining.
There would appear to be some injustice in a majority support determination being declined purely due to the passage of time in circumstances in which the delay has been primarily the consequence of the repeated unsuccessful interlocutory and procedural applications and appeals, requests for extensions of time to file materials and requests for adjournments.
The passage of time is, of itself, not fatal for an application for a majority support determination.[224]
“[73] In Transport Workers’ Union of Australia v M.J. Rowles Pty Ltd (MJ Rowles), the decision referred to by South32, the Commissioner observed that during the period between the signing of the petition and the application having been made, there had been turnover of employees and others had signed common law contracts. The Commissioner thereafter expressed reservations about the petition process at hearing and made suggestion that a secret ballot would provide a clear expression of the employees’ wishes. The parties agreed to such course.
[74] I am unpersuaded that it was simply the passage of time which led the Commissioner in MJ Rowles to express reservations about the acceptance of petitions. The Commission expressly referred to changes in the relevant employee cohort because of turnover and engagement on common law contracts.
[75] South32 concluded that as the petitions were around one year old, they were too historic to constitute probative representation of the current views of employees for the purpose of assessing majority at a point in time. I do not agree.
[76] As identified by the CEPU, South32 has not filed any direct evidence to the effect that the employees who signed the petition no longer want to bargain, and it is after all South32 who has raised this issue regarding the adequacy of the evidence.”
In any event even where there is evidence of changes in the makeup of the cohort or of changes in employee views with respect to bargaining that is also not necessarily fatal to an application for a determination. Rather it may be the basis on which the FWC may determine to satisfy itself using a different mechanism than the Petition Method.[225]
Woodside submit that changes in the makeup of the Employee Group cause the Petition evidence to be stale.
According to the Final List of Employees in the period from 22 April 2022 to 2 June 2022 nine employees left the Employee Group by way of resignation, transfer or promotion, none of whom had completed a Petition.[226]
According to the Final List of Employees between 3 June 2022 and 1 December 2022, nine employees left the Employee Group via resignation, transfer or promotion. Only three of these individuals had completed Petitions. During that same period seven individuals joined the Employee Group.
Even if all seven of the new employees did not support bargaining the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
Woodside also assert that employee views have changed and rely on the evidence of Ms Manuel that:
“[16] WEL have offered employees a pathway to withdrawing their support for bargaining for an enterprise agreement covering their employment. That pathway has been incorporated into various internal communications to the AWU’s proposed cohort, and state:
If you do not want to get into enterprise bargaining, the best thing to do is to send an email to [email protected]. Any information received in this way will be handled sensitively – it can only be viewed by two people in the organisation and we fully intend to keep that information confidential unless you agree otherwise.
All the email needs to say is: I do not wish to bargain for an enterprise agreement to cover my employment. And make sure that your full name is included.If you’re not comfortable doing this, please speak to your OIM for guidance on the best way forward. And you’re always welcome to contact me.
I am informed that the current number of emails received at the above address is 13.”
Woodside were directed to file copies of the emails referred to by Ms Manuel. A review of those emails reveals that:
a. Two of the emails were sent by the same employee.
b. One email does not state that the employee does not wish to bargain. Rather the email informs Woodside that the employee had contacted the union and requested that they be removed from the union’s mailing distribution list.
c. One email comes from an individual not included in Woodside’s Final List of Employees.
d. One email is from an employee who left the Employee Group in May 2022.
e. Only two are from employees who completed Petitions.
Notwithstanding efforts by Woodside to convince its workforce that they should not support collective bargaining, including providing employees with a confidential email address to express their views, the evidence is that as of 27 October 2022 only two employees have changed their mind about whether they support bargaining.
Excluding the two Petitions filed by individuals who subsequently indicated to Woodside that they did not wish to bargain the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
What time should be determined by the FWC?
In satisfying itself that there is majority support for enterprise bargaining the FWC must determine by reference to time the cohort of employees from which the views of the majority is to be determined.[227]
Where there is a highly casualised workforce, the authorities recognise that the meaning of 'time' in the context of s 237(2)(a)(i) can mean a period of time rather than single date (Relevant Period).[228]
Once the Relevant Period has been fixed, the FWC must then determine which employees are or were employed during the period and then whether, at the time of making its decision, a majority of those employees wish to bargain.[229]
The AWU submits that for the purposes of s 237(2)(a)(i), the time determined by the FWC should be the date that the AWU stopped collecting petitions. The AWU collected bargaining petitions from employees between the dates of 22 April 2022 and 2 June 2022 and made the Application the following day on 3 June 2022.
Woodside submit that the date should be 1 December 2022.
In CEPU v South32[230] Deputy President Beaumont followed the decisions in both Kantfield Pty Ltd v AWU[231] and National Union of Workers v Lovisa Pty Ltd[232], and determined that the time for the employee cohort to be fixed was the date when the union ‘ceased garnering signed petitions’.
I am satisfied that it is appropriate to set the time for the purposes of s 237(2)(a)(i) as 2 June 2022 because this fixes the cohort of employees from which majority support must be determined to a point in time when the employee cohort was the same as when the AWU collected petitions. This is inherently fair and will achieve the purpose of the provision.
Having set the date as of 2 June 2022, it is necessary to take into account the submissions and evidence of the parties as to any changes to the workforce or attitudes of the workforce toward bargaining in the period between the filing of the Application and the making of this decision.
According to the Final List of Employees between 3 June 2022 and 1 December 2022, nine employees left the Employee Group via resignation, transfer or promotion. Only three of these individuals had completed Petitions. During that same period seven individuals joined the Employee Group. The change in the makeup of the Employee Group has therefore been relatively minor. Even if all seven of the new employees did not support bargaining the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
Notwithstanding efforts by Woodside to convince its workforce that they should not support collective bargaining, including providing employees with a confidential email address to express their views, the evidence is that only two employees who had completed a Petition have changed their mind about whether they support bargaining.
Of the remaining emails received opposing bargaining one employee has since left the Employee Group and one is not identified by Woodside as ever having been within the Employee Group.
The limited number of emails expressing an opposition to bargaining causes me to believe that employee views have not changed significantly since 2 June 2022.
Is it reasonable in all the circumstances to make the Determination?
Before making a determination the FWC must be satisfied that it is reasonable in all the circumstances to do so.
The AWU submit that it is reasonable to do so because a majority of the Employee Group have indicated by way of Petition that they wish to engage in collective bargaining with their employer rather than negotiate their employment conditions individually with their employer.
Woodside submit that it is not reasonable to do so because the Petition evidence that a majority of the Employee Group wish to bargain is unreliable because of the alleged misrepresentations, because Petitions lack integrity and because the Petition evidence is now ‘stale’.
Woodside assert that negotiating individually with its employees in the manner in which it has for the last thirty years has delivered superior outcomes to its workforce. It insists that it is unfair that it should not be permitted to continue to operate outside the statutory bargaining scheme.
Woodside also submit that it would be unreasonable to make the Determination because statements made by the Offshore Alliance and its officials are inconsistent with the objects of the FW Act which seek to promote harmonious workplace relations and because the AWU did not earlier disclose that it received email addresses anonymously.
Woodside provided the Employee Group with its views as to why the workforce should not press for bargaining to commence. See for example the notice issued by Woodside in July 2022 to the Employee Group setting out the reasons why Woodside did not wish to commence bargaining for a collective agreement and asserting that the Offshore Alliance had falsely asserted that the INPEX EBA provided superior conditions.[233]
The Directions also required Woodside to provide copies of its evidence and submissions in these proceedings to the Employee Group.
To the extent that any member of the Employee Group was misled or deceived by the AWU or its officials those employees have now for many months been in possession of information from Woodside to ‘correct’ any misconception or confusion.
Employees have had the opportunity to retract their Petition and/or declare that they do not wish to bargain to Woodside, the AWU or to Chambers. Only two employees who signed Petitions have informed Woodside, the AWU or Chambers that they no longer wish to bargain.
Woodside did not call as witnesses any employee who claimed to have been forced, misled or deceived into signing a Petition not withstanding having knowledge of the identity of at employees who did not wish to bargain.
The evidence does not support an assertion that the Petition evidence is stale either by way of evidence of a change in the makeup of the cohort or a change in employee views. Of the 18 employees who have left the cohort, only 3 had filed Petitions. Only 7 employees have joined the cohort. The majority is not so small that even if each new employee who joined the cohort was not in favour of bargaining, the majority would be lost. Only two employees who signed Petitions have informed Woodside, the AWU or Chambers that they no longer wish to bargain.
In all the circumstances I am satisfied that the Petition Method is an appropriate method to work out whether a majority of the Employee Group wish to bargain with Woodside for the Proposed Agreement.
The fact that Woodside prefer to negotiate individually with its workforce does not weigh against the granting of the Determination. In fact, this is the precise reason why the statutory power to make the Determination exists, to compel employers who would prefer not to negotiate collectively to do so.
Nor does Woodside’s assertion that it offers employees ‘industry leading terms and conditions’ weight against granting the Determination. As noted in CFMEU v CBI Constructions[234]:
“… These terms and conditions, CBI argues, are current and competitive. The assertion seems to be that as the actual terms and conditions are current and competitive then that is not reasonable in all the circumstances for me to make the MSD. This to me seems to misunderstand the nature of bargaining and the role of FWA in MSD applications. It is not for FWA to make any judgments at all about the appropriateness or otherwise of the terms and conditions applying or of any sought, particularly at this juncture. FWA’s role is limited to ascertaining whether a majority wanted to bargain for an enterprise agreement that would cover them.”
The granting of a determination does not require the parties to conclude an agreement. If Woodside’s current model for determining terms and conditions of employment does in fact produce superior outcomes as asserted by Woodside, then the workforce are unlikely to vote to approve any proposed agreement.
It is to be expected that bargaining in a hotly contested industrial environment will often be robust. Aspects of communications by both Woodside and the AWU to date might be characterised as emotive and hyperbolic and unhelpful in achieving the object of the FW Act to establish harmonious workplaces. A workforce should not be denied its statutory right to press for collective negotiations because of the conduct of a union or an employer. Once bargaining commences, if the bargaining parties behave in a manner contrary to the good faith bargaining requirements, then remedies are available under the FW Act.
Conclusion
The AWU have standing to make the Application. The Application was made in accordance with section 236 of the FW Act.
I am satisfied that the Employee Group is fairly chosen.
In all the circumstances I satisfied that the Petition Method is an appropriate method to work out whether a majority of the Employee Group wish to bargain with Woodside for the Proposed Agreement.
On the evidence before me I am satisfied that a majority of the Employee Group employed as of 3 June 2022 want to bargain with Woodside for the Proposed Agreement.
Taking into account the submissions of the parties including evidence of changes in the make up of the Employee Group and changes in the views of employees with respect to bargaining, it is reasonable to make the Determination.
The Determination will come into operation on the date this Decision is published.
An order to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr M Gibian SC, for the Applicant.
Mr I Neil SC, for the Respondent.
Hearing details:
2022
PERTH
28, 29 November and 1 December
Final written submissions:
Applicant’s final written submissions 12 December 2022
Respondent’s final written submissions 19 December 2022
Applicant’s final written submissions in reply 22 December 2022
[1] Digital Court Book (DCB) 102-103.
[2] Ibid 8-12.
[3] Ibid 13-17.
[4] Ibid18-24.
[5] Ibid 320.
[6] Ibid 28-31.
[7] Ibid 28-31.
[8] Ibid 28-31.
[9] Ibid 28-31.
[10] Ibid 32-94.
[11] Ibid 95-98.
[12] Australian Workers Union v Woodside Energy Ltd[2022] FWC 1892.
[13] DCB (n 1) 102-104.
[14] Ibid 105-106.
[15] Ibid 107-111.
[16] Woodside Energy Limited v Australian Union of Workers[2022] FWCFB 168.
[17] [2022] FWC 2236.
[18] DCB (n 1) 284-304.
[19] Ibid 305-310.
[20] Ibid 311-312.
[21] Ibid 311-312.
[22] Ibid 366-369.
[23] Ibid 365-366.
[24] Woodside Energy Limited v Australian Union of Workers[2022] FWCFB 192.
[25] DCB (n 1) 464-498.
[26] Ibid 499.
[27] Woodside Energy Limited v Australian Workers Union [2022] FCA 1391.
[28] Ibid at [54]-[57].
[29] Woodside Energy Limited v Australian Workers Union (n 27) at [63].
[30] Exhibit R5.
[31] Warrell v Walton (2013) 233 IR 335, 341 [22].
[32] DCB (n 1) 102.
[33] Ibid 324.
[34] Ibid 325-326.
[35] Ibid 324.
[36] Ibid 327.
[37] Ibid 331.
[38] Ibid 326.
[39] Ibid 328-329.
[40] Ibid 330.
[41] Ibid 330-331.
[42] Ibid 329-330.
[43] Ibid 333.
[44] Ibid 334.
[45] Ibid 335.
[46] Ibid 336.
[47] Ibid 337.
[48] Ibid 102.
[49] Transcript PN905-PN909.
[50] DCB (n 1), 56-58.
[51] Ibid 56-58.
[52] Ibid 61-64.
[53] Ibid, 65-68, 402.
[54] Ibid 69-71.
[55] Ibid 69-71.
[56] Ibid 69-71.
[57] Ibid 99.
[58] Ibid 99.
[59] Ibid 99.
[60] Ibid 103.
[61] Ibid 72-75.
[62] Ibid 76-78.
[63] Ibid 79-80.
[64] Ibid 79-80.
[65] Ibid 79-80.
[66] Ibid 83.
[67] Ibid 84.
[68] Ibid, 85.
[69] Ibid 86.
[70] Ibid 87 - 90.
[71] Ibid, 91.
[72] Ibid 92.
[73] Ibid 93.
[74] Ibid 94.
[75] Ibid 13-14.
[76] Ibid 15.
[77] Ibid 17.
[78] Ibid 403, 405-408.
[79] Ibid 409-410.
[80] Ibid 411-412.
[81] Ibid 419-420.
[82] Ibid 417.
[83] [2009] FWAFB 668 at [25].
[84] Fair Work Act 2009 (Cth) (FW Act) s.236(1).
[85] Ibid s.236(2).
[86] Ibid s.235(1).
[87] DCB (n 1) 343.
[88] Woodside Energy Ltd v Australian Workers Union (n 24) at [42].
[89] [2015] FWC 2561.
[90] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124.
[91] DCB (n 1) 13-17.
[92] 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.
[93] QGC v The Australian Workers’ Union[2017] FWCFB 1165; (2017) 268 IR 241 at [44].
[94] Ibid.
[95] Ibid .
[96] See, for example, Australian Workers' Union v Alsco Pty Ltd[2021] FWC 1680 at [24]-[26].
[97] 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.
[98] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (n 97) at [8]; Alcoa of Australia Ltd v CFMEU[2015] FWCFB 1832 at [24].
[99] INPEX Australia Pty Ltd v The Australian Workers’ Union[2021] FWCFB 1038 at [33].
[100] National Union of Workers v ePharmacy Pty Ltd[2015] FWC 3819.
[101] [2012] FWAFB 8461; (2012) 228 IR 5.
[102] CFMEU v ResCo Training and Labour Pty Ltd[2012] FWAFB 8461; (2012) 228 IR 5 at [35].
[103] Transcript PN2583.
[104] Transcript PN183 and PN623-625.
[105] DCB (n 1) 403, Transcript PN626.
[106] Transcript PN183.
[107] DCB (n 1) 335.
[108] Woodside’s own evidence is that only 10% of Supervisors have worked on different assets in the last five years. It is unclear whether that figure includes supervisors transferring between offshore facilities. Woodside has provided no evidence with respect to supervisors moving between business entities. See DCB (n 1) at 488.
[109] Ibid 335.
[110] Transcript PN627-628.
[111] Transcript PN183.
[112] DCB (n 1) 334.
[113] Mr Ramsden acknowledges that this is part of a Superintendents role see DCB at 497.
[114] Mr Ramsden acknowledges that this is part of a Superintendents role see DCB (n 1) at 497.
[115] This is consistent with the evidence of Mr Ramsden at DCB (n 1) 334.
[116] Ibid 92.
[117] Ibid 325-326.
[118] Ibid 404.
[119] Ibid 326.
[120] Ibid 326.
[121] Ibid 326.
[122] Ibid 328-331.
[123] Ibid 326.
[124] Ibid 327.
[125] Ibid 328-331, 495, Transcript PN2922-2943.
[126] Ibid 333.
[127] Transcript PN2616 and PN2635-PN2641.
[128] DCB (n 1) 493.
[129] Ibid 492-493.
[130] Cimeco Pty Ltd v CFMEU (n 98) 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, [26].
[131] Cimeco Pty Ltd v CFMEU (n 98) 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 [26].
[132] 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, [26].
[133] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited (n 92)citing Cimeco [21].
[134] Hydrocarbons Industry (Upstream) Award 2020, Schedule A clauses A.4.5, A.4.6 and A.4.7.
[135] DCB (n 1) 335.
[136] Ibid 325; Transcript PN2674-PN2675.
[137] Ibid 493.
[138] Ibid 492-493; Transcript PN 2676-PN2679 and PN2685-PN2687.
[139] Ibid 335; Transcript PN2678.
[140] Ibid 492; Transcript PN 2676-PN2679.
[141] Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Veolia Water Operations Pty Ltd[2015] FWC 2561.
[142] Woodside Closing Submissions filed on 19 December 2022 at [189].
[143] (1997) 73 IR 311.
[144] Ibid at 317.
[145] FW Act (n 84) s.590(1).
[146] [2019] FWC 2571.
[147] Ibid at [67].
[148] [2022] FWC 690.
[149] Ibid at [163].
[150] DCB (n 1) 409-422, Exhibit A2.
[151] Transcript PN715-PN725, DCB 80.
[152] National Union of Workers v Lovisa Pty Limited (n 146).
[153] (1995) 59 IR 430.
[154] Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 445.
[155] Enterprise Flexibility Agreements Test Case (1995) 59 IR 430
[156] INPEX Australia Pty Ltd v The Australian Workers’ Union[2020] FWCFB 5321; (2020) 301 IR 424.
[157] Ibid at [28].
[158] [2022] FWC 690.
[159] National Union of Workers v Lovisa Pty Limited (n 146) at [58].
[160] CFMEU v MacKellar Mining Pty Ltd (n 148).
[161] Woodside Closing Submissions filed on 19 December 2022 at [177].
[162] Esso Australia Pty Ltd v. AWU and Ors [2017] FWCFB 2200.
[163] Woodside Closing Submissions filed on 19 December 2022 at [177].
[164] DCB (n 1) 350-353.
[165] CEPU v South32 Worsley Alumina Pty Ltd[2021] FWC 3784 at [127].
[166] Transcript PN3268-PN3274, PN3412-PN3423.
[167] CEPU v South32 Worsley Alumina Pty Ltd (n 165).
[168] Ibid.
[169] The AWU provided an explanation of the basis of these posts in the Annexure to their Closing Submissions filed on 12 December 2022.
[170] DCB (n 1) 53; Transcript PN3948-PN3956.
[171] DCB (n 1) 91.
[172] DCB (n 1) 477-478.
[173] Exhibit A1.
[174] DCB (n 1) 92.
[175] Ibid 94.
[176] Ibid 477-478.
[177] Transcript PN1898-PN1903.
[178] DCB (n 1) 44; Transcript PN3778-PN3787.
[179] Ibid 184.
[180] Transcript PN3866-PN3873.
[181] Transcript PN3877-PN3888.
[182] DCB (n 1) 480.
[183] Ibid 56-57.
[184] Ibid 402.
[185] Exhibit A1.
[186] Transcript PN3507-PN3523 and Transcript PN3644-PN3665.
[187] DCB (n 1) 56-57.
[188] Transcript PN1214.
[189] DCB (n 1) 56-57.
[190] Ibid 405-408.
[191] Ibid 411-412.
[192] Ibid 403.
[193] Ibid 56.
[194] Ibid 419.
[195] Ibid 30.
[196] Ibid 490-491.
[197] CFMEU v MacKellar Mining Pty Ltd (n 148).
[198] Ibid at [167].
[199] [2015] FWC 2561.
[200] DCB (n 1) 100-102.
[201] Ibid 99.
[202] Ibid 102, Transcript PN777-PN783, PN770-772.
[203] Transcript PN766-PN769.
[204] Exhibit A4.
[205] Woodside Closing Submissions filed on 19 December 2022 at [115]-[116].
[206] Transcript PNPN903-PN909.
[207] Ibid PN911-PN925.
[208] Woodside Closing Submissions filed on 19 December 2022 at [74].
[209] Transcript PN963 to PN965.
[210] Exhibit A4.
[211] Woodside Closing Submissions filed on 19 December 2022 at [153] and [177].
[212] Ibid 320.
[213] Ibid 28-31.
[214] DCB (n 1) 32-94.
[215] Australian Workers Union v Woodside Energy Ltd (n 12).
[216] Ibid, 105-106.
[217] Woodside Energy Limited v Australian Union of Workers (n 16).
[218] Woodside Energy Limited v Australian Union of Workers (n 17).
[219] DCB (n 1) 284-304.
[220] Ibid 311-312.
[221] Ibid 366-369.
[222] Woodside Energy Limited v Australian Union of Workers (n 24).
[223] Woodside Energy Limited v Australian Workers Union (n 27).
[224] CEPU v South32 Worsley Alumina Pty Ltd (n 165) at [73]-76].
[225] NUW v Cotton On Group Services Pty Ltd[2014] FWC 6601 at [36].
[226] This evidence differs from information provided by Woodside in Exhibit R6. I have assumed that contained in the Final Employee List as the most recent data is the most accurate.
[227] Kantfield Pty Ltd v AWU[2016] FWCFB 8372 at [35].
[228] See NUW v Lovisa (n 146) at [36] which was adopted in AWU v Legeneering Australia Pty Ltd[2020] FWC 4138.
[229] Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers’ Union[2016] FWCFB 8372; (2016)
266 IR 1 at [37].
[230] CEPU v South32 Worsley Alumina Pty Ltd (n 165) at [71].
[231] Kantfield Pty Ltd v AWU (n 227) .
[232] National Union of Workers v Lovisa Pty Limited (n 146).
[233] Ibid, 409-410.
[234] [2010] FWA 2164.
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